Law Commons^™

Informing The Future Of End-Of-Life Care In Canada: Lessons From The Quebec Legislative Experience, Michelle Giroux

Dalhousie Law Journal

There have been numerous and challenging developments respecting endof-life care in Canada. In Quebec, political consensus and changes in public opinion led to the adoption of end-of-life care legislation. This paper discusses the context and foundation of that reform and reviews its content with the objective of informing the future of end-of-life care in Canada. In the first part of the paper I explore the balancing of the right to life and autonomy, with a focus on the approach chosen in Quebec by the Legal Experts Panel Report. In Part 11, I discuss Quebec's adoption of An Act Respecting End-of-Life …

Cross-Cultural Dynamics In Palliative Care: The Emerging Canadian Scenario, Chidi Oguamanam

Dalhousie Law Journal

As modern technologies leverage medical sciences, life expectancy is on the rise in Canada, and indeed globally with a remarkable increase in the elderly population in need of health care. The same is true of the diversity of cultural groups who are now patrons and stakeholders in Canada's health care landscape. An emergent feature ofthis landscape is the complexity ofcontexts for negotiating and mediating medical care delivery at the end of life. This paper examines the gaps in regulatory and legal interventions as well as the gaps and opportunities to negotiate the transition to palliative care in cross-cultural contexts that …

The Future Of Health Law: How Can Law Meet Emerging Health Challenges?, Colleen M. Flood, Lorian Hardcastle

Dalhousie Law Journal

Canadians have often prided themselves on having one of the best health-care systems in the world, but in recent years our system has fallen to the bottom of relevant international comparisons. Incremental attempts to improve the system have not resulted in significant improvements and the reality is that our most pressing challenges can be addressed only through ambitious, systemic reforms. For example, it is well established that Canada's patchwork scheme for providing long-term care will not scale to meet growing needs as a quarter ofthe population enters retirement age over the next two decades.' As yet further examples, the Canadian …

Imagining Global Health With Justice, Lawrence O. Gostin

Dalhousie Law Journal

This article offers a way to achieve global health with justice as a global health imperative. It is possible to have global health without justice, meaning that improvements in health outcomes could be achieved, but without a fair distribution of the benefits of good health. It is also possible to have justice without global health, where health outcomes are evenly distributed across the population but overall health is not improved. With this understanding, this article challenges current ways of understanding global health, and argues that absolute reductions in morbidity and premature mortality are not robust indicators of success in the …

Modernizing The Canada Health Act, Colleen M. Flood, Bryan Thomas

Dalhousie Law Journal

The Canada Health Act (CHA) was adopted in 1984, to shore up a health-care system conceptualized in the 1960s. Under the CHA, universal coverage is limited to "medicallynecessary" hospital and physician services, to the exclusion of vital goods and services such as outpatient pharmaceuticals, dental care, long-term care, and many mental health services. Inequities resulting from these gaps in public coverage are partly to blame for pushing Canada's health system to the bottom ofrecent international rankings. But there is more to modernizing Canada s health care system, we argue, than filling these gaps in universal coverage. Every major health system …

A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva

Dalhousie Law Journal

International human rights law recognizes a right to health. A majority of domestic constitutions recognize health-related rights. Many citizens believe that they have a moral right to health care. Some theorists agree. Yet the idea of a right to health care remains controversial. Specifying the nature of such a right invites more controversy. Indeed, most models of the right face persistent problems that threaten to undermine the conceptual coherence of a right to health care. This article accordingly sketches preliminary arguments for a new, goal-oriented model of the right to health care. It explains that the model avoids most of …

And Miles To Go Before I Sleep: The Future Of End-Of-Life Law And Policy In Canada, Jocelyn Downie

Dalhousie Law Journal

This paper reviews the legal status of a number ofend-of-life law and policy issues that have, to date, been overshadowed by debates about medical assistance in dying. It suggests that law reform is needed in relation to palliative sedation without artificial hydration and nutrition, advance directives for the withholding and withdrawal of oral hydration and nutrition, unilateral withholding and withdrawal of potentially life-sustaining treatment, and the determination of death. To leave the law in its current uncertain state is to leavepatients vulnerable to having no access to interventions that they want or at the other extreme, being forced to receive …

