CRITICAL HEALTH LAW UPDATE: COAST TO COAST

British Columbia

Name of Presenter: Stacey Grubb; Ms. Grubb would like to thank Talya Schapiro for assistance with this summary.

Current Political Environment:

 On November 3, 2010, Gordon Campbell resigned as premier of British Columbia (B.C.). In February 2011, Christy Clark was voted the liberal party leader in B.C., and took the oath of office as premier. Since Clark did not have an existing seat in the legislature, a by-election was called for the Vancouver-Point Grey riding for May 11, 2011. Clark succeeded in the by-election and is now the MLA for the Vancouver-Point Grey riding.

 Adrian Dix was voted the leader of the NDP in B.C. in April 2011.

 One might expect this political landscape to result in a polarized split between right and left on the issue of public versus privatized health care in B.C., but this may not be the case. Previously, Dix has taken the position that “socialized medicine is good for B.C. business”. However, following his victory as NDP party leader, it has been said that he has taken a more supportive position towards private sector investment and enterprise.

 One of the key issues facing Christy Clark and the Liberal party at this time is the HST referendum. The referendum was supposed to be held in September 2011, however, now it is being held by mail-in ballot. The ballots will be mailed out in June and most British Columbians should have a ballot by June 24, 2011. Ballots must be returned to Elections BC by July 22, 2011.

New Cases/Appeals:

Lee Carter, Hollis Johnson, Dr. William Shoichet and the British Columbia Civil Liberties Association v. Canada (Attorney General)

In April 2011, the B.C. Civil Liberties Association filed a lawsuit with the Supreme Court of British Columbia, challenging the provisions of the criminal code that ban assisted suicide in Canada for being unconstitutional. These provisions are alleged to be unconstitutional because they deny individuals of the right to have control over choices that are fundamental to their dignity and because they restrict the liberty of physicians to deliver end of life care to incurably ill patients.

This lawsuit replicates the Sue Rodriguez legal battle. She lost in a controversial 5-4 decision of the Supreme Court of Canada in 1993. Advocates note that there has been an opinion change since 1993 and several countries and states, including Oregon and Washington now have right-to-die laws. As well, it has been noted that the makeup of the Supreme Court of Canada has markedly changed since 1993 and that the justice who wrote a dissent passionately defending the right to die, is now the Chief Justice.

PHS Community Services v. Canada (Attorney General), 2010 BCCA 15

Insite is a facility where addicts can inject their drugs using sterile needles, under a nurse's supervision. The federal government claimed that its constitutional power over criminal law should be paramount over the province’s jurisdiction over health care and that this principle should govern the decision regarding whether the clinic should remain operational.

The B.C. Supreme Court in 2008 held that absent Charter considerations, s. 4(1) and 5(1) of the Controlled Drugs and Substances Act prevailed and the applications for declarations that the sections did not apply on the basis of interjurisdictional immunity were dismissed. However, the B.C. Supreme Court held that shutting down a health care facility that saves lives and curtails the spread of infectious disease violates the Charter of Rights guarantees of life, liberty and security of the person. The blanket prohibitions set out in the sections were not rationally connected to a reasonable apprehension of harm, and in fact, contributed to the very harm that it sought to prevent.

HELD: The B.C. Court of Appeal ruled in January 2010 that the operation of the clinic fell within the province’s jurisdiction over health care. Therefore, the federal government cannot interfere and force the clinic’s closure. In its ruling, the B.C. Court of Appeal held it was not necessary to rule on Insite's constitutional right to remain operational because it had already decided that the clinic fell within the jurisdiction of the province. The federal government appealed to the Supreme Court of Canada for leave to appeal. Leave by the Supreme Court of Canada was granted on June 24, 2010. There were no reasons included in the leave decision.

The Supreme Court of Canada heard argument in this case on May 12, 2011. In the government’s written submissions, it warned the court to “avoid becoming a ‘super legislature’ by ruling on the wisdom of federal policy decisions.” The B.C. government countered stating that crux of the case is “which level of government has the final say on the local delivery of vital health care services within a provincially authorized health care facility.”

In 2003, Insite opened under a three year exemption from Health Canada, so that staff and clients were shielded from criminal charges. In 2008, the Harper Conservatives refused to renew the Health Canada exemption that permitted the facility to operate in contravention of criminal drug laws. There is much evidence that Insite has been a great success as North America’s first supervised injection site, including preventing overdose deaths, containing the spread of HIV/AIDS, reducing public disorder in the neighbourhood in which it is located, and increasing the number of addicts entering detox and treatment programs. Research has shown that “fatal overdoses dropped 35% in the vicinity of Insite in the two years after it opened and it’s estimated that Insite will save the health- care system $14 million and prevent more than 1,100 HIV infections over a 10- year period.” [Toronto Star; May 12, 2011]

Clements (Litigation Guardian of) v. Clements, 2010 BCCA 581

This test examines the appropriate test for the causation analysis in personal injury claims.

Plaintiff and defendant were wife and husband. The defendant was an experienced motorcycle rider. The parties were on a motorcycle trip together. It was raining and when the motorcycle attempted to pass another vehicle, its rear tire rapidly deflated due to puncture. The motorcycle wobbled and eventually capsized. As a result of the accident, the plaintiff suffered a severe traumatic brain injury. The trial judge found that the defendant was negligent for travelling at an excessive speed and allowing the motorcycle to be overloaded by more than 100 pounds. The trial judge applied both the “but-for” test and the material contribution test and found that causation was established using the material contribution test.

HELD: Action should have been dismissed once trial judge found that causation was not proven under the “but-for” test. This was not a case that warranted the application of the material contribution test to determine causation. The material contribution test is not to be applied to determine factual causation. This test establishes legal causation where there is a possibility that the defendant’s negligent actions could have been a factual cause for the injury. The material contribution test should not displace the “but for” test.

Mikhail v. Northern Health Authority, 2010 BCSC 1817 Defendant doctors were involved in mother's obstetrical care during pregnancy, labour and delivery of child by c-section. Mother and child (plaintiffs) brought action alleging various health issues, including mother's intractable post-partum depression and child's failure to thrive. These conditions were alleged to have developed because the defendants allowed labour to continue for too long before ordering c-section. Defendants applied for summary judgment.

HELD: Application allowed; action dismissed. Defendants were not found to have been negligent. The plaintiffs failed to prove that the defendants’ conduct caused or contributed to the damages alleged. To succeed in their claim, the plaintiffs would have had to demonstrate the accepted standard of care and establish the defendant’s failure to meet the requisite standard. The standard of care must be proven through the evidence of a qualified expert. It cannot be inferred from evidence before the court. More than a bare assertion by the plaintiff is required to meet this burden of proof.

Sivertson (Guardian ad litem of) v. Dutrisac, 2011 BCSC 558

The plaintiffs claimed damages for brain injury suffered by the infant plaintiff while in the care of the defendant, Dutrisac, the owner and operator of a licensed daycare. The plaintiffs’ claim against the defendant, Capital Health Region (“CHR”), was that its licensing inspectors were negligent in their inspection of the daycare, in failing to follow up on matters reported to them and in their annual inspections. CHR brought a Summary Trial application to dismiss the plaintiff’s claim against it.

HELD: Action against CHR was dismissed. Any private law duty of care which may have arisen would have been negated for overriding policy reasons, as in the Cooper case. This is because the licensing officers exercised both policy and quasi-judicial functions. The type of decisions that they made involved a balancing of both public and private interests. Therefore, this type of decision would be inconsistent with a duty of care being owed to the children and families directly. There was no evidence of bad faith on the part of the defendant, CHR, or its employees. Therefore, statutory immunity from liability was not denied. Causation was not established because there was no evidence that but for the alleged negligence of the CHR that the injury would not have occurred. The plaintiffs did not prove that there was a private duty of law owed by the defendant, CHR, or that assuming such a duty existed, that the defendant failed to meet the requisite standard of care. Cojacaru (Guardian Ad Litem of) v. B.C. Womens’ Hospital, 2011 BCCA 192

The question in this appeal was whether the trial judge committed an error of law because the reasons in his judgment were largely a reproduction (without attribution) of the successful party’s written closing submissions. The matter before the trial judge was a medical-negligence action, whereby Monica Cojocaru claimed damages for the brain damage her son, Eric Victor Cojocaru, suffered during his birth at the B.C. Women’s Hospital and Health Care Center. The trial judge found each of the defendants liable in negligence and awarded total damages of over $4 million. However, the trial judge did not apportion liability between the parties.

HELD: Appeal allowed and new trial ordered. Providing reasons for judgment justifies and explains the result to the losing party, provides for informed consideration of the grounds of appeal and confirms to the public that justice has been done. The trial judge did not exhibit any sign that he had grappled with the difficult issues confronting him – he reproduced 84 pages of the plaintiff’s submissions without any critical analysis. The trial judge did not deal with the uncontradicted defence argument on the issue of causation submitted at trial. As such, it could not be said that the trial judge discharged the losing parties of the reason for their loss. The reasons did not allow for meaningful appellate review.

New/Impending Legislation:

 Patient Care Quality Review Board Act: Brought into force on October 15, 2008. The goal of the Act was to improve patient satisfaction and public confidence in the health care system by developing a review process that was open and accountable to the public. The Act standardized and formalized the complaint process and established a Patient Care Quality Office (“Quality Office”) in each Health Authority. The Act also established Patient Care Quality Review Boards (“Boards”) to allow patients the opportunity to have their complaint addressed by a review board. If the complainant is not satisfied with the response from the Quality Office, the complainant may apply to the Board in their region to review the decision of the Quality Office.

