4) Liability for injuries caused by involuntary patients

• Wenden v. Trinkha
• Alberta decided case where patient left hospital (was a voluntary patient), some precautions had been taken, the patient’s clothing was kept not near the patient and the car keys were kept somewhere else
• patient left hospital under delusions, drove his car at excessive speed, ramming the plaintiff’s car causing injuries
• Hospital, hospital Staff and Physician were sued
• court found no liability because the action was "not reasonably foreseeable" in that there was no previous pattern of escape and no reason to believe the patient would drive
• hospital and staff were not negligent because supervision under the circumstances was adequate
• Patient found liable (can’t use "not criminally responsible by reason of mental disorder" because that is for criminal trials and this was civil and civil proceedings are interested in compensation)
• person had gone off medications before
• court discussed at length and approved the reasoning in the Tarasoff case (California)
• duty to protect
• can’t breach confidentiality unless ordered by statute
• information is reportable if it comes form the patient themselves and is a serious threat to life, health, and security of someone else THEN duty to protect
• no doctor/patient privilege in Canada - except in Quebec where can refuse to give information in court
• in Wenden v. Trinkha, Court said Tarasoff says there is a duty to protect
• court made the statement but since that was not the circumstances this is not the law in Canada

American cases are useful but not necessary for exams (similarly with death and dying cases)

1) Wrongful Birth

• cases in which parents sue because disabled child should not have come into existence
• saying to physician "but for your negligence" this child with this disability would not have been born

Wrongful Life

• cases where disabled child (or someone acting on their behalf) sues because they should not have been born (come into existence)
• no wrongful life cases have been successful in Canada

Preconception Negligence

• cases where one parent is a carrier of a certain disease e.g. Tay Saches and go to physician for testing for the disease, the test result is false negative (usually the lab has made a mistake)
• if the parent is not told of risk factor and the physician either does know or should know then there is negligence
• if the parent is told that they are a carrier then no liability if conceive and child is born with that disease

Postconception Negligence

• cases where there is a reason to believe that the fetus carries gene causing defect but no one is told
• Arndt v. Smith
• woman got chicken pox while pregnant
• woman asked physician about possible effects on her child
• physician researched possible effects on child but did not tell the woman about possibility of brain damage (although he did tell about other possibilities)
• Court of Appeal applied reasonable person test
• couldn’t decide what a "reasonable" person would have done
• now before the Supreme Court

Wrongful Pregnancy

• cases where there is a healthy but unwanted child
• Cataford v. Moreau (1981, Quebec)
• court said nothing wrong with voluntary sterilization
• tubal ligation did not work leading to the birth of the patient’s 11th child
• sued for damages
• no damages awarded for the child
• damages awarded for pain and suffering during pregnancy and second tubal ligation
• Keely v. Barrasagoski (?spelling?) (Ontario)
• on damages awarded for child rearing

• wrongful life and wrongful pregnancy
• substantial damages awarded
• Borsman was dead, suit was against estate

• would have dealt with new technologies by prohibiting them
• e.g. commercial surrogate motherhood
• cloning of human beings
• did not go through ® have to reintroduce
• Federal Royal Commission on Reproductive Issues recommended the legislation
• Provincial jurisdiction on who is the mother and father (matters of private and local nature)

3) Sterilization

• eugenic
• case in Alberta where person in mental institution was sterilized and told that the operation was to remove her appendix

4) Abortion

• Supreme Court of Canada 1986
• struck down Criminal Code provision where abortion could only legally obtained if consent were given by Therapeutic Abortion Committee
• said that the way the law was practiced violated Section 7 of the Charter because a woman could not represent herself, sometimes there was no committee, and some committees never granted abortions
• doesn’t mean that there cannot be more legislation
• new legislation was tried, passed the House of Commons but did not pass Senate
• MSP requires physicians to state that it is treatment
• no abortion legislation means that can technically abort right up until child is born
• historically law dealt with rights of father when child is not yet born
• Tremblay v. Daigle
• father has no rights