A Consumer Protection Perspective On Regulation For Healthier Eating, Barbara Von Tigerstrom

Dalhousie Law Journal

This article explores the potential for a consumer protection perspective to complement public health approaches in designing and justifying laws that aim to promote healthier eating, such as food labelling regulations or restrictions on marketing and advertising. Consumer protection and public health are distinct perspectives, but they share the goal of protecting health and both accept the need for regulation to protect important interests. Consumer protection objectives could be used to defend public health measures that are challenged as infringing rights or restricting trade. Insights from consumer law and scholarship could also contribute to discussions about when regulatory intervention to …

Justified Outbreak: Bringing Together Law, Public Health, And Ethics During An Infectious Disease Emergency, Clark Colwell

LLM Theses

Infectious diseases have recently found renewed significance in Canadian scholarship, with a corresponding increased interest in Canada's overall preparedness, including legal preparedness, to combat infectious disease emergencies. Nearly every Canadian province has emergency legislation containing a "basket clause" - a provision which, for the duration of an emergency, authorizes a decision maker to take 'all necessary measures' to defeat it. Public health legal preparedness scholarship has not yet examined what criteria the decision maker must consider before deciding to deploy measures that could seriously impact the rights of individuals, including those under the Canadian Charter of Rights and Freedoms. This …

El Aborto En El Derecho Transnacional: Casos Y Controversias: Introducción, Rebecca Cook, Joanna Erdman, Bernard Dickens

Articles, Book Chapters, & Popular Press

El debate jurídico y judicial sobre el aborto ha tenido, a lo largo del siglo XX y principios del XXI, importantes revoluciones en su abordaje teórico y práctico, que son expresión de estrategias de sectores sociales, religiosos y políticos que en ocasiones resultan contrapuestas. Éste es un completo balance dinámico sobre las nuevas transiciones actuales y posibles y los desarrollos jurídicos más significativos a nivel transnacional en el tema del aborto, y da cuenta del nuevo desarrollo conceptual que concibe la idea de que no sólo la sanción penal, sino también la amenaza de la sanción penal, ponen en riesgo …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

Memorandum Re: Health Canada's 'Draft Guidance' On Section 21.1(3)(C) Of The Food And Drugs Act, Matthew Herder, Trudo Lemmens

Reports & Public Policy Documents

In 2014 Parliament enacted a number of amendments to the Food and Drugs Act, R.S.C. 1985, c. F-27 [hereinafter the “F&D Act”]. Known as “Vanessa’s Law,” these amendments were intended to enhance the regulation of pharmaceutical drugs and thereby protect Canadians from harm by giving the regulator, Health Canada, new powers to, inter alia, recall drugs, require active post-market surveillance, and improve the transparency of information around pharmaceutical drugs. Vanessa’s Law explicitly recognized that “new measures are required to further protect Canadians from the risks related to drugs and medical devices.” (emphasis added) (Bill C-17, An Act to Amend the …

House Of Commons’ Standing Committee On Health: Development Of A National Pharmacare Program, Matthew Herder

Reports & Public Policy Documents

Canada should implement national pharmacare consistent with the principles outlined in the Pharmacare 2020 report. (Morgan et al. 2015a) The best evidence we have shows that national pharmacare will save approximately $7 billion and — more importantly — hundreds of lives each year. (Morgan et al. 2015b)

The issue, then, is not whether to institute national pharmacare, but how. For, even though the need for national pharmacare has been plain since the 1964 Hall Commission, the landscape of medicine and pharmaceuticals has changed dramatically since then.

