 Volume 17, No. 3 - June/Juin 2008
Medical Futility and End of Life Decision-Making
Health Matters is published by the Health Law Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment. |
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Medical Futility and End of Life Decision-Making
Mary Jane Dykeman*
In recent months, end of life cases have assumed new prominence in both the national and international press. The case of Samuel Golubchuk, an 84-year old man of Orthodox Jewish faith, started in the fall of 2007, when physicians at Salvation Army Grace Hospital in Winnipeg proposed to withdraw life support from Mr. Golubchuk, contrary to the wishes of his family. Among a host of ailments, Mr. Golubchuk had suffered a prior brain injury and kidney failure and was being ventilated. The physicians and the family (including the latter’s expert) were at odds over the patient’s cognition. The physicians had concluded that withdrawal of life support was appropriate in the circumstances. The patient’s son argued before the Court that “... as an orthodox Jew, it is our belief that life is paramount and one should do everything possible to maintain life and sustain it, as it is a sin to do anything to hasten death”. The Court granted an interim injunction to keep the patient on life support. It also noted the absence of appropriate mediation in this case, citing the positions of both the Canadian Critical Care Society and Canadian Medical Association, which recommend mediation, arbitration or adjudication where the physicians’ and family’s views differ. In its February 2008 decision, the Court also stated explicitly that the case is not about Jewish law versus physicians’ rights; rather, it is about whether the interim order should be continued to provide ventilation, medication and other life supports to Mr. Golubchuk. That case has been set down for trial for fall of 2008 (assuming there is no finding in the interim that the issues are moot, which could occur in the event of the patient’s death unless the health authority, hospital and physicians ask the Court to continue the case). It will focus on multiple issues, including Charter considerations (s. 2(a) religious freedom; and s. 7 life, liberty and security of the person), as well as the law of battery (since, in the view of Mr. Golubchuk’s family, it would arguably be an assault to touch the patient to remove him from the ventilator). In another Canadian case, Jin v. Calgary Health Region, a September 2007 fall resulted in significant brain injury and coma for 66-year-old Mr. Jin. Physicians wished to place Mr. Jin on a DNR order, on the basis that resuscitation would be unnecessary, overly invasive and potentially harmful. The Court ordered the hospital not to impose the DNR order pending the family’s receipt of a written report from the hospital’s ethics committee, to permit an informed decision. However, Mr. Jin recovered to the extent that media reports show him as speaking, reading and writing while undergoing rehabilitation; there is ongoing discussion about the accuracy of these portrayals, and the true prognosis for this patient. At the same time, the Calgary Health Region is proceeding with an appeal of the order, since it has the potential to set a precedent that judges, not clinicians, should make these decisions. A recent Australian case involving a 29-year-old man, Paulo Melo, has also been controversial. In December 2007, a Court ordered that Mr. Melo be taken off life support after suffering extensive brain and spinal injuries in a motor vehicle accident. Twenty medical experts supported this decision based on medical futility. The patient died approximately 16 hours after being disconnected from life support. In a perfect world:
However, families sometimes insist on treatment that clinicians have determined is medically futile or inappropriate (whether ineffective or counter-therapeutic; or while effective would have a controversial outcome, such as permanent unconsciousness). As noted by Weijer et al (CMAJ 1998; 159: 817-21), tensions arise when the value systems of family (including religion) mean that sanctity of life prevails and a life must be prolonged regardless of clinical outcome. In most instances, good communication and negotiation between clinicians and families can reduce the possibility of families seeking redress through the courts. * Mary Jane Dykeman is a Toronto lawyer who advises health sector clients, including teaching and community hospitals, as well as community mental health agencies. She may be contacted at (416) 949-5356. |
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Apologies Without Reprisal? Barbara A. MacFarlane*