The first annual report was released in June 2010. The Boards made 104 recommendations for quality improvement – 102 to the Health Authorities and 2 to the Minister. Eighty-seven of the recommendations were to improve the quality of patient care and 15 were to improve the complaints process. In 16 of the reviews, the Boards identified opportunities for the Quality Offices to improve the quality of their investigation or response. The recommendations made have resulted in new and amended policies and protocols, better communication tools for providers and patients, new education and training for staff, standardized procedures, and enhanced compliance with policy and professional practice standards. The process has improved communication with patients throughout the complaints process, which has helped restore patients trust and confidence in the health care system.

 Health Care Cost Recovery Act: Passed May 29, 2008 and brought into force by Regulation, effective April 1, 2009. The Act allows the Ministry of Health Services to recover all health care costs paid by government related to a beneficiary’s injury that was caused by a wrongful act of a third party. In Gosselin v. Shepard, BCSC 755, the B.C. Supreme Court clarified that a plaintiff cannot retroactively include a claim for recovery in an action that commenced prior to when the Act came into force.

 Health Professions Act: Significant changes were made to the HPA in 2009 codifying a broad system for resolution of complaints (and other matters investigated by colleges) by consent. Section 32 allows early intervention by the Registrar by consent, however, only if the Registrar is authorized by the board. There is narrow application and narrow scope of disciplinary measures available. There is no requirement for public notice when proceeding under this section. The complainant may apply for review to the Health Professions Review Board.

Section 33(6) and 36 provides the Inquiry committee with broad discretion to resolve complaints and other matters that it has investigated prior to the issuance of a citation, including any appropriate action to resolve the matter between the complainant and the registrant (s. 33(6)(c)) and may include reprimand or remedial action (s. 36(1)) by consent. There is no obligation to notify the public of a resolution under s. 33(6)(b), however, there is a requirement to notify of “serious matters” resolved under s. 36(1).

Section 37.1 pertains to consent resolution anytime after a citation has been issued and before the discipline committee has rendered a decision in the resulting hearing. It generally flows from a registrant’s “written” proposal for resolution by consent.

 New West Partnership Trade Agreement Implementation Act: Provision in NWPTA provides that the professional regulators (i.e. the health colleges and others) of one province must recognize the certification granted by another regulator from another province without any requirement for material additional education/training/etc. for certification.

 Adult Guardianship and Planning Statutes Amendment Act, 2007: Provisions related to incapacity (or personal) planning (part of this Act) will be revised effective September 1, 2011. The new incapacity planning legislation will provide simple, cost-effective planning options through advance directives, enduring powers of attorney and representation agreements. Advance directives allow adults to plan decisions about health care treatment while they are still capable. They are provided to health care professionals if the person becomes incapable.

New Policy Directions:

 The provincial government has been in a transitional state following the resignation of Gordon Campbell and the election of Christy Clark as premier. As of March 2011, the B.C. legislature had only sat for four days in the past eight months.

 The preliminary direction that Clark has given is that families are at the centre of the government’s decision making process. The focus of cabinet will be on creating jobs and building a strong community because this will support families and ensure key investments in critical services like health and education.

Proposed Future Initiatives

Several major public health care initiatives were launched in early 2011.

 In March 2011, B.C.’s largest health care project, a major expansion of existing facilities in Surrey, was announced. This project includes an eight-storey critical care tower and a new, larger emergency department that will be five times the size of the existing facility. The expansion also includes a new perinatal centre of excellence, a larger adult intensive care unit and an expanded clinical academic campus. In total, 151 new patient beds will be added.

 The initial stages of the redevelopment of B.C. Children’s and B.C. Women’s Hospitals commenced in April 2011. Phase 1 of this project involves redeveloping the Clinical Support Building which will house crucial support services and clinical faculty.

 In April 2011, Christy Clark, announced that over $13 million dollars will go towards a new Ronald McDonald House. The Ronald McDonald House supports families in B.C. who have a sick or disabled child and must travel to obtain treatment at B.C. Children’s Hospital in Vancouver.

Private Health Care Developments:

 In 2009, a group of for-profit clinics initiated a lawsuit against the government of B.C. seeking to strike down provincial health care legislation. The lawsuit sought to allow private insurance companies to access the health care market in B.C., thereby expanding access to private healthcare. The B.C. Health Coalition and Canadian Doctors for Medicare applied for intervenor status in the case in 2009. In 2010, the B.C. Nurses Union applied to the B.C. Supreme Court for intervenor status. This application was denied (2010 BCSC 927).

Professional Requirements for Lawyers:

 There is a requirement that lawyers in B.C. complete 12 hours of continuing legal education. This requirement was introduced in 2009. Alberta

Name of Presenter: Tracey Bailey

Current Political Environment:

 Elections in Alberta occur every five years. Our last election was March 13, 2008, making the next election probable in 2012. The Alberta Conservative party is currently in power.  Since November 2010, the Conservative government has faced considerable criticism over its management of the Alberta healthcare system. MLA Raj Sherman was removed from the conservative caucus after criticizing his party over the management of emergency room wait times. Raj Sherman has continued to criticize the Conservative government’s management of the health care system.  There is currently a review underway by the Health Quality Council of Alberta over allegations of physician intimidation, emergency room wait times and patient deaths on lung cancer surgical wait lists.

New Cases/Appeals:

Nattrass v. Weber leave to appeal refused (2010), 410 N.R. (note) (S.C.C.): Plaintiff sustained serious ankle fracture after falling off ladder and received surgery from two orthopedic surgeons (W and H). After surgery, H prescribed doses of unfractionated Heparin, a blood thinner. Plaintiff complained about severe pain in legs, and emergency doctor S diagnosed plaintiff with deep vein thrombosis and prescribed Heparin injected directly into vein. Plaintiff was subsequently diagnosed with Heparin Induced Thrombocytopenia with Thrombosis (HITT) from Heparin use and had both legs amputated. Plaintiff brought claim against defendants, including orthopaedic surgeon W, and H and emergency doctor S. Trial judge found negligent conduct causing damage to plaintiff on part of all three. W, H and S appealed. HELD: Appeal allowed. Medical practitioners are not required to know everything about medication being prescribed, but are required to have knowledge of average competent practitioner in same specialty. Trial judge selected incorrect standard of care, and action against W and H was dismissed.

Koerner v. Capital Health Authority, [2010] A.J. No. 910, 2010 ABQB 518: Application by plaintiff for an order for "out of country tests, cancer treatments and surgeries." In the underlying action, the plaintiff sought damages arising from alleged malpractice by the defendant doctors and hospitals. The applicant alleged she had exhausted all available Alberta options, and that since the Province had failed to provide her with proper medical care, the court ought to order someone to pay for out-of-country health services for her. HELD: Application dismissed. The allegations in the notice of motion were not relevant to the original action. The notice of motion did not specify against whom the order was sought. Even if the notice of motion was tangentially relevant to the original action, the plaintiff was seeking payment of damages before her case was proven at trial.

Visconti v. College of Physicians and Surgeons of Alberta, [2010] A.J. No. 954, 2010 ABCA 250: Appeal by Visconti from a decision of the respondent Council of the College of Physicians and Surgeons convicting him of nine instances of professional misconduct relating to failures to properly chart dosages of ventolin given to respiratory patients and from the penalty imposed. Evidence of the appellant's practice to under-medicate patients only came out during the appellant's cross- examination. The appellant was convicted of 31 other counts relating to billing irregularities, and failure to refer patients to respirologists or for x-rays. The penalties imposed included a suspension of 24 months of which three months would be served and the balance held in abeyance pending the appellant's meeting conditions that included a 200 weekly patient cap. He was also ordered to pay hearing costs of $80,465. HELD: Appeal allowed. The matter of penalty in relation to the 31 surviving convictions was remitted to the Council for reconsideration. The Council's finding of professional misconduct for failure to record dosages of ventolin was unreasonable, because the decision to convict was based, in part, on evidence which was irrelevant to the charges laid. The appellant received no express written notice in advance of the hearing that his competence as a practitioner was at issue. The penalty imposed by the Council was unreasonable for the surviving 31 counts. The fashioning of a penalty had to reflect the proper application of principles, including a reflection of what had actually happened. The penalties imposed had to be refashioned to address only the misconduct of which the appellant was convicted, which did not include the size of his standard dose of ventolin. Although the Council did not breach the principles of natural justice and procedural fairness by making a higher costs award than recommended by the Investigative Committee, the order was unreasonable.

Phillip v. Bablitz, [2010] A.J. No 1010, 2010 ABQB 566: Action by Montana Phillip, an infant born on January 24, 1995, for damages for negligence by doctors who treated her. Montana was blind and suffered from severe cognitive impairment. She would require care and assistance for the rest of her life. When she was three days old, she suffered a hypoglycemic crisis caused by the admitted negligence of Bablitz. She was treated at the University of Alberta Hospital. It was not until she was four years old that she was diagnosed with panhypopituitarism, a congenital condition where pituitary hormones were absent or reduced. Montana and her family sued Bablitz and other medical personnel, claiming that their negligence in treating Montana caused her developmental delay. HELD: Action allowed. No adverse inference was drawn from the Phillips' failure to call one of Montana's treating physicians as a witness. Bablitz's negligence caused Montana's hypoglycemic crisis. Montana's hypopituitarism was not diagnosed during the period while she was in hospital because her collapse was reasonably attributed by the doctors there to septic shock. From January 26, 1995 until March 6, 1997, Montana's physicians were blinded to her underlying pituitary defects because of the health crisis brought on by Bablitz's negligence. As of March 6, 1997, an alternate explanation for Montana's deficits ought to have been sought. The failure to seek an explanation broke the chain of causation from Bablitz's negligence.

