In our last blog post, we discussed the report of Mr. Justice Gouge on the physician complaint process. The second referral to Mr. Justice Stephen Goudge in March of 2016 by the Ministry of Health and Long Tem Care (the Ministry) was to conduct a review of the civil justice system concerning the management and handling of medical malpractice actions. The Ministry's concern was the ever increasing cost of such litigation and the length of time it was taking to achieve a resolution. Although the delay in receiving compensation was the Ministry's main concern, this delay before closure issue also encompassed actions that were dismissed without compensation being received again after considerable delay.
The report was released just over one year ago. It found that the total number of malpractice actions in Ontario had remained relatively constant since 1990. However, the costs associated with those actions over the years had increased by four to five times what they were in 1990. This increase in cost was related to the defence costs for lawyers and the damage awards paid to resolve the cases. This analysis did not account for inflation. The report was also limited based on the reliance on anecdotal evidence and the absence of any empirical data.
Despite the passage of one year, none of the recommendations have been acted upon by the government. Whether they will be in the future is anyone's guess. However, the present government appears bound to reducing costs wherever it can. The recommendations may appeal to the Ministry shortly or least during their mandate. We will keep following any developments that occur.
For more information about medical malpractice litigation, or if you have other health law related questions, contact the health law litigators at Wise Health Law for forward-thinking, expert advice about health law matters and related litigation. We have significant trial and appellate experience and are passionate about helping health professionalsand health care organizations understand and protect their legal rights. Contact us online or at 416-915-4234for a consultation.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.