Admitting a mistake, saying sorry and expressing sympathy may be permissible without fear of reprisal during or in subsequent litigation. A Private Member’s Bill (Bill 59), entitled the Apology Act, 2008 (the Apology Act), passed its first reading on April 15, 2008. The intent of the legislation is to make an apology inadmissible in civil proceedings as an admission of fault or liability. It would also prevent insurance companies from denying insurance coverage where an apology is made. Similar Apology Acts have been enacted in British Columbia, Saskatchewan, and Manitoba. Foreign jurisdictions, including parts of the United States and Australia, have also enacted similar legislation. Under the proposed Apology Act, an “apology” is defined as an expression of sympathy or regret, through words or actions, whether or not those words or actions imply an admission of fault. While there has been a growing trend in the health care field to recognize the need to apologize, health care professionals are reluctant to admit mistakes for fear it will be used against them in a medical malpractice lawsuit. This proposed legislation is intended to provide the missing protection to do so without fear of reprisal. It is felt that the Apology Act would encourage health care professionals and institutions to apologize for their errors without that apology being admissible as evidence of fault. Coming clean on medical mistakes would promote healing for patients, both physically and emotionally. It must be remembered that health care professionals are in a fiduciary relationship with their patients and are required to act in their patients’ best interest. While an apology may not be required, our Courts have held that doctors do have a “duty to disclose” their errors, and the failure to do so may result in a cost award or punitive damages. Some cases illustrate this point: In the Ontario case of Vasdani v. Sehmi,[1] a defendant doctor operated on the wrong vertebra of a patient. Although the doctor learned of his error a year later, he did not tell the patient. Six years later, the patient was advised of the error through a different source. The Court held that doctors have an ongoing “duty of disclosure” regarding their errors. The plaintiff was entitled to a sum of money in lieu of interest lost on his damages for the time when disclosure should have been made until the date of the claim. The Court found that the plaintiff’s delay in discovering his claim was due to the doctor’s failure to disclose his error. In Gerula v. Flores,[2] a defendant doctor discovered that he had operated on the wrong vertebra on the plaintiff’s spine, but changed the patient’s medical chart to cover up his mistake. Although punitive damages were refused at trial, the Court ordered the defendant doctor to pay substantially all of the plaintiff’s legal costs. The Court reasoned that the higher scale of costs was merited since the alteration of the records denied the plaintiff the ability to seek a proper second opinion, and caused the plaintiff “substantial difficulty in prosecuting his action” and “gravely prejudiced” the plaintiff’s claim. In Shobridge v. Thomas,[3] the defendant surgeon discovered (three months after surgery) that a six-foot long gauze roll was left inside his patient, causing significant complications and infection. The doctor attempted to conceal the error. He ordered the nurses not to record the incident in the charts or file a hospital report as required, thereby ensuring that no paperwork existed of the incident. The Court found the doctor had a duty to disclose his error to the patient, and his concealment of his error merited aggravated and punitive damages (totalling $45,000) for “bad faith and unprofessional behaviour deserving of punishment.” These cases, however, do little to correct (if possible) medical consequences that may be caused due to errors that go unreported. Our Courts can only provide monetary compensation. In February 2003, the College of Physicians and Surgeons of Ontario released a policy on disclosing “adverse events” (medical errors) to patients. An adverse event would include any harm (i.e., “unexpected or normally avoidable outcome that negatively affects the patient's health and/or quality of life”), which occurs (or occurred) in the course of health care treatment and is not due directly to the patient's illness. Disclosure means the “acknowledgement and discussion of a negative outcome with the patient”. This policy falls short of an actual apology for the outcome — an apology that many patients feel they need. Additionally, recent amendments to the Regulated Health Professions Act, 1991 make it mandatory for a member to report any offence, conviction or finding of negligence or malpractice. Certainly, the amendment is valuable to assess the quality of health care professionals, and the reporting provides information when choosing the right health care professional. However, it does little to assist a patient who is a victim of an error. If passed, Bill 59 may promote timely reporting of errors to ensure quality medical care and be used as a tool to promote the resolution of malpractice lawsuits. * Barbara A. MacFarlane is a partner at Torkin Manes Cohen Arbus LLP and practices medical negligence and personal injury litigation and can be reached at (416) 360-4730. The author wishes to express sincere thanks to Sarah Han, Student-at-Law, for her assistance in writing this article.