Malinowski v. Schneider, [2010] A.J. No. 1380, 2010 ABQB 734: Action by plaintiff for damages for medical malpractice. Plaintiff was working as an apprentice electrician when he was injured while pulling very heavy electrical cable. The next day, after spending some time in the on-site medical trailer, he was taken to the defendant Dr. Schneider's chiropractic clinic, where he was examined, diagnosed and treated. He had a second appointment with Schneider the next day, where he showed no signs of improvement, and Schneider treated his again. On March 1, the plaintiff had numbness in his saddle area and could not feel his legs. He was taken to the hospital, where his symptoms progressed. He was diagnosed with cauda equine syndrome, and emergency surgery was performed. He experienced pain and severe impairment to his lower body functions, periodic bladder and bowel incontinence, partial sexual dysfunction and lack of genital sensation, leg weakness, failed back syndrome, constant pain, lower back stiffness and spasms, etc. The plaintiff alleged Schneider was liable for negligence. HELD: Action allowed. The plaintiff was awarded $158,000 in non-pecuniary damages; past and future income losses to be calculated; past loss of housekeeping capacity of $38,130 between June 1, 2002 and Dec. 31, 2006, and $96.54 per month between Jan. 1, 2007 and the trial; future loss of housekeeping capacity; future cost of care costs; and WCB costs of $126,500. The defendant owed a duty of care to the plaintiff. The informed consent form did not, on its own, discharge Schneider's duty to inform. The consequences to the patient of treatment were not disclosed in this case. Furthermore, the plaintiff had limited education and English was not his first language. The symptoms and consequences of CES were a special or unusual risk that ought to have been disclosed to the plaintiff prior to his adjustment, and therefore informed consent was not obtained. In this sense, Schneider did not discharge his obligation to inform his patient, impeding the plaintiff's right to choose an appropriate response to his injury. Had he been told of this alternative, he would have preferred and chosen that response. Schneider did not fulfill his obligations, but promoted his profession and emphasized the possible negative consequences of alternatives. There was a very serious breach of the duty of care by not conducting a thorough re-evaluation on Feb. 27 after the plaintiff showed no improvement, by failing to investigate for injuries that were a known possibility of an incorrect diagnosis and treatment. Schneider caused the plaintiff's CES and resulting injuries. The plaintiff's condition was permanent.

Moll v. College of Alberta Psychologists, [2011] A.J. No. 368, 2011 ABCA 110: Appeal by a chartered psychologist from a decision by a Council of the College of Alberta Psychologists. The appellant specialized in educational psychology. In 2003, she evaluated a child, age 10, at the request of a school principal. Following a series of tests, the appellant prepared a report which concluded that the results indicated the beginning of a major mood disorder and/or a pervasive developmental disorder. In 2005, the Acting Supervisor of Psychological Services at the Calgary Board of Education telephoned the appellant seeking clarification regarding the report. Supervisor filed a complaint against the appellant with the College. A Notice of Hearing alleged that the appellant's conduct constituted professional misconduct and/or unskilled practice of psychology for the failure to deal professionally with the Supervisor and the inappropriate provision of the conclusions in the report. The Discipline Committee concluded that the appellant's conduct toward the Supervisor was unprofessional and issued a letter of reprimand. The Committee accepted and relied on expert evidence in concluding that the appellant's report constituted unskilled practice, as it did not meet the minimal standards of practice for conducting an educational psychological assessment. The appellant's failure to keep up to date in her declared area of competence was a violation of ethical standards. The Committee ordered the appellant to cease independent assessments and ordered the review of all of her reports. In the event that the appellant did not retire by April 2009, she was required to complete certain post-graduate courses approved by the College, at which point the restrictions on her practice would be removed. The appellant submitted that the Council erred in affirming that her conduct constituted unskilled practice and erred in affirming unreasonable sanctions.

HELD: Appeal dismissed. The Committee and Council reasonably found that the appellant engaged in unskilled practice. Their reasons for judgment were sufficient for the purpose of appellate review. There was no failure to consider the difference between error of judgment and unskilled practice. The appellant's conduct went beyond a simple error of judgment, as the tests she employed could not properly be used to opine on brain dysfunction. Her inappropriate opinions were pervasive, were repeated in the context of several tests, and were deliberately couched in authoritative and assertive terms. Bruce Estate v. Toderovich, [2010] A.J. No. 1324, 2010 ABQB 709: Application by Hazel Bruce, executor of the Bruce Estate, for certification of the action as a class proceeding and appointment as representative of the class. The defendants were a regional health authority and a hospital. The plaintiffs claimed that the regional health authority was negligent in the maintenance and operation of the hospital and in the treatment of patients, putting them at risk of exposure to infectious diseases. Some 53 patients and two of their spouses tested positive for Methicillin-Resistant Staphylococcus aureus. The proposed class included patients at the hospital during a specified period that tested positive for MRSA and patients who contracted other infectious diseases after being treated in the Central Sterilization Room.

HELD: Application allowed in part. Only the CSR infected patients fulfilled the requirements for certification. The proposed class had a potential cause of action in negligence and contract. There were common issues for the infected members of each group. There was some basis in fact to find that the CSR group was of sufficient potential magnitude to render class proceedings appropriate to achieve judicial economy, promote access to justice and behaviour modification, avoid inconsistent results and increase the likelihood of reaching a fair and equitable result. Determining the number of potential MRSA infected patients was complicated by a limitations issue that had the clear potential to reduce the MRSA group to below the two or more persons required for certification.

New/Impending Legislation:

 Alberta Health Act, S.A. 2010, c. A-19.5 (assented to 2 December 2010; awaiting proclamation).  Crown’s Right of Recovery Act, S.A. 2009, c. C-35 (assented to 26 November 2009; awaiting proclamation).  Drug Program Act, S.A. 2009, c. D-17.5 (assented to 4 June 2009; awaiting proclamation).  Protection of Children Abusing Drugs Amendment Act, 2009, S.A. 2009, c. 12 (assented to 26 May 2009; awaiting proclamation).

New Policy Directions:

 The Alberta Health Act, S.A. 2010, c. A-19.5 allows for the creation of a “Health Charter.” No Charter is presently in force.  Alberta’s Electronic Health Record Regulation, Alta. Reg. 118/2010 became effective in September 1, 2010.  New Health Information Act Guidelines and Practices Manual (March 2011).  New Emergency Room wait time guidelines released following controversy over wait times.  New Rules governing health care staff reporting under the Gunshot and Stab Wound Mandatory Disclosure Act. Saskatchewan

Name of Presenter: Tracey Bailey

Current Political Environment:

 Saskatchewan is currently governed by the Saskatchewan Party (38/58) with the Saskatchewan New Democrat Party in opposition (20/58).  Most opinion polls suggest that these results will remain consistent in the upcoming November 2011 election.

New Cases/Appeals:

Prevost v. Ali, [2011] S.J. No. 247, 2011 SKCA 50:

Appeal by Prevost from the dismissal of his action against Dr Ali and Dr Das, alleging medical negligence in the performance of carpal tunnel wrist surgery on his right hand. Prevost had problems with both hands and was scheduled for carpal tunnel surgery on his left hand in February 2007. By November 2006, his right hand was equally bad. His wife visited a medical clinic where Ali suggested that his colleague Das could perform carpal tunnel surgery on Prevost the next day in the clinic's surgical suite. Das had performed two to three carpal tunnel surgeries since 1977. He and Ali had opened their surgical suite three months before they operated on Prevost. The suite had not been approved by the College of Physicians and Surgeons. Prior to undergoing surgery, Prevost consulted friends and did internet research into the inherent risks. He knew the risk of nerve damage existed, although the doctors had not advised him of same. The surgery took Das, assisted by Ali, 45 minutes to complete, three times longer than normal. Prevost returned to the clinic and indicated he was pleased with the result. He again returned on December 8 for the removal of sutures. Ali advised him to return soon for physiotherapy. Prevost never did. He filed a statement of claim against Das and Ali in January 2007. He had his second surgery, performed by a noted expert, in February 2007. This surgery took 10 minutes, there were no complications, and Prevost's left wrist was completely recovered within eight weeks. Prevost claimed his right wrist continued to pose problems. He complained to the expert surgeon and a neurologist, who suggested medication and physiotherapy. Prevost did not take this advice. The judge dismissed the claim against Ali outright. He found Das performed the surgery under less than ideal conditions and could have better communicated with Prevost, but concluded that the surgery was performed adequately and that Das met the standard of care. He found Das' failure to discuss the inherent risks of no consequence given Prevost's clear knowledge of the risks. He found Das had no duty to draw to Prevost's attention his lack of certification as an expert and his clinic's lack of College approval, given that these facts had no bearing on the risks associated with the procedure. The judge preferred evidence provided by an expert for the defence over that provided by Prevost's expert with respect to whether or not Das' incision site for the surgery was appropriate. HELD: Appeal dismissed. Given that Prevost proceeded with a second surgery months after the first, while the problems with his right wrist persisted, it was clear he would have had the first surgery regardless of the risks. He knew the options available. Das had no duty to disclose his lack of privileges. There was no evidence Prevost reviewed Das' qualifications and experience as material information which would have affected his decision to allow Das to perform his surgery. The judge was entitled to rely on the defence expert in finding the incision site used by Das was reasonable, where Prevost's expert himself acknowledged a reasonable physician could have made the same choice.

