2017 Health Law in Review


2017 Health Law in Review


On January 23rd, 2018, members from Ng Ariss Fong, Lawyers, will present a webinar entitled “2017 Health Law in Review.” The purpose of this presentation is to focus on key developments and cases relevant to practitioners in 2017, allowing them to stay at the forefront of issues in 2018.

2017 saw major health policy changes at the Federal level as well as a new Provincial New Democratic government in British Columbia. These legislative changes were often presaged by growing public concern into topics that were previously afforded only minimal public attention. The dramatic impacts of the opioid crisis or the widespread perception that institutions have inadequately dealt with the realities of sexual misconduct in the workplace or university have led to a variety of legislative and legal responses.

Specific topics

A. The Opioid Crisis

The Opioid Crisis is arguably the greatest public health crisis in Canada at the moment, accounting for some 4,000 deaths in Canada and 1,100 deaths in BC alone in 2017 Over the past year, the Federal government has introduced a variety of legislative changes to combat the crisis. The government streamlined the approval process for new supervised injection sites, allowed the use of prescription heroin treatment and amended the Controlled Drugs and Substances Act to remove barriers to persons reporting overdose events.

B. Marijuana Legalization

The Federal Government introduced legislation which aims to legalize marijuana by July 2018 and allowing the provinces to regulate its production and sale. In response to this shift, provincial governments have introduced a variety of regulatory schemes aimed to safely regulate the sale of marijuana. These include fully public schemes, as in Ontario, and mixed public-private retail schemes, as in Alberta and, likely, BC.

C. Mental Health Act

Public scrutiny of BC’s Mental Health Act increased in 2017 in response to a report detailing the ways in which the Act permits indefinite detention of persons with weak procedural safeguards. Although persons facing detention under this system are entitled to representation by counsel, until recently the BC government did not provide legal aid for such cases. The Province reversed this course after settling a Charter challenge from a person facing detention who was denied legal aid coverage. As a result, legal aid now covers legal advice for persons facing detention under the Mental Health Act.

D. Medical Assistance in Dying

Following 2015’s Carter decision, governments in Canada have moved to implement medical assistance in dying legislation and programs with inconsistent results. The Federal governments amendments to the Criminal Code following Carter face renewed Charter scrutiny over the constitutionality of requirements that patients suffer from a “grievous and irremediable” condition that results in a “reasonably foreseeable” natural death to access MAID services. The BC Civil Liberties Association and two individual plaintiffs have launched a Charter challenge to these requirements. (Lamb v Canada (AG), 2017 BCSC 1802) Litigation in Ontario meanwhile has clarified the exact meaning of the reasonable foreseeability requirement. (AB v Canada (AG), 2017 ONSC 3759)

E. Sexual Misconduct

The role of institutions in responding to sexual misconduct has also come under increased scrutiny. The past year saw complaints at the BC Human Rights Tribunal against the University of British Columbia. Students alleged that the University discriminated against them on the basis of their gender by failing to adequately respond to sexual misconduct complaints. In light of these issues, the provincial government in 2016 introduced the Sexual Violence and Misconduct Policy Act which required all post-secondary institutions in the Province to implement sexual violence and misconduct policies. UBC introduced its policy during the previous year. It committed the University to reducing barriers to reporting sexual violence or misconduct and created a Sexual Violence and Prevention and Response Office to act as a single point of contact for community members who experience sexual violence or misconduct.

F. Medical Negligence

In a rare case, a BC hospital was recently found liable in both negligence and under BC’s Occupier’s Liability Act. (Paur v Providence Health Care, 2017 BCCA 161) The case stemmed from a patient who attempted suicide while detained in the hospital under the Mental Health Act. The attempt left the patient with severe, permanent brain damage. The court reaffirmed that the standard of care for a negligence action should not be based on what could have been done better in hindsight, but what was reasonable before an accident took place.

G. Personal Injury

2017 also saw a major shift in judicial treatment of mental injury claims. In Saadati v Moorhead, 2017 SCC 28, Justice Brown held that mental injury claims need not correspond to a recognized psychiatric illness. Plaintiffs claiming mental injury must show that they experience “serious and prolonged disturbance that rises above ordinary annoyances, anxieties, and fears that come with living in civil society.” This new approach now harmonizes judicial treatment of mental and physical injuries, the latter of which never required plaintiffs to establish that their injuries amounted to a recognized condition. This new approach therefore finally provides equal protection to victims of both mental and physical injury.

In a separate trial decision, a BC court awarded surrogacy fees to a plaintiff who was rendered unable to have children by a serious motor vehicle accident. (Wilhelmson v Dumma, 2017 BCSC 616) Despite surrogacy fees being illegal in Canada under the Assisted Human Reproduction Act, the court accepted that the plaintiff may be required to pay fees for a surrogate in the United States where such fees are legal.

H. First Nations Health

Finally, 2017 also saw a major shift in the Federal government’s approach to First Nations governance and health. The government created a new cabinet position for the Minister of Indigenous Services. The new position is responsible for the delivery of services to First Nations communities, including health care. Despite this, the Federal government continues to litigate a decision of the Canadian Human Rights Tribunal that Canada discriminated against First Nations children on reserve by providing inequitable and insufficient funding for child welfare services. A 2017 decision of the CHRT found Canada non-compliant with earlier rulings by that same tribunal and issued further compliance orders requiring Canada to shift modify its implementation of Jordan’s Principle.