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New Canadian Disclosure Guidelines David Cameron*
On March 18th, the Canadian Patient Safety Institute (CPSI) released “The Canadian Disclosure Guidelines”, a 36-page document to assist health care providers in their understanding of the process of disclosing adverse events to patients and their families. CPSI developed the Guidelines over two years using a collaborative process involving a broad range of health care organizations and experts. The goal of the Guidelines is to support the development and implementation of disclosure policies, practices, and training methods. Disclosure of an adverse event is an essential part of patient safety. Although disclosure of adverse events may seem straightforward and simple, it is actually a profoundly difficult duty for health care providers to carry out. The Guidelines assist by laying out the disclosure process from start to finish and by providing insights to help with the disclosure conversations. Flowcharts, checklists, and practical points are supported by a framework of the theory of disclosure in concise form. A useful list of references is included in the Appendix. Although most health care institutions already have disclosure policies in place, the Guidelines will be useful both in providing a nation-wide consistency to the process and in providing a succinct and user-friendly publication. Using the Guidelines to refine existing disclosure policies is timely for institutions in Ontario governed under the Public Hospitals Act, as new regulations effective July 1, 2008 mandate disclosure of such events. The CPSI was established in 2003 as an independent not-for-profit corporation, operating collaboratively with health professionals and organizations, regulatory bodies and governments to build and advance a safer health care system for Canadians. The Canadian Disclosure Guidelines are available from the CPSI website at www.patientsafetyinstitute.ca. * David Cameron works as a physician and a lawyer and is the principal of Cameron Health Law Consulting. He can be reached at (905) 648-3003. |
| Legislation Introduced to Modernize the Food and Drugs Act and Permit Recalls of Unsafe Consumer Products Emily Larose and Frank Monteleone* On Tuesday, April 8, 2008, the federal government tabled Bills C-51 and C-52 in Parliament for first reading. This article highlights the key elements of the proposed new legislation. Bill C-51: Changes to the Food and Drugs Act Bill C-51 proposes substantial changes to how Health Canada regulates therapeutic products, which includes drugs, medical devices and cells, tissues or organs distributed for therapeutic uses. The proposed changes include an expedited approval process called "progressive licensing". Under this process, if a manufacturer can establish that a new therapeutic product's benefits outweigh its risks, the product can receive speedy market authorization. Progressive licensing would be coupled with "life-cycle" monitoring or testing after the product launch and increased adverse reaction reporting. The Minister of Health would have the authority to approve new products conditionally and to order a recall if at any time he believes the product poses a danger to the public. If passed, this legislation would not affect currently approved products. The Bill contains the broad principles of this new regulatory regime; the details are to be provided in new regulations which were not released with the legislation and are not expected until the fall of 2008 at the earliest. As the legislation works its way through Parliament and its Committees, watch for further details of the new regime and a heated debate on the merits of progressive licensing. The government has not announced its schedule for Bill C-51 to be passed in the House of Commons and the Senate, and it is unlikely to be passed before this fall. The Bill has the support of many organizations including the innovative and generic drugs trade associations. Bill C-52: The Canadian Consumer Safety Act Bill C-52, the Canadian Consumer Safety Act, would allow the Minister of Health to require consumer product recalls where the product is unsafe and a danger to human health or safety. The Act would apply to consumer products that are used for non-commercial purposes, but would not apply to food and drug products covered by the Food and Drugs Act. Again, the Bill outlines the broad principles of the proposed consumer product regulatory scheme and leaves the details to the regulations to be enacted. There is broad support among manufacturers, retailers and the public for the power to compel a recall of an unsafe consumer product that poses a danger to human health or safety. Everyone involved with consumer products should follow the progress of Bill C-52 in Parliament to ensure the final details of the regime are workable and balanced. Bill C-52 passed second reading in Parliament on May 1, 2008 and will now go to Committee for review and possibly public hearings, the details of which have not yet been announced. * Emily Larose (416) 860-5217 and Frank Monteleone (416) 869-5727 provide advice to Life Sciences clients at Cassels Brock LLP. |