Desjarlais v. Regina Qu’Appelle Regional Health Authority, [2009] S.J. No. 257, 2009 SKCA 55:

Appeal by the plaintiff from trial judgment dismissing her action for damages suffered when she fell while a patient at the respondent hospital. The jury found that the respondent had failed to meet the applicable standard of care by not locking the wheels on the appellant's hospital bed but concluded that the fall did not cause or contribute to the appellant's injuries. The appellant argued that defence counsel on the closing submissions went beyond referring to, and commenting on, the evidence. In her view, defence counsel presented new evidence to the jury and otherwise improperly influenced its deliberations through use of a power point presentation. The appellant did not object to the respondent's closing address or to the power point presentation that accompanied defence counsel's submissions. HELD: Appeal dismissed. Counsel was entitled to invite the jurors to draw common sense inferences about what happened during the fall to cause the bed to move as it did and to invite them to consider how the appellant might have fallen. The trial judge made specific reference to the submissions of defence counsel concerning how the appellant's fall might have occurred. He clearly reminded the jurors that counsel's submissions were not evidence and that they were entitled to draw whatever inferences they wished from the facts as they found them. In these circumstances, the comments of defence counsel did not improperly affect the deliberations of the jury. The icons used in the power point presentation were no more than a shorthand reinforcement of the points being made by counsel and would not have improperly influenced the jury. The appellant's objections to some of the power point slides were unfounded.

Scharnagl (Litigation Guardian of) v. Stimpson, [2009] S.J. No. 791, 2009 SKQB 474: Action by Scharnagl against Stimpson and Sunrise, on behalf of Kamsack Hospital nurses, for medical negligence. Scharnagl was born at Saskatchewan's Kamsack Hospital on December 13, 1995. He was born in acute respiratory distress and his brain was damaged due to severe oxygen deprivation before, during and after his birth. As a result, Scharnagl was quadriplegic and spastic. There was no neonatal intensive care department at Kamsack Hospital, which was a community hospital. Scharnagl's mother was transported to Kamsack Hospital rather than a larger hospital further away as the birth was imminent and there were blizzard conditions. Also due to the blizzard conditions, Scharnagl was not transferred to a larger hospital until the following day. Scharnagl's mother, on his behalf, took the position that the neonatal care that Scharnagl received from the attending doctor, Stimpson, and the nurses was inadequate and that their negligent acts caused or significantly contributed to Scharnagl's brain damage. More specifically, Scharnagl's mother submitted that Stimpson was negligent in failing to strictly adhere to relevant guidelines and by retiring for the night without consulting a specialist such as a neonatologist. Scharnagl's mother further submitted that Stimpson's decision to remove the breathing tube when the infant was still not breathing satisfactorily on his own was negligent. Stimpson took the position that he did everything appropriate prior to retiring for the night and it was only the next morning that it became apparent that Scharnagl's condition was deteriorating. Stimpson submitted that he removed the tube because there was a risk that it would cause internal damage because Scharnagl was fighting the tube. HELD: Action dismissed. While strict adherence to relevant guidelines would have required endotracheal suctioning, Stimpson was not negligent by failing to perform endotracheal suctioning as he did not observe any meconium in or around Scharnagl's mouth or on any part of Scharnagl's upper body. In the circumstances, it was reasonable for Stimpson to determine that Scharnagl's most immediate need was oxygenation rather than a search for meconium in Scharnagl's trachea below the larynx. Furthermore, the Court could not conclude that meconium aspiration caused or contributed to Scharnagl's brain damage. Stimpson was also not negligent in failing to consult a specialist prior to 8:30 in the morning as adverse changes were not observed until that time. In addition, Stimpson was not negligent in removing the breathing tube as an airway had been established by that time. Finally, no negligence on the part of the nurses could be identified.

New v. Saskatcheawn (Minister of Health), [2010] S.J. No. 155, 2010 SKQB 111:

Appeal by a chiropractor from the Committee's order to reduce his billings by $62,252. The Committee became concerned with the appellant's billings between September 2004 and September 2005 because of the total number of patients and services being provided. The appellant was seeing up to 100 patients per day and spending less than five minutes with each patient. The Committee demanded 25 randomly chosen files for review and allowed the appellant the opportunity to respond to its concerns. The Committee ordered a 7.5 per cent reduction for inadequate documentation, a 10 per cent reduction for over servicing and a 15 per cent reduction for non-compliance with the Saskatchewan Health Payment Schedule. These reductions resulted in the appellant owing a statutory debt to the Minster. The appellant argued that the Committee's findings were defective. HELD: Appeal dismissed. The Committee was entitled to deference as it had professional expertise and experience that it used in reaching its conclusions. The Committee's finding that the appellant did not satisfactorily meet record keeping requirements was reasonable on the evidence. In finding that the appellant had engaged in over servicing, the Committee reviewed statistical evidence and listened to the appellant's explanations but found that the appellant's practice of seeing patients a minimum of 12 times before reassessing their response to care constituted over servicing. The Committee's finding that this was an unacceptable departure from the norm was reasonable.

Young v. Regina District Health Board, [2010] S.J. No. 739, 2010 SKQB 242:

Action against the defendant doctor for damages for injuries sustained during an operation in April of 2000. The defendant conducted a laparoscopy and a laparascopic removal of right paraovarian huge simple cyst. The plaintiff alleged the defendant exceeded the consent she had provided by also performing a cysto right retrograde and right ureteroureterostomy. The plaintiff's ureter was damaged during the surgery performed by the defendant (the defendant's surgery), causing the loss of her kidney. The plaintiff underwent four additional surgeries after the defendant's surgery. For 31 months the plaintiff had constant and extremely painful bladder and kidney spasms, was unable to stand or sit because it was too painful and carried a stent which had to be replaced 14 times, in a procedure which she found to be painful and uncomfortable. The plaintiff experienced numerous and painful migraines prior to the surgery, but these increased to a level of pain she could hardly imagine with each stent change. Nine and one-half years post surgery the plaintiff had to wear a belt because of ongoing abdominal issues, flowing from the subsequent surgeries, and she experienced daily pain which she attributed to the defendant's surgery. The plaintiff did not enjoy good health prior to April 2000 suffering from, amongst other things, chronic fatigue syndrome, fibromyalgia, multiple chemical sensitivity and migraines. The plaintiff had not worked at her occupation as an accountant since September 1994. HELD: Action allowed. The plaintiff was awarded $175,000 in non-pecuniary damages, $32,848 in cost of care expenses, $132,249 for personal assistance, $273,874 for cost of future care and personal assistance and $68,468 for the effect of taxation on the award for cost of future care and personal assistance. The plaintiff only having one kidney was a permanent and serious consequence of the defendant's surgery. The crumbling skull rule applied, as the plaintiff had a number of pre-existing conditions.

Shamsuzzaman v. College of Physicians and Surgeons of Saskatchewan, [2011] S.J. No. 213, 2011 SKCA 41:

Appeal by the College of Physicians and Surgeons from a decision quashing a decision of the disciplinary committee in which the physician was found guilty of conduct unbecoming. The complainant consulted the physician because she was experiencing a side-effect from a cough medication that she had been prescribed by another doctor. The complainant alleged that while examining her respiratory function, the physician touched her breasts. After her visit, she complained to the College that the physician had touched her inappropriately, and the physician was charged with unbecoming, improper, unprofessional or discreditable conduct. At the hearing, the physician indicated he had no recollection of the complainant and alleged that he would not have performed the examination in the manner she described. The committee, however, concluded that the complainant was credible and it found the physician guilty of conduct unbecoming. The physician appealed the Committee's finding of conduct unbecoming and the penalty imposed to the Court of Queen's Bench. In overturning the committee's decision, the judge interpreted the applicable bylaw as providing that a physician could only be found guilty of conduct unbecoming if the medical examination was unnecessary or if the physician derived sexual gratification from the incident. He concluded that because the physician had not derived sexual gratification from the touching and the examination was necessary, the doctor was not guilty of unbecoming conduct. The College appealed the judge's decision on the basis that he applied the incorrect standard of review in interpreting the bylaws, misinterpreted the committee's decision and the bylaw, and overlooked the multiple bases on which the committee's decision could stand. HELD: Appeal allowed. The judge erred by applying a standard of review of correctness to the interpretation of the applicable bylaw. The appropriate standard of review was reasonableness and the committee's interpretation of the bylaw was reasonable. However, as the committee's reasons with respect to the issue of credibility were wholly inadequate and did not permit appellate review, the only appropriate remedy was a re-hearing.