Of particular note is the pharmaceutical industry’s growing interest in drugs that target relatively …

International Human Rights And The Mistreatment Of Women During Childbirth, Rajat Khosla, Christina Zampas, Joshua P. Vogel, Meghan A. Bohren, Mindy Roseman, Joanna Erdman

Articles, Book Chapters, & Popular Press

International human rights bodies have played a critical role in codifying, setting standards, and monitoring human rights violations in the context of sexual and reproductive health and rights. In recent years, these institutions have developed and applied human rights standards in the more particular context of maternal mortality and morbidity, and have increasingly recognized a critical human rights issue in the provision and experience of care during and after pregnancy, including during childbirth. However, the international human rights standards on mistreatment during facility-based childbirth remain, in an early stage of development, focused largely on a discrete subset of experiences, such …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

‘And Miles To Go Before I Sleep’: The Future Of End Of Life Law And Policy In Canada, Jocelyn Downie

Articles, Book Chapters, & Popular Press

This paper reviews the legal status of a number of end-of-life law and policy issues that have, to date, been overshadowed by debates about medical assistance in dying. It suggests that law reform is needed in relation to palliative sedation without artificial hydration and nutrition, advance directives for the withholding and withdrawal of oral hydration and nutrition, unilateral withholding and withdrawal of potentially life-sustaining treatment, and the determination of death. To leave the law in its current uncertain state is to leave patients vulnerable to having no access to interventions that they want or, at the other extreme, being forced …

Agonizing Identity In Mental Health Law And Policy (Part I), Sheila Wildeman

Articles, Book Chapters, & Popular Press

In this two-part paper, the author explores the significance of identity in mental health law and policy. In this as in other socio-legal domains, identity functions to consolidate dissent as well as to effect social control. The author asks: where do legal experts stand in relation to the identity categories that run so deep in this area of law and policy? More broadly, she asks: is “mental health” working on us — on the mental health disabled, legal scholars, all of us — in ways that are impairing our capacity for social justice? In the first part of the paper, …

Agonizing Identity In Mental Health Law And Policy (Part Ii): A Political Taxonomy Of Psychiatric Subjectification, Sheila Wildeman

Articles, Book Chapters, & Popular Press

This is the second part of a two-part essay exploring the function of identity in mental health law and policy, or more broadly, the function of identity in the politics of mental health. Part one began with the Foucauldian exhortation to undertake a “critical ontology of ourselves,” and adopted the methodology of autoethnography to explore the construction or constructedness of the author’s identity as an expert working in the area of mental health law and policy. That part concluded with a gesture of resistance to identification on one or the other side of the mental health/ illness divide (the divide …

Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot), Sheila Wildeman

Articles, Book Chapters, & Popular Press

The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie

Articles, Book Chapters, & Popular Press

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …

Medical Certificates Of Death: First Principles And Established Practices Provide Answers To New Questions, Jocelyn Downie, Kacie Oliver

Articles, Book Chapters, & Popular Press

Voluntary euthanasia became legal in Quebec in December 2015,1 although the legislation is currently the subject of litigation. In addition, physician-assisted death will become legal across Canada in February 2016, barring an extension on the deadline being given by the Supreme Court of Canada. There are many questions about how physician-assisted death should be regulated. One as-yet-unanswered question is “Should physician-assisted death be recorded anywhere on the medical certificate of death?” If so, a second question follows: “How should it be recorded — as manner and/or cause?” and if the latter, “Which category of cause: immediate, antecedent or underlying?”

To …

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

The Law Of Stigma, Travel, And The Abortion-Free Island, Joanna Erdman

Articles, Book Chapters, & Popular Press

In 1988, the Supreme Court of Canada decriminalized abortion in R. v. Morgentaler. Almost immediately thereafter, the Maritime province of Prince Edward Island ("P.E.I.") passed a legislative resolution opposing the provision of abortion services on the Island except to save the life of a pregnant woman. P.E.I. is a small pastoral province of rolling hills and ocean coves in the St. Lawrence Gulf, and since 1988, through various regulatory actions, its government has honored this policy promise to keep the Island abortion-free and to preserve its moral landscape.

The same year that abortion was banished from P.E.I., Prince Edward Islanders …