| Ontario Court of Appeal Reconsiders Approach in “Wrongful Life” Claim Kathryn Frelick and Alia Karsan* The Ontario Court of Appeal has clarified the approach to be taken in considering claims by children who have been born with disabilities. It is well established in Canadian law that there is no cause of action for “wrongful life”. In other words, a child is not entitled to sue for damages to compensate for being born. While this decision did not consider whether such a cause of action could ever exist in Ontario, it provides a useful analysis of the issues. Judgment: Ontario Superior Court of Justice Mr. and Mrs. B and their twin daughters (the Plaintiffs) brought an action against Mrs. B’s obstetrician, Dr. H. Dr. H prescribed Clomid, a drug intended to stimulate ovulation, to Mrs. B. Subsequently, she became pregnant with twins, both of whom were born prematurely by emergency cesarean section on December 2, 1992. Both children suffer from cerebral palsy and severe disabilities due to their premature birth. The Plaintiffs alleged that Dr. H was negligent in failing to adequately inform Mrs. B about the risks associated with Clomid, including misstating the risk of having twins. They alleged that the Clomid caused the twin pregnancy, which caused the premature births, and which in turn caused the injury/disability to the twins. Dr. H testified that his usual practice when advising patients about the risks of Clomid was to provide them with a leaflet from the manufacturer that stated that the risk of twins was nearly 10 percent. He would also advise them that, in his clinical experience, and based on the lower dosages that were prescribed in Canada, the risk of twins was in the three to five percent range. The Plaintiffs argued that, while Mrs. B would not have terminated the pregnancy, Dr. H’s failure to adequately inform her of the risks associated with Clomid deprived her of the choice to attempt pregnancy without taking a fertility drug. Mrs. B had a previous history of miscarriage, and her first child had been born prematurely. Mrs. B denied that she was given any information about the risk of twinning and testified that she would not have taken the drug had she known there was any risk of having twins. Jury decision The jury found that Dr. H was negligent in failing to adequately disclose the material risks associated with Clomid and awarded the Plaintiffs almost $12 million. Specifically, the jury found that he understated the risk of increased twinning associated with taking Clomid. The jury concluded that the disabilities to the twins would not have occurred, but for Dr. H’s negligent advice, and that a reasonable person in Mrs. B’s position would not have taken the drug if properly advised. Reasoning of Justice G. I. Pardu Justice Pardu disagreed with the position of the defendant that the action was unsustainable because it was a claim for “wrongful life”. In considering this argument, she noted that claims by children born with disabilities are divided into two categories: cases where the injury has been caused by the wrongful act or omission of another, and cases in which, but for the wrongful act or omission, the child would not have been born at all (i.e., wrongful life). She held that it was not a wrongful life case; rather, it was a case in which the injury was caused by the wrongful act or omission of Dr. H. Mrs. B sought the advice of Dr. H to help her achieve a healthy pregnancy. In failing to advise her of the risks, it was foreseeable that those risks might arise. Justice Pardu stated that there was no policy reason to deny recovery to the twins in this situation. Decision of Ontario Court of Appeal The defendant physician appealed the jury’s finding that his negligence caused Mrs. B to take the Clomid as being unreasonable and contrary to the evidence. The Court of Appeal found that it was open to the jury to infer from the evidence that, in Dr. H advising Mrs. B that the risk of twins was three to five percent, she understood that he was minimizing the risk down to zero. On the issue of whether this was properly a claim for “wrongful life”, the Appeal Court was of the view that the two-category approach did not provide a coherent theory to assist courts in determining whether a child could recover damages from a physician for being born with injuries. The Court of Appeal determined that the correct approach would be to apply principles of negligence law and to determine whether there was a duty of care owed to the unborn fetus. The Court held that the doctor did not owe a duty of care to the future children not to cause them harm by prescribing Clomid to their mother. Dr. H owed a duty of care to Mrs. B to ensure that she possessed sufficient knowledge about the material risks of treatment so as to make an informed decision whether to take Clomid. In the result, the twins did not have a cause of action against the physician. Implications Courts in Canada have long struggled with articulating a coherent theory of liability, which also addresses public policy concerns relating to compensating someone who is born disabled. In this case, rather than determining whether the claim was properly “categorized” as a wrongful life claim, which was the approach taken by the trial judge, the Appeal Court first looked at negligence principles. The Court found that the twins had no cause of action because the doctor did not owe a duty of care to the unborn children. Since there was no duty of care owed, it was not necessary for the Court to determine whether and in what circumstances the courts may recognize a cause of action for wrongful life. * Kathryn Frelick is a partner in the Health Industry Practice Group at Miller Thomson LLP and can be reached at (416) 595-2979. Alia Karsan is a lawyer with a focus on health issues. |