New/Impending Legislation:

 Tobacco Control Act Amendment Act, S.S. 2010, c. 34.  Health Information Protection Regulation, S.S. 2010, c. H-0.021 REG 1.  Respiratory Therapists Act, S.S. 2009, c. R-22.0002. New Policy Directions:

 Effective March 4th, 2011 Saskatchewan pharmacists will have the authority to prescribe limited types of medications.  On December 21st, 2010, Health Minister Don McMorris announced the creation of eHealth Saskatchewan, a crown corporation that will oversee the completion and compilation of the provincial electronic health record system.  As of October 1st, 2010, new tobacco control regulations have taken effect, prohibiting smoking in vehicles containing children under the age of 16, enclosed common multi-unit dwellings, and near doorways, windows and air intakes of public buildings. Manitoba

Name of Presenter: Tracey Bailey

New/Impending Legislation:

 The Regulated Health Professions Act, S.M. 2009, c. 15.  The Social Work Profession Act, S.M. 2009, c. 31.  Food Safety Act, S.M. 2009, c. 8. Ontario

Name of Presenter: Neil M. Abramson

Current Political Environment:

 A provincial general election is scheduled for October 6, 2011.

New Cases/Appeals:

Lipsitz v. Ontario, [2009] O.J. No. 4353 (Sup. Ct.), leave to appeal denied [2010] O.J. No. 2914 (Div. Ct.), argued at Court of Appeal for Ontario on March 28, 2011 (awaiting decision).

Leering v. College of Chiropractors of Ontario, [2010] O.J. No. 406 (C.A.)

Rosenhek v. Windsor Regional Hospital, [2010] O.J. No. 2893 (Sup. Ct.)

College of Veterinarians of Ontario v. Hanif, [2011] O.J. No. 890 (Div. Ct.)

New/Impending Legislation:

 Excellent Care for All Act (ECFAA)  Broader Public Sector Accountability Act (BPSAA)  Amendments to Freedom of Information and Protection of Privacy Act (FIPPA)  Amendments to Regulation 965 under the Public Hospital Act

(New) Professional Requirements for Lawyers:

 New Requirements as of 2011: 12 hours of accredited Continuing Professional Development (“CPD”). Federal Government (Department of Justice, Health Legal Services)

Name of Presenter: Glenn Rivard

Current Political Environment:

 Election on May 2, 2011

New Cases/Appeals:

Assisted Human Reproduction Act Reference (2010 SCC 61)

Attorney General of Canada v. PHS Community Services Society, et al, and Attorney General of British Columbia (SCC)

New/Impending Legislation:

 Consumer Product Safety Act  Tobacco Products Labelling Regulations Québec

Name of Presenter: Me Mylène Beaupré

Current Political Environment:

The province of Quebec is governed by the Quebec Liberal Party, led by Prime Minister Jean Charest, whose party has been in power since 2003. On May 2nd 2011, the federal social democrat and sovereignist party, Le Bloc Québécois, underwent a huge loss, having elected only four (4) members of Parliament when it had elected forty-seven (47) at the last election and losing its status as official party at the House of Commons. Its leader, Gilles Duceppe, was not even re-elected in his own county which led him to resign. The National Democratic Party (NDP) elected fifty-eight (58) of its one hundred and two (102) members of Parliament in Quebec which speaks of the orange wave that shook the province on the night of the election. Indeed, though Stephen Harper’s conservatives became a majority government with one hundred and sixty-seven (167) seats, only five (5) of them were elected in Quebec.

Significant New Cases Having Direct And/Or Indirect Impact On Quebec Health Law:

Supreme Court of Canada

2010: - De Montigny c. Brossard, 2010 CSC 51 (10 novembre 2010)

Quebec Court of Appeal

2010: - Morel c. Tremblay, 2010 QCCA 600 (26 mars 2010) – CanLii - Rosemère (Ville de) c. Lebel, 2010 QCCA 1501 (19 août 2010) – CanLii - Maison Simons inc. c. Lizotte, 2010 (QCCA 2126 (22 novembre 2010) - CanLii

2011: - Labelle c. Agence de développement de réseaux locaux de services de santé et de services sociaux – région de Montréal, 2011 QCCA 334 (21 février 2011) – CanLii - Hôpital Maisonneuve Rosemont c. Tawil, 2011 QCCA 371 (25 février 2011) – Can Lii - Pierre-Éric Landry c. Alain Audet, 2011 QCCA 535 (21 mars 2011) – Can Lii - Collectif de défense des droits de la Montérégie (C.D.D.M) et Lise Brouard et D.L. c. Centre hospitalier régional du Suroît du centre de santé et des services sociaux du Suroît et André Monette et Normand Kingsley, 3 mai 2011, Cour d’appel de Montréal

Quebec Superior Court:

2010: - Boucher c. Simard, 2010 QCCS 3247 (15 juillet 2010) - CanLii

Quebec Court (civil division):

2011: - Thivierge c. Gouriou, 2011 QCCQ 340 (31 janvier 2011) – Can Lii

New/Impending Legislation: (my many thanks to Elisabeth Brousseau stagiaire and Me Simon Beauchesne-Paquette, from McCarthy, Tétrault in Montreal, for their invaluable contribution to this section):

New legislation:

2010: Le 5 août 2010 la Loi sur les activités cliniques et de recherche en matière de procréation assistée L.R.Q., chapitre A-5.01 et deux règlements encadrant ces services entrent en vigueur permettant que tous les frais relatifs aux activités médicales et aux médicaments liés à l'insémination artificielle et à trois cycles de fécondation in vitro soient assumés par le régime public, couvrant plus spécifiquement les services de prélèvements d'ovules ou de tissus ovariens; la fécondation in vitro; le diagnostic génétique préimplantatoire; le transfert d'un embryon frais ou congelé; et le prélèvement de sperme au moyen d'une intervention médicale.

2011: En vigueur depuis le 1er mai 2011 (mais recevant les données depuis le 1er avril 2011), l’article 431 paragraphe 6.2 de la Loi sur la santé les les services sociaux, L.R.Q., c. S-4.2 institue un registre national des incidents et accidents survenus lors de la prestation des soins de santé et de services sociaux.

Impending legislation:

En décembre 2010, l'Assemblée nationale adopte le projet de loi nº 125 intitulé Loi facilitant le don d'organes et de tissus qui vise à encadrer la mise en œuvre de mesures administratives et à créer un registre des dons d’organes et de tissus.

Le projet de Loi 127 intitulé Loi visant à améliorer la gestion du réseau de la santé et des services sociaux, présenté par le Ministre de la santé Yves Bolduc, est actuellement sous étude, en commission parlementaire. Il vise à mettre en place des nouvelles règles de gestion au sein des organisations œuvrant en santé, notamment sur les méthodes de gestion par les conseils d’administration, ainsi que sur leur composition. L’impact de cette future loi sera principalement administratif, quoiqu’elle vise également une plus grande transparence ainsi qu’une participation plus marquée de membres du public dans la gestion des établissements de santé.

Des amendements à la Loi sur le tabac, L.R.Q., chap. T-0.01, sont attendus au Québec. Le gouvernement provincial voudrait élargir la portée de cette loi, en allant plus loin que la simple interdiction de fumer dans les bars et les restaurants. Les objectifs visés sont de lutter contre le tabac de contrebande et probablement aussi de cibler certains nouveaux lieux où le tabac serait interdit, comme dans les voitures en présence d’enfants.

New Policy Directions (my many thanks to Elisabeth Brousseau stagiaire and Me Simon Beauchesne-Paquette, from McCarthy, Tétrault in Montreal, for their invaluable contribution to this section):

Le Registre québécois du cancer, progressivement constitué depuis le 1er avril 2011, documente tous les cas de cancer survenant dans la population québécoise et consolidant l'information disponible sur la nature de la tumeur, sur le stade de la maladie et sur les traitements. D'ici décembre 2012, le Registre s'enrichira de données supplémentaires sur les quatre principaux types de cancer: le cancer colorectal, du sein, du poumon et de la prostate. Jusqu'à 150 variables différentes pourront être consignées de façon centralisée, à partir des registres locaux d'environ 70 établissements de santé. La Régie de l'assurance maladie du Québec collabore à l'implantation du Registre avec les équipes du ministère de la Santé et des Services sociaux.

Private Health Care Developments/Trends/Legislation (my many thanks to Elisabeth Brousseau stagiaire and Me Simon Beauchesne-Paquette, from McCarthy, Tétrault in Montreal, for their invaluable contribution to this section):

Le 1er janvier 2008, le projet de Loi 33 intitulé Loi modifiant la Loi sur les services de santé et les services sociaux et d’autres dispositions législatives, présenté par l’ex- Ministre de la santé Philippe Couillard, entre en vigueur par décret1. Il permet de dupliquer la couverture publique des soins de santé avec des assurances privées pour certaines opérations (hanches, genoux, cataractes). Il permet également à des centres de soins de santé de conclure, après approbation du Ministre, des ententes avec des institutions privées.

1 Voir le décret 900-2007, le 17 octobre 2007, publié à la Gazette officielle. En février 2008, le rapport intitulé: « En avoir pour son argent », par le groupe de travail sur le financement de la santé (le rapport Castonguay) est publié, prônant la fin de la gratuité en santé et proposant différentes mesures ouvrant la porte à une certaine forme de privatisation des services. Les principales sections de ce rapport sont les suivantes : (1) vision d’un nouveau contrat social; (2) forces et faiblesses du système au Québec; (3) cadre de référence pour fixer des limites; (4) propositions pour améliorer le système, y inclus le secteur privé; (5) gouvernance, allocation des ressources et organisation du travail ; et (6) sources de revenus. Radio-Canada regroupait les principales mesures suggérées comme suit: (1) décloisonner la pratique des médecins; (2) créer un fonds de stabilisation; (3) faire plus de place aux assureurs privés; et (4) imposer une cotisation annuelle payable par chaque utilisation à son médecin de famille (sauf pour les plus démunis).

