By Michael Watts and David Solomon
2015 has been yet another year marked by significant legal developments affecting the Canadian healthcare sector and, in particular, public hospitals in Ontario. This article provides a brief summary of some of these developments and the corresponding steps hospitals need to take to ensure they remain compliant with applicable laws and policies.
Significant Legal Decisions
In Carter v Canada (Attorney General), 2015 SCC 5 (decided February 6, 2015) the Supreme Court unanimously declared the Criminal Code prohibitions on assisted suicide invalid to the extent that they prohibit physician-assisted death for a competent adult who clearly consents to the termination of life, and who has a grievous and irremediable medical condition that causes him or her enduring and intolerable suffering. Notably, the foregoing test does not require that a patient be terminal.
The decision has major implications for end-of-life care, informed consent, and conscientious objectors, particularly where a patient is not terminal. Although the Court suspended the declaration of invalidity for 12 months to allow colleges, Parliament, and the provincial legislatures to craft a responsive legislative and regulatory framework, it is unclear whether any such framework will be in place by February 6, 2016 (or whether the Court will extend the declaration). It has been over 25 years, for example, since the Court struck down the Criminal Code prohibitions on abortion in R v Morgentaler,  1 SCR 30, and there is still no legislation in Ontario governing abortions.
Accordingly, hospitals need to be prepared to provide access to physician-assisted death (either by onsite service or by offsite referral) as well as to asses difficult cases against the test in Carter. For an in-depth analysis of the Carter decision, please visit our Health Industry Group webpage at Osler.com.
In Hopkins v Kay, 2015 ONCA 12, the Ontario Court of Appeal ruled that a hospital can be held liable for failing to prevent unauthorized access to personal health information by an employee, even in circumstances where the Information and Privacy Commissioner of Ontario has closed his investigation. The Court rejected the argument that the Personal Health Information Protection Act, 2004 (PHIPA) is a complete code governing the liability of health information custodians.
Hopkins highlights the need for hospitals to put in place clear policies and procedures, training and compliance programs, reporting mechanisms, audit structures and discipline mechanisms governing access to personal health information. In this regard, hospitals can take comfort that a recent labour arbitration ruling upheld employee termination for egregious breaches of PHIPA and hospital privacy polices (see Ontario Nurses Association v Norfolk General Hospital,  OLAA No 353). For an in-depth analysis of the Hopkins decision and the PHIPA regime, please refer to Osler’s article entitled “Ontario Court of Appeal Allows Privacy Class Action to Proceed Against Hospital” available at Osler.com.
Significant Legislative Developments
In the aftermath of Hopkins, the Minister of Health and Long-Term Care (MOHLTC) announced the introduction of the Health Information Protection Act, 2015 (HIPA), which amends PHIPA and other statutes. Among other things, the amendments make it mandatory for health information custodians to report privacy breaches and doubles the maximum fines for offences under PHIPA.
In addition, HIPA repeals and replaces the Quality of Care Information Protection Act, 2004 (QCIPA) with a 2015 version which, among other things, redefines “quality of care information” to allow for greater protection of the deliberations and records of a quality of care committee while at the same time facilitating greater disclosure of information regarding critical incidents to patients. QCIPA 2015 also provides that disclosure of personal health information to a quality of care committee is limited to no more information “than is reasonably necessary for the purpose of the disclosure.” Accordingly, public hospitals will need to update their policies regarding privacy breach management and critical incident/quality of care reviews.
Finally, in July 2015, the MOHLTC announced it was taking steps toward appointing its first Patient Ombudsman to help people who have an unresolved complaint about their care at a public health sector organization (who it anticipated would be appointed by August 31, 2015). Once appointed, the enabling provisions of the Excellent Care for All Act will be proclaimed into law. These provisions accord sweeping powers to the Patient Ombudsman to investigate and report on complaints from patients relating to care provided by a public health sector organization.
Importantly, however, the Patient Ombudsman will not have the power to issue orders or investigate private care facilities such as retirement homes. The MOHLTC has indicated that “as of Sept. 1, 2015,” all public hospitals are required to have a staff member responsible for overseeing the patient relations process as well as other measures to improve patient relations, particularly to respond to inquiries from the Patient Ombudsman.
Michael Watts is a Partner and David Solomon is an Associate in the Toronto office of law firm Osler, Hoskin & Harcourt LLP.