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Message from the Chair Jasmine Ghosn*
As an addendum to this message, I will share with you some recent health law initiatives from across Canada, including Ontario, that were part of a round-table discussion at the CBA National Health Law Section Executive meeting in Ottawa earlier this month. I also want to take this opportunity to thank our 2007-2008 Executive members whose names appear on the OBA website, for their continued dedication and hard work this year. As always, we have had a great team on the Executive. As for next year’s Executive, and for the second year in a row, we will be holding an election! This I understand is a rare occurrence with OBA Sections, and signals a growing interest in participation on our Executive. We are delighted to have 13 nominees for the 10 spots available for “Member-At-Large”. For information on the 2008-2009 nominees and the election process, please click here. The new slate of Executive members will be presented at our year-end dinner scheduled for June 17, 2008. The evening will also include what we anticipate to be a lively debate-style program entitled “Abusive Physicians or Abusive Administrators?” Presenters will include John Morris of Borden Ladner Gervais LLP, Tracey Tremayne-Lloyd of Gardiner Roberts LLP and Lisa Constantine of McCarthy Tétrault LLP. The “debate” will address the management of hospital-physician disputes and how these impact on patient care. For a copy of the program brochure, please click here. For those members who practice in the Ottawa/Eastern region of the Province, we are pleased to present a program for you as well, thanks to the efforts of our regional representatives – Maureen Murphy and Robert Sheahan of Gowlings in Ottawa. On Thursday, June 12, 2008, the Ottawa office of Gowling Lafleur Henderson LLP will be hosting a “mini-med school” lunch program entitled “I’m not a Doctor ... but I Play One in the Courtroom: Working with Medical Experts to Effectively Communicate Medical Terms and Imaging”. For a copy of the program brochure, please click here. As a final note, we’d like to give you the heads up that, in 2009, the OBA Health Law Section will be celebrating its 25-year anniversary. Plans will soon be underway for planning an appropriate event to honour our OBA members who have helped put health law on the map here in Ontario. If anyone is interested in being part of the planning committee, please feel free to contact a member of our Executive. In closing, I extend to you – our members – best wishes, and hope to see you soon at our upcoming events. Best Regards, Jasmine Ghosn
Update on National Health Law Developments and Ontario Legislative/Reform Initiatives Below is a snapshot of some new and developing issues in health law from across Canada and Ontario: 1. Physician Assistants Emerging as a New Profession
In April 2008, the Government of Alberta announced that, as part of its action plan to make the public health care system more efficient, it would develop a policy to introduce and support the role of Physician Assistants in the health care system. For more information see: http://www.alberta.ca/home/NewsFrame.cfm?ReleaseID=/acn/200804/233275791DEAD-C59D-FD03-CA9E332EF8509BDB.html Meanwhile, and earlier this month, McMaster University announced that, in September 2008, it would be launching Canada’s first civilian program for an undergraduate level of Physician Assistants, who will practice under physician supervision – see announcement on-line: http://fhs.mcmaster.ca/main/news/news_2008/physician_assistant_program.html 2. Alberta Replaces its Nine Regional Health Authority Boards by a Single Provincial Health Services Board effective May 15, 2008 This announcement comes just weeks after Alberta introduced its new action plan for improving efficiency and access to health care. For more information, click here: http://www.health.alberta.ca/regions/HSB-Minister-letter-May15-08.pdf 3. Manitoba Enacts The Healthy Child Manitoba Act This Act received Royal Assent in November 2007 and was established to guide the development, implementation and evaluation of the Healthy Child Manitoba Strategy in the government and in Manitoba communities generally. The Strategy aims to achieve the best possible outcomes for Manitoba’s children, as they relate to (a) physical and emotional health; (b) safety and security; (c) learning success; and (d) social engagement and responsibility. The Act also establishes a Provincial Healthy Child Advisory Committee whose role is to primarily advise Cabinet on community strengths and needs related to children. 