Introduction to Health Law

B. Barrowman

September 2002

Outline

• what is health law?

• forces shaping evolution of Canadian health law in the 21st century

• health law and ethics

• overview of Canadian legal system, terminology, etc.

• some areas of health law we will cover in the curriculum

Health Law

• field of legal practice, scholarship and law reform relating to the delivery of health care

• deals with health care delivery at macro and micro level

• rapidly expanding and dynamic field - scientific, social, economic, legal, philosophical and political influences

Why Study Health Law in Medical School?

• all aspects of the practice of medicine, and healthcare more broadly, are affected by the law

• important for physicians to have an awareness of how the law affects them and their patients

• Medical Council of Canada expects competency in this area

Influences on the Development of Health Law in Canada

• health care reform movement (re organization and financing of health care system)

• increasing litigation and new types of litigation – e.g. class action suits re medical devices– wrongful life lawsuits

Influences on the Development of Health Law in Canada

• advances in science and technology– e.g. genetic research– reproductive technologies

• advances in information technology– computerized patient information– vast amount of health info on the internet

• evolution of field of bioethics, increasing influence of new perspectives

Law and Ethics

• law influenced by ethics and to some extent the converse is true

• obviously important to comply with the law, but what the law says may not be the ultimate answer to a moral question

• many ethical principles re medical practice now codified - tends to blur the distinction (rules-based vs. virtue ethics)

• some similarities in reasoning - clarifying facts, principles and their application

Overview of the Canadian Legal System

• where does the law come from?

• areas of law

• Canadian constitutional framework

• the court system

Sources of Law

• Legislation– statutes– regulations– federal and provincial

• Judicial Decisions– sometimes referred to as the “common law”– precedents

Nature of the Law

• degree of uncertainty

• role of judicial interpretation

• constantly evolving

Divisions of Law

• Public Law – disputes between individual and state– e.g. criminal law, administrative law,

constitutional law

• Private Law – sometimes referred to as “civil law”– disputes between individuals– e.g. torts, contracts, property law

Canadian Constitutional Framework

• Constitution Act 1867 (British North America Act) - division of powers between federal and provincial governments

• Charter of Rights and Freedoms 1982 - legislation and actions of government can be challenged, based on the rights granted in the Charter

Structure of the Courts

• superior provincial court --> provincial Court of Appeal --> Supreme Court of Canada

• (federal courts)

• (inferior courts)

• administrative tribunals, e.g. NF Medical Board

Health Law Topics

• Canada’s health care system – structure, funding, supply of and access to health

services

• regulation of health professionals e.g. MD’s

• medical negligence

• consent

• confidentiality and disclosure of health information

Health Law Topics

• medical care of minors

• medical care of patients with mental disabilities

• abortion

• regulation of reproductive technologies

• genetics and the law

• end of life decision making

• medical research

1. Structure and Dynamics of Canadian Health Care System

• complex legal framework

• areas of federal and provincial jurisdiction

• Canada Health Act - establishes criteria that provincial health plans are supposed to meet

• provinces responsible for administration of health care - hospitals, insurance for and supply of services

• the future?

2. Regulation of the Medical Profession

• provincial responsibility

• “self-regulating” professions

• body created by statute in each province– e.g. NF Medical Board– standards for licensure– deals with allegations of incompetence,

incapacity or misconduct– can generate its own policies, guidelines

3. Civil Liability

• a.k.a. negligence, “malpractice”, “getting sued”

• law in this area mostly “judge-made”

• informed consent

• standard of care

4. Complex Emerging Issues

– e.g. reproductive technologies– electronic health care records - privacy issues– cost constraints - impact on insured services

and on individual care

• complex issues affected by several sources and divisions of law (courts, legislatures, federal, provincial, criminal, civil, Charter of Rights) as well as ethics, public policy