The Rise of Health Care Human Rights Challenges

1. The Rise of Health Care Human Rights Challenges Joan M. Gilmour, BA, LLB, JSD Osgoode Hall Law School York University April 6, 2010

2. Legal Overview 1. Canadian Charter of Rights and Freedoms (part of Constitution of Canada); 2. Ontario Human Rights Code; 3. Accessibility for Ontarians with Disabilities Act (and Accessibility Standards for Customer Service).

3. Cdn. Charter of Rights and Freedoms • Applies to government action; • Hospitals aren’t ‘gov’t’, but carry out specific gov’tal objectives & policy, so Charter applies to this - Eldridge v. B.C. (1999 SCC) • Even if n/a directly, Charter values should inform interpretation of common law; • Consider esp. s.2 (religion), s.7(life, liberty & security of the person) & s.15 (equality rights)

4. Ontario Human Rights Code (OHRC) • Applies to public & private activities in the province; • s.1: goods, services, facilities: rt to equal treatment without discrimination on listed grounds (closed list; includes sex, race, age, disability etc); • s.10: definition of disability = broad; also includes past & presumed; • s.11: prohibits constructive discrimination; only OK if reasonable & bona fide requirement; must show reasonable accommodation to point of undue hardship.

5. Ontario Human Rights Code (con’t) • s.14: affirmative action programs OK; • s.17: ltd exception re disability (if incapable of performing essential duties or requirements); must accommodate to point of undue hardship (ltd. factors to consider); • Has quasi-constitutional status (prevails in conflicts with other prov. legislation).

6. Accesibility for Ontarians with Disabilities Act • Still quite new; explicitly proactive; • Accessibility standards for customer service; • Hospitals and universities both included in broader public service.

7. Application to Health Care, Health Facilities & Health Practitioners Challenges: 1. Vis a vis patient care; 2. Vis a vis health practitioners and staff.

8. Access to Health Care & Practitioners • OHRC applies to health care services (eg. Korn v. Potter; Quesnel v. Ont); including decisions about access to services, accepting patients etc. • Legislative goals = non-discrim, dignity, autonomy, equality, integration etc; • College of Physicians & Surgeons adopted policy reiterating member obligations (#5-08), but human rts. obligations exist without this.

9. Access to Health Care (con’t) • Charter of Rights & Freedoms can apply too (eg. Eldridge v. B.C.: failure to fund sign language interpreters for hearing impaired receiving insured medical services = breach of Charter s.15, failure to provide equal benefit of the law; medical services included essential element of communication); • But benefit must be ‘provided by law’ to found a claim (Auton: no illegal discrim when govt didn’t fund services for autistic children, as not required to do so by law).

10. Scope of Duty to Accommodate to Point of Undue Hardship • Test developed in other contexts (largely, employment - Meiorin, job requirements & gender discrim); must be adapted (as done in Via Rail, transportation & disability discrim). • Onus on respondent to demonstrate accommodation would = undue hardship; consider cost, outside funding if any, health & safety; • In employment, employer does not have duty to alter working conditions in fundamental way (Hydro-Quebec); application to health care? • What about cost considerations? (Eldridge: .0025% of prov. health care budget; Via Rail)

11. Role of Medical Expertise • Will continue to be very important; rely on expert evidence to establish standard of care (eg. Stangret v. Nagji, 2009 OHRTD – MD refusal to Rx meds patient wanted upheld); • But decisions may involve more than medical considerations. How decide then?

12. Futile Treatment • Where does power/authority lie when health care team and hospital conclude life-sustaining trt should be withdrawn as futile, and family disagrees? Is there a breach of Charter rights to security of person or equality? Is this discrim. on basis of disability?

13. Human Rights Challenges by Health Practitioners • Hospitals, health facilities and professional regulators (Siadat v College of Teachers) are bound by human rts legislation & Charter of Rights and Freedoms vis a vis staff & non-employed MDs too; • They also owe obligations to ensure patient safety and quality of care; • Can be conflict in balancing the two, esp. against traditional “shame & blame” backdrop associated with lawsuits, professional regulation & employment law, and exclusion / marginalization of many with disability (eg mental illness, HIV+,physical disability).

14. Patient Safety and Risk • How balance with human rights? How do we understand and react appropriately to risk? Eg. policies about health care workers infected with blood borned pathogens. Or, what types of personal health information can employers require? Or hospitals granting / renewing privileges?

15. Concluding comments • Human rights law and sensibility making new inroads into health system. Can be synergistic, but not always an easy fit as yet. • Clear that law reinforces a significant social commitment to equality and to rights of citizenship. Need to realize in practice.