4. BC First Province to Introduce E-Health Database Legislation British Columbia could be the first Province to enact legislation creating a framework governing access and privacy of electronic health information databases, including giving individuals the ability to mask their own electronic health information. Bill 24, E-Health (Personal Health Information Access and Protection of Privacy) Act was introduced on April 10, 2008, and is available on-line at: http://www.leg.bc.ca/38th4th/1st_read/gov24-1.htm 5. Newfoundland Court Decision Requires Disclosure of Quality Assurance Report in Public Interest in Commission of Inquiry on Hormone Receptor Testing The Newfoundland Eastern Regional Integrated Health Authority brought a court application to prevent the Commission of Inquiry on Hormone Receptor Testing from public production of reports prepared by external consultants in their review of laboratories involved in testing breast tissue samples. The Court rejected the notion that the reports were protected from disclosure under the Quality Assurance provisions of the Evidence Act, and further rejected that they were protected by privilege pursuant to the Wigmore Principles. A copy of the decision can be found at: 6. Health Canada Introduces Bill C-51 to Modernize the Food and Drugs Act and Bill C-52 to modernize the Hazardous Products Act Put simply, Bill C-51 will allow the government to continuously monitor the safety of products even after they are approved, allow for recalls as soon as a problem is known, allow for government intervention at the time of importation rather than the point of sale, and implement heftier fines. Bill C-52 aims to put a general prohibition on the manufacture, importation, advertisement and sale of consumer products that are dangerous to human health or safety. Bill C-52 also aims to require mandatory reporting of health and safety issues upon official request, will impose hefty fines of up to $5 million for serious contraventions, and grant courts the authority to award even higher amounts in cases where suppliers have acted wilfully or recklessly. For more information on Bill C-51, click here: http://www.parl.gc.ca/common/bills_ls.asp?lang=E&ls=c51&source=library_prb&Parl=39&Ses=2 For more information on Bill C-52, click here: 7. Ontario’s Civil Justice Reform Update – Report of the Honourable Coulter Osborne Medical malpractice and health care litigators will be interested to know that in November 2007 the Ministry of the Attorney General released a comprehensive 150-page report of The Honourable Coulter A. Osborne, Q.C., which includes 81 recommendations for reform of the civil justice system, with a view to making the system more accessible and more affordable. The recommendations are broad sweeping and address, inter alia:
Individuals who have an interest in making submissions on the recommendations are invited to do so: For more information, click here: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/CJRP-Report_EN.pdf 8. Ontario Legislative Update – A Focus on Children and Child Health On April 27, 2008, Bill 8 – Healthy Food for Healthy Schools Act, 2008, introduced by Ontario’s Minister of Education, received Royal Assent. It amends the Education Act to add provisions regulating the trans-fat content of all food and beverages sold in a school cafeteria and allowing the Minister of Education to make regulations exempting foods or beverages in which trans-fat content originates exclusively from ruminant meat or dairy products. The Bill also adds requirements for school boards to ensure that food and beverages sold in vending machines, or otherwise provided on school premises or in connection with school-related activities, comply with nutritional standards to be set out in regulations. The Bill attempts to address the concern that the rate of obesity in children has tripled over the past 25 years, putting them at higher risk for diabetes and heart disease. Interestingly, after the Bill passed second reading, New Democrat MPP Rosario Marchese introduced a Private Member’s Bill (53) that also aims to fight child obesity in Ontario. Bill 53, if passed, would amend the Consumer Protection Act, 2002, to ban commercial advertising for food or drink directed at children under the age of 13 years. Protecting children’s health was also the focus of government Bill 69 introduced by the Minister of Health Promotion on April 30, 2008: the Smoke Free Ontario Amendment Act, 2008. If passed, it will prohibit smoking or having lighted tobacco in a motor vehicle while a person under 16 years old is present. Two other bills with a focus on children and health include Bill 46 and Bill 52. Bill 46 – Education Amendment Act (Organ Donation Education), 2008 – is a Private Member’s Bill, which passed first reading on March 26, 2008, and is aimed at requiring school boards to include education on the importance of organ donation in the curriculum of students in the senior division. Bill 52 – Bill of Rights for Pupils with Diabetes, 2008, passed first reading on April 7, 2008 and is aimed at not only providing kids with diabetes with a bill of rights, but also requiring school officials to assist with the care of these children at school. 9. Recommendations from Coroner’s Inquest into the Murder of Windsor Nurse Lori Dupont Gives Rise to Introduction of Private Member’s Bill New Democrat Andrea Horwath introduced a Private Member’s Bill in response to one of the jury recommendations made in the Lori Dupont Inquest. Bill 29 – Occupational Health and Safety Amendment Act (Harrassment and Violence), 2007, aims to protect workers from violence and harassment in the workplace, and makes it possible for workers to refuse an unsafe work environment, when that includes harassment, bullying and other kinds of violence in the workplace. 10. Law as it Affects Older Adults - Law Commission of Ontario (LCO) Releases May 2008 Consultation Paper The LCO has initiated a multi-year project intended to consider frameworks and develop a new approach to the law affecting older adults, particularly in the areas of estate, pension, benefits and health laws. The LCO is seeking comments on legal issues and legal frameworks impacting on access, participation by older adults, barriers to justice, living environments, decision-making, etc. The deadline for submission is July 7, 2008. A copy of the consultation paper is available here: http://email.accountsupport.com/horde/imp/view.php?popup_view=1&index=11100&mailbox=INBOX&actionID=view_attach The OBA is submitting a response to the consultation paper. Comments for inclusion as part of this important single submission are encouraged. Please contact Louise Harris. |