2) Human tissue donation and transplantation -chapter in text is very good

• in B.C. can not donate organs inter vivos (1 live body to another) except for kidney (can donate kidney to whoever, don’t get to designate receiver under law) and lung (no cases)
• Human Tissue Gift Act
• does not cover regenerative tissue
• ova (eggs) are not regenerative
• non-regenerative organs
• can donate if adult and it does not cause donor’s death
• minors can not donate
• argument of psychological benefit used in US to have minors allowed to donate
• post mortem donation
• will have registry in BC Transplant Society
• if person has indicated in writing then that is good enough under Human Tissue Gift Act but in practice, next-of-kin is asked
• hospital is actually breaking the law (if not following patient’s wishes to be a donor) but no one is around to sue
• anyone 19 and older can sign an organ donor card
• donor and potential donor information is confidential in B.C.
• selling of organs and regenerative tissue except blood is prohibited
• if person is under 19 and dies then parents can give consent to donate organs
• death must be diagnosed by 2 physicians independent of transplant team
• no statutory definition of death - it is whatever the most modern definition is in modern medical practice
• Human Tissue Gift Act provides list of persons able to give consent to organ donation
• spouse - legally married
• doesn’t say what happens if have 2 children and they disagree
• other approaches to donation
• European countries opt-out policy, so if don’t file objection with registry, organs are used upon death
• some provinces have made it mandatory to ask person (or next of kin) if interested in donation
• some provinces have duty to consider whether the person would be a good donor and the decision must be documented

3) AIDS - medical, social and legal problem

1. Venereal Disease Act

• AIDS is not a venereal disease
• in B.C. if the disease is transmittable through means other than sexual transmission, it is not a venereal disease (e.g. AIDS and Hepatitis B)

1. Public Health

• Communicable Disease Act
• any reportable communicable disease that if you think someone has the disease (have to have reasonable suspicion, e.g. someone tells you), you have to report it to public health authorities (Medical Health Officer or staff)
• AIDS is a reportable disease
• HIV is NOT a reportable disease (only have to report if suspect AIDS not HIV positive)
• obligation to report applies to every citizen

1. if the person is tested and found positive for the disease, they get a call from the Provincial Lab saying that they are a carrier then

• the Medical Health Officer can order testing
• the Medical Health Officer can order treatment under Section 7 of Health Act
• Section 7 of Health Act says that the Medical Health Officer (MHO) has powers over HIV positive patients because MHO can order treatment if the person carries a reportable disease or an agent causing a reportable disease
• it is difficult to get witnesses to testify that a person is a carrier so that the MHO can bring the person to treatment under Section 7 (of Health Act)
• it is now harder to treat TB because there are now drug resistant strains of TB
• HIV and AIDS is difficult because it is untreatable and there is not a set time for keeping a person in hospital because they are always infectious (danger to others), therefore can’t detain until no longer infectious

• Sweden has created special hospitals for really recalsitive cases where the patients are treated and repeatedly instructed on appropriate behaviour
• there is confidence in education because Public Health legislation and the Criminal Code don’t work
• Criminal Code
• "common nuisance" has been used successfully against persons not complying with orders (i.e. infecting others by not practicing safe sex)
• "criminal negligence causing bodily harm" has been used successfully in 1 Newfoundland case
• Cases
• Ssenyonga and Cuerrier cases where the persons knew of HIV positive status
• in the Cuerrier case a woman actually asked and was told that Cuerrier had had a test and it came back negative
• charged with "aggravated sexual assault" but not convicted because consent was given
• plaintiff argued that it wasn’t informed consent but court said that "informed" belongs in civil law not criminal law
• plaintiff argued fraud that nullified consent but court said no fraud because there had been no fraud in the "nature and quality of the act"
• Criminal Code does not work because by the time a conviction is made, the person is either dead or very close so it is not really a deterrent
• lawsuits have been taken against persons infecting with treatable diseases (e.g. Herpes) but in these cases it is possible to get damages because the person is still alive
• there is no legislation to force person to inform potential partners or to make that person be responsible

• Section 25 of the Freedom of Information Protection of Privacy Act states that if a person employed by a public body knows that there is a risk to the environment, or a group of persons then they must disclose the information
• Canadian Medical Association says it’s ethically defensible to break confidentiality and warn the person at risk

• Saskatchewan case of Peters-Brown vs. Saskatchewan Regional...
• Peters-Brown was a guard in a correctional facility
• a list of patients with communicable disease was made by a hospital and the list ended up posted in the coffee room at the correctional facility
• court said that the list should have been secure in a computer (not on a paper available for public viewing and photocopying)
• court said that there is nothing wrong with general knowledge in a hospital of persons with communicable diseases
• court said there is something wrong with putting the list of persons with communicable diseases where anyone could see and/or copy the list
• in B.C. only people actually working with the patient need to know
• Need to know if person is at risk
• Pittman Estate v. Bain
• Pittman estate sued because the wife of an HIV positive patient became infected because the husband didn’t know he was infected
• Red Cross found liable because they should have known that a regular donor was HIV positive
• Hospital found liable because they took time notifying physician
• Physician found liable because didn’t warn patient because patient told physician that he and his wife were not having sex
• B.C. Human Rights Act and Charter
• discrimination is illegal on basis of sexual orientation or physical disability therefore dentist can’t refuse to treat because potential patient is HIV positive