Faisant suite au rapport Castinguay, par l’adoption du projet de loi 100, le gouvernement du Québec visait à faire modifier la Loi sur la Régie de l’assurance maladie2 en mettant sur pied un fonds de financement des établissements de santé et des services sociaux, ainsi que ce qu’on a appelé dans les médias le «ticket modérateur». Ces frais d’utilisateur-payeur auraient été de 25$, à 100$, puis à 200$ d’année en année et auraient été payables pour chaque consultation médicale à même le rapport d’impôt du contribuable. Plusieurs ont contesté la mesure, déclarant qu’elle était contraire à la Loi canadienne sur la santé3 qui prohibe l’imposition de frais modérateurs. Plusieurs organisations contre la privatisation de la santé au Québec ont pris position contre cette mesure. En septembre 2010, le gouvernement Charest abandonne le projet et motivant ce changement de cap par l’évocation d’une phrase du président de la Fédération des médecins specialists du Québec, Gaétan Barrette: «Le partage des risqué et des coûts justifie le ticket modérateur sur le plan théorique, mais la culture québécoise l’interdit.»

PROFESSIONAL REQUIREMENTS FOR LAWYERS:

Within a two year period it is required that lawyers follow a minimum of thirty (30) hours of professional training which is self declared but formally tracked by the Quebec Bar.

2 L.R.Q. c. R-5. 3 LRC 1985, c C-6. New Brunswick

Name of Presenter: L. Martina Munden, Ms. Munden would like to thank Scott Brittain for preparation of the summary for New Brunswick.

New/Impending Legislation:

Personal Health Information Privacy and Access Act, S.N.B. 2009, c. P-7.05 (“PHIPAA”)

This act was assented to on June 19, 2009, and was proclaimed into force on September 1, 2010. The purposes of PHIPAA are to provide individuals with the right to examine, receive, correct, or amend their personal health information maintained by custodians. It also has the purpose of establishing a set of rules for custodians regarding the collection, use, disclosure, and destruction of personal health information, in a way that protects the confidentiality of the individual’s to whom the information relates. The effective provision of care, a system for independent review and resolution of complaints, and the provision of effective remedies for contravention are also identified purposes of PHIPAA; s. 2.

1. A “custodian” is an individual or organization that collects, maintains or uses personal health information for the purpose of providing or assisting in the provision of health care, treatment, or the planning or managing of the health care system, and includes examples like:

(a) Ambulance New Brunswick Inc.;

(b) Workplace Health, Safety and Compensation Commission;

(c) Canadian Blood Services;

(d) Laboratories and nursing homes; and

(e) Other health professionals such as physicians, dentists, and pharmacists; s. 1 of PHIPAA.

2. The definition of a “record” is very broad and includes almost all forms of electronic, graphic, or mechanical recording, but specifically excludes the software or any other mechanism that produces the records; s. 1.

3. PHIPAA applies not only to information held, collected or used by a custodian, but also to personal health information that was collected before its coming into force; s. 3(1).

4. PHIPAA does not apply to anonymous or statistical information that does not, or cannot when combined with other information, identify an individual, to records created over a hundred years ago, to records that identify an individual who died fifty years ago, to records collected or created by non-health care organizations such as employers or insurers, or any record or judgment of a court; s. 3(2).

5. No restriction is placed on information that is otherwise available by law to a party to legal proceedings, or the power of a court to compel testimony or the production of documents, or the activities of a body responsible for the discipline of health care providers; s. 3(3).

6. The Right to Information and Protection of Privacy Act no longer applies to personal health information, and any request concerning personal health information made under PHIPAA, which also covers non-health related information, will be deemed to be a request properly made under the Right to Information and Protection of Privacy Act; s. 6.

7. An individual has the right on request to examine or receive a copy of their personal health information maintained by a custodian. The custodian may require a written request; s. 7. Where a request is not sufficiently detailed to allow the custodian to find the information, the custodian must assist the individual to reformulate the request; s. 8. Where an individual’s information is not available in that individual’s official language of choice, the custodian must provide a health care provider to interpret the record, or cause the record to be translated; s. 9.

8. A custodian shall not permit personal health information to be examined or copied without being satisfied of the identity of the individual making the request, and must take reasonable steps to ensure that the information is only received by the individual it is intended for; s. 12. A custodian shall permit an individual to examine a record free of charge, but may require a fair and reasonable fee for search, preparation, copying and delivery systems; s. 13.

9. An individual may request a correction to their personal health information; s. 15.

10. The express consent of an individual is required in relation to the collection, use or disclosure of their personal health information. The consent must be in writing, from an individual who knows the purpose for the collection, use or disclosure; s. 19. Unless it is not reasonable in the circumstances, a custodian is entitled to assume that they have the individual’s consent to collect, use, or disclose personal health information to another custodian or person for the purpose of providing health care to that individual; s. 18. Consent is also not required for any disclosure required by law or by established standards of professional practice.

11. A custodian shall not collect, unless required by law, personal health information if other information will serve the same purposes or more personal health information than is reasonably necessary to meet the purpose of the collection; s. 29.

12. A custodian may collect personal information that has been de-identified, for any purpose; s. 30. “De-identified” in relation to personal information means personal health information from which all identifying information has been removed; s. 1.

13. A custodian shall inform an individual of the purpose for which the information is being collected either before, or as soon as practicable after the collection; s. 31.

14. A custodian that is a health care facility may disclose personal health information to a person that the facility reasonably believes is a member of the individual’s immediate family, if the facility offers the individual the opportunity to object to such disclosure and any disclosure is made in accordance with accepted professional practice; s. 37(4). A custodian may disclose personal health information without consent of the individual to prevent serious harm to the individual or a group of people; s. 39(1)

15. No person, other than a custodian may require the production of an individual’s Medicare number, and an individual may refuse to provide same to a person not so authorized; s. 48(1).

16. A custodian shall establish information practices to facilitate the implementation of, and compliance with PHIPAA. They must also designate a person to assist in ensuring compliance, to respond to inquiries, and to receive complaints; s. 49. The custodian shall protect personal health information by adopting reasonable safeguards that ensure confidentiality, security and accuracy; s. 50.

17. A custodian does not cease to be a custodian until complete custody and control of personal health information passes to another person who is legally authorized to hold the record; s. 54(1).

18. The Commissioner under PHIPAA has all the powers and privileges and immunities of a commissioner under the Inquiries Act, for the purpose of conducting an investigation; s. 61.

19. A custodian’s decision may be reviewed by the Court of Queen’s Bench; s. 66(1). No appeal lies from the decision of this court; s. 67(3).

20. A custodian commits an offence if they collect, use, sell, disclose, or fail to protect personal health information contrary to the requirements of PHIPAA; s. 76(3). A person who violates or fails to comply with s. 76 commits an offence punishable under Part II of the Provincial Offences Procedure Act, as a category F offence.

Health Care Directive Legislation 1. Currently, New Brunswick has no legislation concerning health care directives. The Standing Committee on Law Amendments prepared a discussion paper on this topic in September 2008. This paper will be summarized under this part.

2. The described purpose of such legislation reflects the fact that New Brunswick law has not yet defined “personal care”, generally seen in the contexts of powers of attorneys and the Infirm Persons Act. It is unclear whether “personal care” will include medical treatments, or is more limited. This may cause a person who loses competence delays in their treatment and care, while such unclear issues are answered in court.

3. It is proposed that a health care directive under New Brunswick’s legislation will deal with decisions such as providing/withdrawing consent for care, treatments, or medications, concerning an individual’s physical health, mental health, or personal care. The legislation would enable individuals to create written health care directives, or to assign a proxy to make health care decisions on their behalf. The legislation would also include a default list of persons to act as proxy, similar to the Devolution of Estates Act. 4. New Brunswick’s legislation would allow competent individuals, 16 or older, or “mature minors” as defined by the Medical Consent of Minors Act, to make health care directives. An individual’s competence would be assessed by both health professionals and the court. Competence would mean that an individual understands the relevant information to health care decisions, understands the reasonably foreseeable consequences of their decisions, and can communicate their decision.

5. A health care directive under New Brunswick legislation would require directives to be written, witnessed, dated and signed. Unless expressly authorized, a proxy would not be allowed to make decisions relating to medical treatments for the purpose of research, sterilization that is not medically necessary, the removal of living tissue for education, transplantation, or research, and other issues described in regulation.

6. New Brunswick would recognize a health care directive made in another jurisdiction if it met the requirements of the NB Act, or met the requirements of the legislation in the jurisdiction in which it was made.

7. A health care directive would be revocable by a competent individual by the making of a new directive, a written revocation of the directive, or the destruction of all original signed copies of the directive. A directive would also have no further effect if the individual regains competency, dies, or a court determines the directive should have no further effect.

8. Under New Brunswick legislation, a person would be eligible to be a proxy if they are 19 or over and deemed competent to make health care decisions. A proxy would be obliged to follow any written directives, except if the individual later expresses a contrary wish to the proxy, technological changes make the instructions inappropriate, circumstances exist that makes the instructions inappropriate, or the instructions in the directive are contrary to legislation.

9. A proxy’s authority would cease to exist when they resign, die, or lack capacity, when the individual revokes the proxy’s authority, when a court so determines, or if the proxy is a spouse, when the marriage ends.