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Coroners’ Inquests in the Health Care Sector and Beyond Claire Hicks*
This article summarizes the highlights of a CLE program put on by the Health Law Section as part of the OBA’s 33rd Annual Institute on February 4, 2008. Registrants had the privilege of hearing Dr. Bonita M. B. Porter, Ontario’s Chief Coroner, speak from the Coroner’s perspective during this original CLE program on inquests in the health care sector and related areas. The session was part of the OBA’s 33rd Annual Institute for the Latest Updates in Law and Practice, held in Toronto on February 4, 2008. Chaired by Fannie Dimitriadis, Counsel at the Ministry of Health and Long-Term Care and the Ministry of Health Promotion, the program consisted of excellent presentations made by esteemed experts in inquest law. Dr. Porter focused on the issues facing the Coroner in deciding whether to hold an inquest into a person’s death when an inquest is not required by law. The Chief Coroner also addressed the numerous challenges facing counsel during inquest proceedings (for example, the importance of understanding the distinction between inquests and other court proceedings). Janice E. Blackburn of Bersenas Jacobsen Chouest Thomson Blackburn LLP spoke about representing a health care facility at an inquest. In addition to providing helpful advice for counsel, such as accessing the Crown’s brief, Ms. Blackburn shared her insights on dealing with interviews by police investigating the circumstances of a death at a facility. Speakers held the attention of the well-attended crowd throughout the afternoon, as experienced counsel presented on matters concerning police powers, advising clients interacting with the Coroner, and representing the deceased’s family during the inquest process. Another recurrent theme was dealing with the media and how to manage questions from members of the press during a high-profile inquest. The Health Law Section wishes to thank all speakers for contributing to an interesting and informative session, as well as those who participated in its development, including: Bill Georgas, Counsel, Ministries of Health and Long-Term Care and Health Promotion; Lisa Alleyne, Borden Ladner Gervais LLP; Mary Jane Dykeman, Barrister & Solicitor; and Jasmine Ghosn, Barrister & Solicitor. * Claire Hicks is currently completing her articles at the Ministry of Health and Long-Term Care and the Ministry of Health Promotion. |
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Health Law Section Program Focuses on Health Profession Corporations
John McMillan*
This article summarizes the highlights of a March 5th Health Law Section program focusing on the unique challenges of health profession corporations. John McMillan began the presentation with a brief history of health profession corporations generally, with specific reference to the unique status enjoyed by physician corporations and dentist corporations, in that they can issue non-voting shares to family members of the physician or dentist shareholder. After giving an overview of the main steps of the process, Mr. McMillan also touched on certain specific issues relating to the purchase and sale of shares of an incorporated health practice. Irwin Fefergrad, Registrar of the Royal College of Dental Surgeons of Ontario, spoke to the more common pitfalls of the process in applying for and obtaining a Certificate of Authorization from the College, including application deficiencies and overly creative structures. Mr. Fefergrad also updated the audience on the outstanding issues relating to whether the use of holding companies and trusts (other than for minors) should or will be permitted vehicles for ownership of shares in professional corporations. Bruce Ball of BDO Dunwoody discussed the three main benefits a doctor or dentist may achieve, being the deferral of tax on professional income, the ability to split after-tax professional income earned by a professional corporation with a spouse or adult children, and primarily, in the case of dentists, the possibility of realizing a gain eligible for the capital gains exemption. Each of the benefits were then discussed in more detail, as well as a brief summary of the costs associated with incorporation. The basic tax consequences when a professional practices in a partnership were also addressed. David Harris of Harris, Beattie McLennen finished the presentation with a discussion of the taxation issues arising when incorporating physicians in a group practice, common group practice structures and possible approaches to the more common challenges faced by group practices in the process of incorporation. The OBA Health Law Section wishes to thank the speakers for their generous insights. * John McMillan is a health law practitioner, (416) 364-4771. |