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Cases affirm advances in health law

|Written By Daryl-Lynn Carlson

If there’s any indication that health law is becoming an increasingly progressive field, one could point to a couple of recent decisions delivered by Ontario courts.

‘Health law is certainly becoming a niche area, and I think the courts are recognizing that,’ says Mary Jane Dykeman.

In those decisions, the courts addressed and provided guidance in areas that had previously been perceived to be unresolved by lawyers whose practice focuses exclusively on health law matters.

“Health law is certainly becoming a niche area, and I think the courts are recognizing that,” says Mary Jane Dykeman of Dykeman Dewhirst O’Brien LLP in Toronto. “Even in the law schools, I’ve noticed that they are offering more courses in specific areas of health law, which was not the case when I went to school.”

Earlier in her career, Dykeman worked as counsel for the Ontario Psychiatric Patient Advocate Office. She points to the Ontario Superior Court of Justice’s decision in Bon Hillier v. Milojevic, which finally resolved the question of the appointment of and subsequent payment for an amicus curiae representing patients through the Consent and Capacity Board, where there have been ongoing concerns about the issue for years.

In this case, the question of whether an amicus representative could be funded, and how, was resolved. The appellant, Isaac Bon Hillier, had suffered a head injury before moving to Ontario from British Columbia. Once he arrived here, the board found, through a capacity assessor, that he was incapable of managing his property.

Bon Hillier hadn’t made an application through Legal Aid Ontario, and in previous situations regarding amicus representation, LAO had taken the position that it wasn’t obligated by statue to fund an amicus, only a lawyer.

Under Ontario’s Rules of Civil Procedure, applicants deemed incapable weren’t permitted to receive funding without representation by some means of a guardian who could advance their position in a meaningful way or at least instruct counsel how to do so.

In a review of the case for the Ontario Bar Association’s newsletter last spring, Joaquin Zuckerberg, counsel for the board and an adjunct professor at the University of Toronto Faculty of Law, acknowledged the decision’s significance.

“After determining that an amicus curiae should be appointed, the court held that it had the authority to fix a rate of remuneration,” he writes. “It reached this conclusion on the basis of the jurisprudence and a review of Rule 52.03 of the Rules of Civil Procedure.

The court recognized that it did not have access to the funds to pay an amicus and refused to make an order requiring the [attorney general] to pay the rate it fixed, which was higher than the legal aid rate.”

He continues: “However, in an extraordinary step, the court, in the exercise of its parens patriae jurisdiction, ordered that, in the event that confirmation was not received from the amicus that he had entered into an arrangement with the [attorney general] for payment of his fees in accordance with the terms of the court’s decision, there should be a stay of the finding of incapacity made by the capacity assessor and of the statutory guardianship of the Public Guardian and Trustee (PGT) created as a result of that finding.”

He notes further that the “stay required the PGT to turn over to the appellant control over all of his assets under its management and had the effect of overturning the decision of the capacity assessor and the [board].”

Zuckerberg emphasizes the significance of the decision in concluding that “practitioners in other areas of the law should take note of this case, which has relevance beyond the scope of [board] appeals. Bon Hillier may be equally applicable to vulnerable self-represented individuals appealing decisions from other administrative tribunals for which the assistance of an amicus curiae may be sought.”

The matter of Vandergiessen v. Mississauga Hospital has also stirred interest by lawyers who practise health law.

In that case, the plaintiff appealed the decision of a lower court to dismiss her claim against a hospital and its physicians.

The plaintiff, alleging she had been involuntarily committed to the psychiatric wing of the hospital more than 12 years earlier, claimed the physicians “were negligent in that they did not exercise reasonable standard of care.”

She also alleged the physicians and hospital failed to follow procedures under Ontario’s Mental Health Act and violated her rights under the Charter of Rights and Freedoms.

The case tested the need for a plaintiff to introduce expert evidence in order to meet evidence standards.

The Court of Appeal sided with the appellant, allowing the appeal with a $10,000 costs award and concluding that the lower court erred in granting a summary judgment to the physicians and hospital on the basis that the plaintiff had failed to provide an expert opinion regarding her care.

Lisa Corrente, a partner at Torkin Manes LLP and chairwoman of the OBA’s health law section, followed the case closely and affirms its importance.

“What the court said was while the plaintiff might now be able to establish all of the elements of her claim without expert opinion, certain allegations that were advanced by her against the physicians in the hospital involved more than just a typical allegation of malpractice, so the Court of Appeal was reluctant to dismiss the action without hearing its merits,” says Corrente.

“What lawyers can take from this is that it’s not essential in every case against a doctor to have medical evidence in order to establish the merits of the case.” There hasn’t yet been a date set for the appeal.

  • Progress in health law is uneven

    R. Douglas Elliott
    The cases discussed are laudable, and show the courts trying hard to give access to justice in the mental health arena. At the same time, cases such as Eliopolous and Williams show another but unhappy trend: our courts are rolling back the law of Crown negligence to the 19th century, and granting sweeping tort immunity to public health officials. Some might consider that progress too, but I do not.
  • Health law

    N.D. Mullins, Q.C.
    The biggesat obstacle to any health law work is the enormous Defence Fund of the Canadian Medical Protective Association, now said to exceed $3 billion. Worse, in some provinces, doctors fees to belong to the CMPA are paid by provincial governments. That is, these governments provide legal aid for doctors charged with malpractice but not for the victims of medical errors or incompetence.

  • Attestations if consent need to go

    franklin galvin
    When will Ontario catch up with the majority of US states who have discarded the kind of ridiculous attestations of consent to medical treatment used here? Unless patients have been to medical school they cannot credibly certify that their doctors have fully informed them, as Ontario forms say, because they do not know. Responsible publicly-funded health Insurance programs, such as US Medicaid require informed written consent in a medical file before paying for any treatment. At 6 cents a page for full written consents that set out treatment rerommended, liklihood of success, risks, patient factors, expected outcome and physician rationale, there is no good reason not to have them. No more claims of foggy patient memories or battery would fill court dockets. Files would be complete and sound medical practice research could be undertaken.
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