10. Where an individual becomes incompetent and has no health care directive, or power of attorney for personal care, the New Brunswick legislation would provide that a proxy may be the individual’s spouse, children, parents, siblings, another relative, the health care provider responsible for the proposed care, or as a last resort, the public trustee.

11. Examples of some of the general provisions that would be included in the New Brunswick legislation would be that the agreement of a person to act as a proxy would not affect their entitlement to bequests, dispositions of property, or proceeds of insurance, that the Mental Health Act would prevail over the health care directives legislation where they come into direct conflict, and that the provisions of the new legislation would apply to a power of attorney for personal care under the Infirm Persons Act.

Midwifery Act, S.N.B. 2008, c. M-11.5 1. This Act was assented to on June 18, 2008 and was proclaimed into force on September 15, 2010. 2. The practice of midwifery under this Act means the care and monitoring of women during normal pregnancy, labour and the postpartum period; s. 2(1). A midwife may prescribe drugs, order and interpret diagnostic tests, and provide other health care services, all in accordance with the regulations; s. 2(2).

3. The Act establishes a body corporate know as the Midwifery Council of New Brunswick; s. 4. The objects of the council are to regulate the practice, and establish and maintain standards of practice as well as professional ethics; s. 10.

4. The Registrar appointed by the Council shall keep a register which has the name and address of every person entitled to engage in the practice of midwifery in the Province, and of every person who has completed a midwifery education program; s. 20. A person not named in the register shall not practice midwifery or hold themselves out as a midwife; s. 26. The register shall be open to inspection by any person free of charge, but such inspection may be refused where there is reasonable cause to believe that the applicant seeks the access merely for commercial purposes; s. 92.

5. All midwives are required to prove valid professional liability insurance; s. 31(1).

6. Nothing in the Act prevents any person from giving aide in case of urgent need; s. 35. Nor does it prevent the practices of physicians, pharmacists, nurses, or paramedics; s. 36.

7. No person shall communicate or allow to be communicated any information obtained by them in the course of administering the Act, nor will they allow anyone to inspect or have access to documents, records, or files obtained by them in the course of administering the Act; s. 95(1). Nova Scotia

Name of Presenter: L. Martina Munden, Ms. Munden would like to thank Alison Morgan, Law Student with Patterson Law for assistance with the preparation of the summary for Nova Scotia.

Current Political Environment:

NDP provincial government, elected in 2009.

New Cases/Appeals:

Nova Scotia (Health) v. J.K.D., 2010 NSCA 25 (CanLII) Summary: An Appeal from a judgement where the Minister of Health was ordered to pay the transportation costs for a gentleman in Adult Protection so that his wife could visit him one additional time per week and that certain dental costs for him would also be covered. She found that he was an adult in need of protection because he was “not receiving adequate care and attention”. Interpretation of Section 3(b) (ii) of the Adult Protection Act. Issue: Did The Judge err in finding the gentleman to be an adult in need of protection on the basis that he was not receiving adequate care and attention? Result: Yes, the trial judge did err in law. It could not have been the legislature’s intention, given the intrusive measure given to the State under the Act, that the State could continue to intervene in a life of an adult who is safely placed and receiving excellent care, simply because he does not see his spouse more than once a week.

Coates v. Capital District Health Authority, [2010] N.S.G. No. 203 Summary: An appeal pursuant to Section 41 of the Freedom of Information and Protection of Privacy Act regarding information and documents provided to her by the Capital District Health Authority in connection with her disclosure application in the act. The appellant was a casual registered nurse with the Health Authority and was discharged. She wanted disclosure to determine appropriate proceedings to take against the Authority in regards to her termination. The Authority had provided her with partial access to the requested documentation, however had redacted portions of that documentation on the basis that they did not need to be disclosed based on exemptions provided for under the Act. These exemptions were in relation to client privileged materials and for third party personal information. The Authority had also retained other parts of the documentation on the basis that they were unrelated to the disclosure application. An application of the Freedom of Information and Protection of Privacy Act. Issue: Whether or not the Health Authority had appropriately disclosed all of the information necessary. Result: The court agreed with the Authority that the materials were filled with highly personal information about both the appellant and the involved third parties. The court applied prior case law to determine that the redactions made by the Authority were reasonable and complied with the Act. The Health Authority was appropriate in providing the documents it gave to the appellant.

Awan v. Cumberland Health Authority, [2009] N.S.G. No. 472 Summary: A motion for prejudgement interest in relation to a settlement regarding a termination of a contract. The plaintiff had been previously employed by the Cumberland Health Authority as an anaesthesiologist; however the Cumberland Health Authority terminated that agreement in 2002. The parties later settled on the sum $475,000.00 plus prejudgement interest and cost payable at the time of the acceptance of this offer. Issue: Whether or not prejudgement interest should be calculated as per the 1972 Civil Procedure Rules or the 2009 Civil Procedure Rules. Results: The court found that, considering all the facts of the case including the period during which prejudgement interest was calculated was under the 1972 Civil Procedure Rules (except for three months and seven days), those rules should be used in calculating prejudgement interest. The prejudgement interest was eventually ordered at the rate of 3.205% per annum for the period of November 1, 2002, the date which the contract was terminated, to April 7, 2009, the date of acceptance of settlement.

McIntyre v Cape Breton District Health Authority, 2011 NSCA 3 Summary: The appellant, an oral surgeon, formerly practiced from leased premises in a hospital owned and operated by the respondent. Hospital renovations were done, including near his premises. The appellant claimed that he was disabled by heavy metals released from materials demolished during the renovations and, as a result of toxicity, was forced to stop working in April 2003 and has been unable to work in his profession since. The trial judge found that the respondent owed the appellant a duty of care and had breached its statutory duty to conduct an assessment of the materials to be demolished and by not taking adequate precautions. However, he concluded that the appellant had not proven that heavy metals were released by the renovations or that they caused his medical condition.

Langille v Dzierzanowski, 2010 NSSC 379 Summary: A motion that is collateral to a medical malpractice proceeding against two doctors - Dr. Dzieranowski and Dr. Ashfaq. (The Application against both Dr. D. Steer and the Pictou County Health Authority being discontinued). Mr. Langille underwent a colonscopy on January 19, 2010, which was performed by Dr. Dion Steer. Dr. Ashfaq is a pathologist at the Aberdeen Hospital in New Glasgow and reviewed the biopsy slides taken by Dr. Steer. Dr. Ashfaq, after analyzing the slides on January 25, 2010 and diagnosed "invasive adenocarcinoma" (colon cancer). Mr. Langille was subsequently referred to Dr. Dzierzanowski, a general surgeon, who proceeded with surgery on April 22, 2010. During surgery, Dr. Dzierzanowski was unable to identify the lesion in the colon and proceeded with a subtotal colectomy, resulting in Mr. Langille being required to use a colostomy bag. Following the surgery, it was discovered that Mr. Langille did not have cancer but, rather, ischemic colitis.Mr. Langille's Notice of Application claims professional negligence and breach of contract by the Doctors and he seeks general damages, damages for loss of valuable services, and special damages.The Doctors have indicated that credibility will be an issue and that expert evidence will be involved. Significantly, they wish to have trial by jury. The Doctors argue that this is not an appropriate case to proceed by Application. Issue: Should the case proceed by action or application? The applicant’s primary motivation for proceeding by application is his age, 91 years. The Doctors bring this motion seeking an Order converting this Application to an Action pursuant to Rule 6. Result: The presumption in favour of an Action procedure does exist (jury trial, credibility, consideration of relative cost and delay).

Cahuzac v. Wisniowski, 2010 NSSC 258 Summary: Female plaintiff commenced action against a doctor and his incorporated practice seeking damages, alleging while under the doctor’s care and receiving counselling for marital difficulties she had an intimate personal relationship with the doctor. Her husband was also a patient of the doctor and involved in marriage counselling with the doctor. The female plaintiff is seeking an order of confidentiality. Issue: Should a confidentiality order be granted? Result: Motion dismissed. The evidence does not demonstrate the test for a ban on the publication of the female plaintiff’s name. The court is not satisfied that the order sought is necessary to prevent a serious risk to the proper administration of justice or that the salutary effects of a confidentiality order outweigh the deleterious effects on the rights and interests of the parties and public to an open court.

Emergency Medical Care Incorporated v. Canadian Union of Postal Workers, 2011 CanLII 16763 (NS L.A.)

