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Midterm

Law 3101A/B Study Guide - Midterm Guide: Sexual Assault, Legal Guardian, Dental Surgery


Department
Law
Course Code
Law 3101A/B
Professor
Robert Solomon
Study Guide
Midterm

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Ch 1: Prelim Issues
Canada has become a more litigious society. Law playing a greater role in healthcare.
Healthcare professionals coming under greater legal scrutiny nowadays as there is the
trend to legalize healthcare. By including law in these institutions we improve the qual of these
institutions. How do we respond to the increasing amount of legislation in healthcare? Budget
of CA medical protective association. à 835 million. Only 90 million paid to ppl injured by docs
and equal paid to lawyers.
Evidenced by more suits against health, counseling and care practitioners, as well as all
other professionals. (4x increase in suits 1976 to 2013. 85x increase in damages + costs._
Health professionals can be called as a party of litigation (can be sued, witness, or
consultant or compliance officer)
Factors Expanding the Role of Law
1) Shift from paternalistic to rights-based notions of health care
*paternalistic: Focus on wellbeing of patient
* rights-based: Focuses on rights and liability of the respective parties.
2) Recognition that all competent patients can make their own health despite the wishes of
their next-of-kin. (Healthcare professionals’ conflict: Confidentiality to patient vs. expectation of
others who believe that they are entitled to make the decision for others e.g family)
3) A cycle of apathy, crisis and panic
4) A proliferation of complex, health privacy laws in ON. (One way for govt to pretend to care?
Enact even more legislation)
5) An expansion of the health rubric.
6) Politicizing of health care: wait times; doctor fees; hospital closings; and lobbying for
causes.
7) Increasing fiscal restraint. (As federal share of health care costs decreased, the provincial
share increased, limiting funding for all other provincial services.)
The Expectations of the Courts
Courts generally supportive of health professionals.

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The current law is wholly compatible with the professional and ethical standards of
health, counselling and care professionals.
CA doesn't expect HC professionals to know the law. Law is not the driving force in this
environment. The law and courts follow.
However, courts expect 2 things:
Be reasonable. Was it in the realm of reasonably treatment? A reasonable person in your
position.
Act in good faith. Putting the legitimate interests of patient first
Canada Health Act
*What is CHA?
- A federal statute.
- Doesn’t guarantee any individual the right to publicly funded HC. It is a deal btwn fed govt
and prov govt in which fed govt will give provinces a certain amnt of money if prov health
insurance plan meets certain criteria.
- CHA is not comprehensive. Only governs/applies to "insured health services" (Physician
services, hospital care services, dental surgery in a hospital ).
- Doesn’t cover pharmaceuticals.
- CHA doesn’t apply to everyone, only to insured persons.
-Health is a matter of provincial jurisdiction
*5 pillars of medicare:
opublic administration;
ocomprehensiveness;
ouniversality;
oportability; and

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oaccessibility.
If the provinces meets these 5 criteria, the prov gets money from fed govt:
1) Public Admin– a nonprofit basis by a public agency appointed or designated by the
provinces. Subject to regular audit.
2)Comprehensiveness – must cover all insured health services. Some specific, some
general eg ‘all physician care’. Prov can choose to fund addn services if it wishes.
3)Universality– insured persons must have equal access. Insured persons are any residents
of the provinces, not RCMP, not prisoners.
4)Portability– cannot impose min waiting period b4 residents become eligible
5) Accessibility – must be provided on uniform terms and basis that does not directly or
indirectly impede on accessibility. (this provision exists more in theory than in reality)
Prohibits the provincial health insurance plans from paying for insured services that are
subject to “extra-billing” or “user fees.”
Federal contribution must be acknowledged.
Part 3: Common Criminal Offences, The Civil Law Process and Selected Tort Actions
NB: The fed govt has const authority over criminal law. An action by the state against the
accused. Up to the police to decide to lay charges, not up to the victim. Its public law that
serves public purposes.
..R vs accused: R- Regina (the Queen)an exercise of coercive state power that serves state
interests not private citizen actions. The crown must proves the absent of consent BARD. The
‘absent of consent is an element of the crime
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