Summary:The Employer is the provider of ambulance and patient transfer services in the province of Nova Scotia. It employs paramedics who operate and accompany the ambulances and transfer vehicles, and also fly in air ambulances. It has a communications centre manned by Communications Officers who receive both emergency and nonemergency calls requesting ambulance and medical transfer service. Their job is to receive calls requesting both emergency ambulances and nonemergency medical transfers, and to dispatch the appropriate vehicles and paramedics. The paramedics are trained in emergency medicine and are classified as either Primary Care Paramedics, Intermediate Care Paramedics, Advanced Care Paramedic, or Critical Care Paramedic. The latter classification has the highest pay level and these paramedics accompany the air ambulance. Communications Officers work closely with paramedics, who are dependent on them for accurate transmission of information, so Communications Officers need to be very knowledgeable about the work of the paramedics. For this reason it is a prerequisite that all Communications Officers be qualified as a Primary Care Paramedic before they are hired as a Communications Officer. The goal is to have Communication Officers who can work at all stations doing both call taking and dispatching with full flexibility. Up until July 1, 2011 the Employer was the provider of emergency ambulance services throughout the province, and in addition provided nonemergency medical transport outside of the Halifax area. The QEII Hospital had its own non- emergency hospital transfer unit to service five different health facilities in Halifax. In 2011 the QEII decided to disband this unit and transfer the work to the Employer. Emergency Medical Care had been acting as a backup prior to this, taking on increasing amounts of non-emergency transfers from the QEII. On May 25, 2010 the Employer wrote to the Union advising that in June of 2010 it would be assuming full operation of the QEII’s patient transfer service which had been managed by the Capital District Health Authority. It added a new classification to the bargaining unit (Transfer Administrator Classification), with primary responsibilities as the coordination of transfers and nonemergency call taking/administration. Issue: The Union refused to enter into negotiations for a wage rate for the newly created position, on the grounds that no change in a wage rate was appropriate because the change in duties only amounted to a reassignment of work, and not the creation of a new classification. Result: Taking emergency calls requires judgment in making assessments of the information being received from callers, who are often stressed and distraught. It requires training and skill in obtaining information from them and assisting them with instructions while they await the arrival of an ambulance and paramedics. They are often dealing with life-threatening decisions. Their work can be very stressful. In contrast the Transfer Administrator’s work is restricted to receiving requests for nonemergency transport and arranging such transport. It does not involve any emergency decision-making. These are all significant differences and one would expect them to be reflected in a wage sought by an employee, or offered by an employer. The grievance is therefore dismissed.

New/Impending Legislation:

 Amendments to Homes for Special Care Act (introduced May 5, 2010) – changes are as a result of abuse and neglect reported in licensed residential homes for persons with disabilities from October 2007 – March 2010. The new legislation gives the Departments of Health and Community Services ability to repeal/suspend a facility’s license if they aren’t in compliance with regulations.  Personal Directives Act (April 1 2010) – allows Nova Scotians to put their personal care wishes in writing and to appoint a delegate to make decisions on their behalf regarding personal care. Personal care was given a broad definition, such that it includes health care, nutrition, residence, clothing, hygiene, safety, comfort, recreation, support services. The person’s wishes can be expressed in a Personal Directive without the assistance of a lawyer. Legislation also provides instructions for selection of a statutory decision maker where a person has not made a directive for purpose of health care decisions, placement in continuing care or home-care services. The Act also allows for a person to name different people for making different types of decisions.  Human Organ and Tissue Donation Act (December 2010 - not proclaimed in force as of April 2011) – Replaces the Human Tissues Gift Act. Requires that hospitals refer all potential candidates after a physician has determined a patient is going to die. Revised Act recognizes common-law partners as substitute decision-makers, requires consent for pre-death procedures like ventilation and medications, requires court authorization if donor doesn’t have capacity to give consent, and requires annual reports to the Minister on the number of potential donors who are not referred (based on medical chart audits).  Personal Health Information Act (November 2010 – not proclaimed in force as of April 2011) – provides consistent, comprehensive rules for management of personal health information rather than the mix of federal/provincial/health profession codes/organization policies and procedures that was the situation earlier. The Act sets out rules on how information is collected, used, disclosed, retained, and destroyed by the health care sector. The new Act supports an electronic records system. Rules include provisions for privacy breach notification, audit reports to track who has had access to electronic health records, and a process for people to request access to their health information.  Tanning Beds Act – (December 2010 - not proclaimed in force as of April 2011) – regulation of tanning beds  Bill 31 – Health Act (amended) (First Reading April 2011) – provides for regulations to designate 20 positions at Dalhousie Medical School for students who enter a contract for tuition support in exchange for serving 5 years in an underserviced area of Nova Scotia  Bill 32 – Nova Scotia Rural Physicians Act (First reading April 2010)- provisions to ensure a supply of physicians in rural Nova Scotia  Bill 34 – Newly Trained Doctors Act (First Reading April 2011) – provisions to bring Nova Scotian newly-trained doctors back to Nova Scotia  Bill 20 – Health Care Sustainability Advisory Council Act (First reading April 2010) - will create a provincial advisory council on the sustainability of health care in NS  Bill 17 – Fair Drug Pricing Act (First Reading April 2011, received Royal Assent May 19, 2011 – not proclaimed in force as of May 24th, 2011) - provides for a stand-alone act that will oversee the Pharmacare programs, Nova Scotia’s public drug plans. The Act will provide the authority to regulate the pricing of prescription drugs paid for by these programs

New Policy Directions:

 Dr. John Ross released a report on emergency room care. The report made recommendations on improvements for:

 Smaller hospitals  Larger hospitals  Funding and emergency care standards  Emergency Health Services (EHS)  Care for seniors  Care for people with mental illness

 The report can be downloaded: The Patient Journey Through Emergency Care in Nova Scotia: A Prescription for New Medicine

 Emergency Care Standards – put together by health professionals who specialize in providing and managing emergency care, district health authorities, and community health records. The standards have been released to the Health Minister and are the final piece the government needs before releasing a plan on how to improve emergency health care. New standards deal with ER’s mandatory use of the Canadian Triage Acuity Scoring System, patient transfer to the nearest/most appropriate facility, staffing standards including minimum training and certification requirements for health care professionals and performance appraisal every two years, ambulance off-load times, and the maximum length of a stay in the ER before admission or discharge.

 The Province introduced the Personal Alert Assistance Program, which provides financial assistance to low income seniors who live alone, receive publicly funded home care services, have experienced recent falls, and use a cane, walker or wheelchair. The program provides up to $480/year to reimburse approved seniors for the purchase of a personal alert assistance service. The program commenced January 1, 2011.

 Cap on price of generic drugs. The province developed a plan aimed at obtaining fair drug prices for Nova Scotians and slow the rapid growth of spending on drugs through Pharmacare. The plan will be finalized in June and go into effect on July 1. The Province has drafted “Fair Drug Price Regulations” Prince Edward Island

Name of Presenter: Thomas P. Laughlin

Current Political Environment:

There will be a Provincial election in the fall (October 3, 2011).

New/Impending Legislation:

New Health Services Act proclaimed on April 10, 2010. Creates protection for apologies and quality improvement measures undertaken by Health PEI. Also creates new entity (Health PEI) for the delivery of health care in the Province.

New Medical Act – Royal Assent on May 15, 2009. Not yet proclaimed – awaiting completion of new Regulations.

New Policy Directions:

New approach to health care regulation in imposition of new Health PEI Bylaws. Implemented in February, 2011.

 Old approach: Individual bylaws per institution, impacted only physicians working in a particular institution.  New approach: One global set of bylaws, encompasses all facilities owned/operated by Health PEI. Actual scope may be broader, and encompass all physicians in the Province.

Proposed Future Initiatives:

The development and implementation of Regulations for new Medical Act.

(New) Professional Requirements for Lawyers:

This will be on the agenda for the Law Society’s upcoming Annual General Meeting in June. Newfoundland Labrador

Name of Presenter: L. Martina Munden, Ms. Munden would like to thank Jessica Dellow, for assistance with the preparation of the summary for Newfoundland Labrador.

New Cases/Appeals:

H. (P.) v. Newfoundland & Labrador (Eastern Regional Integrated Health Authority), 2010 Carswell Nfld 47.

Summary: Applicant H was mother of 16-year-old L, who was diagnosed with borderline personality disorder ("BPD"). L engaged in self-harming behaviour, including overdosing on medication and swallowing harmful objects. After two years of being repeatedly certified under Mental Health Care and Treatment Act and residing primarily in psychiatric hospital, L overdosed while away from hospital on day pass. L was treated and discharged; over next two months, she was re-admitted to hospital three times after swallowing knives, scissors and part of compass. Following last admission, when psychiatrists concluded that L was not certifiable and L wanted to leave hospital, H applied for, and was granted, order detaining L. H subsequently applied for determination of L's capacity to make informed decisions about her health and medical treatment. Issue: Was whether L had legal competence to seek treatment for her mental health condition and to appropriately be capable of making necessary future treatment decisions. Result: Order was made that L lacked legal competence to make such decisions. L was able to understand information relevant to making treatment decisions. While L did not agree that she had BPD, she recognized that she had certain symptoms of it. L also recognized what she was doing, including times when she had attempted to seriously harm herself, and understood treatment options, including risks and side effects. L did not, however, have ability to appreciate foreseeable consequences of her treatment decision or lack thereof. L's inability to control her urge to self-harm and her lack of motivation to involve herself in treatment were manifestations of her condition. Even if L did not lack legal competence, best interests standard based on L's level of maturity was necessary consideration, as L had not reached age of majority. For two years, L had resided in institutional setting; this would have impacted L's level of maturity, thereby limiting her ability to appropriately consider her treatment options. Accordingly, even if L were legally competent, court would have exercised its parens patriae authority to intervene in decision-making related to L's future care.

New/Impending Legislation:

Health Professions Act passed. Seeks to improve public protection and patient safety by providing for the regulation of a number of health professions. Establishes an umbrella model of governance that brings a number of professions together with shared accountability for professional regulation while maintaining their own identities. An Act Respecting the Practice of Medicine, 2011 was introduced in the House of Assembly on April 11, 2011. If passed, it will replace the Medical Act, 2005 and will guide how the College of Physicians and Surgeons of Newfoundland and Labrador regulates the practice of medicine.

Fatal Accidents Act, s.6 amended to allow compensation for loss of care, guidance and companionship.