By appointment, right before or after class or whenever I am in my office and not on the phone or in a meeting.

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W. Lahey

Health System Law and Policy, LAWS 2159 Schulich Law School

Fall Term, 2014-2015

Class Times and Location: Fridays from 10:30 – 12:20 in Room 309

Office Hours: By appointment, right before or after class or whenever I am in my office and not on the phone or in a meeting.

Contact Information: Room 414 494-4500 Course Description and Objectives

“When we began to plan Medicare, we pointed out that it would be in two phases. The first phase would be to remove the financial barrier between those giving the service and those receiving it. The second phase would be to reorganize and revamp the delivery system and, of course, that’s the big item. It’s the big thing we haven’t done yet.”

Tommy Douglas, 1982

Traditionally, health law scholarship has emphasized the legal aspects of the physician-patient relationship. Increasingly, lawyers are turning their attention to larger system issues and the complex web of relationships between governments, private insurers, doctors (and other health professionals), hospitals (and other health care delivery organizations), pharmaceutical companies, and patients and communities. Equally, there is an increasing appreciation throughout the health care system of the role of the law (and therefore of lawyers) in the analysis and management of this complex reality and in the development and implementation of policies and in decision-making at virtually all levels of a system extensively defined by the law and by the legal rights and obligations of system participants. This course will focus on the structure and dynamics of Canada’s health care system from a legal perspective. It will situate Canada’s system amongst the variety of approaches taken internationally to the financing, organization and delivery of health care services and to the regulation of the accessibility and quality of those services.

The principle objective of this course is to critically evaluate the direct and indirect role that law plays in the governance of the Canadian health care system, particularly with regard to the debates about access, quality, dependability and affordability that are perennially at the core of the Canadian public policy agenda. This includes the debates around what Tommy Douglas called the reorganization and revamping of the delivery system. Other more general objectives are:

 to survey a range of the more significant health system law and policy issues and to acquire the analytical tools needed to understand and propose solutions to these and related issues;  to develop a better understanding of how a complex field of public policy and the associated system for delivery of public goods and services is impacted by or raises issues for consideration in multiple discreet fields of law – in other words, to give students a chance to reverse their perspective in studying the dynamic interaction between law and that which law regulates;

 to develop an understanding of how laws, regulations and other systemic policy instruments can shape the structure and functioning of a health care system or the response to questions of policy that effect the efficacy or efficiency of the system;

 to give students an opportunity to think about how law functions as a “tool of governance” in a complex field of public policy in which jurisdiction is divided between the federal and provincial governments and in which serious questions exist as to the practical limits of the


 develop an appreciation for the contribution of other disciplines, such as economics, political science, philosophy, sociology and the health disciplines, to our understanding of health system law and policy; and

 to further develop the research, policy analysis, writing, and presentation skills that are vitally important to effectiveness in the roles that lawyers play as professionals and as citizens in health care policy debates and processes (as well as in debates and processes in other fields of public policy).

In addition, throughout the course, we will be critically evaluating the role of legislatures, administrators and courts as key actors in the evolution of these debates.


 75% of the course grade will be based upon a major paper on an approved topic;

 10% of the course grade will be based upon a class presentation on the topic of the paper that is to be based on your research on your chosen topic. This will be a “Works-in-Progress” presentation in which the emphasis will be on getting suggestions and helpful comments from me and your classmates;

 15% of the course grade will be based on your general participation and contribution to our class discussions on assigned readings, including: (a) your contribution in the discussion that takes place following paper topic presentations; and (b) your contribution to the “mini-symposium” to be held in the last class.

Graduate students are evaluated on the basis of a 100% paper. Major Paper Requirements


Each student must submit a choice of paper topic for approval by the end of class on Monday, October 3. A list of example topics is attached, but you should feel free to propose your own topics and to talk to me about options not on the list. The list will nevertheless hopefully indicate the breadth of choice that is available to you in this course. However, all the usual limitations apply as to the need for a topic that is feasible given time constraints, available research materials, and student and instructor preparedness for the topic.

I would be very happy to meet with anyone to talk about what they are interested in that might fall within the broad parameters of this course and what specific paper topic they might tackle within that area of interest. Please contact me or come to see me if you would like to take me up on this. Due Date

The paper is due on or before 12:00 noon the last day of exams, i.e. Friday, December 19. They are to be submitted, in all cases, to the receptionist on the second floor and not to me in person or left at my office. In addition, all students are required to send me an electronic version of the paper that they submit in hard copy to the reception office.

Review of Outlines/Drafts

Students may submit an outline and bibliography, or a draft of their paper, or both, for my review and comment before submission of their final paper. I strongly urge all students to take me up on this.


on your paper. I am not likely to be able to provide very much or any feedback on drafts that are provided to me very close to the due date for the final paper.


The major paper must be at least 25 pages, but no more than 35 pages, excluding endnotes. Please use endnotes rather than footnotes. The paper must be double-spaced, with standard margins (between 1" and 1½”). Please use 12 point font to ensure standardization.

Papers are to be referenced in accordance with the McGill Guide on Legal Citation. They are to include a bibliography.

Evaluative Criteria

Please review the criteria for the evaluation of major papers found in the Law School Calendar. I am very strongly guided by these criteria in the evaluation of papers and so a review of these pages of the Calendar will give you a good idea of my expectations. In particular, students should keep in mind that the paper is a “major” research paper and that thoroughness of research is therefore very important to the evaluation of submitted papers. Students should also expect heavy emphasis in grading on the extent and quality of analytical content - papers that are merely or largely descriptive will not be as favourably evaluated as papers that are more analytical. This needs to be kept in mind throughout the paper writing process, including in the selection of a topic that is amendable to meaningful analysis, given student background and available research materials.

Course Readings

The following is a schedule of topics that we will address, with the corresponding readings indicated. There may be some change in the readings, but such changes should be only of marginal significance.

Week 1 [Friday, September 5]: Introduction to the Course

Introduction to Health Systems and to Health Systems Law Week 2 [Friday, September 12]: The Objectives of Health Systems Governance

 Reading - Course Materials, pp. 3-9, including pp. 1-30 of the WHO’s Framework for Action.

Week 3 [Friday, September 19]: The Nature of State Responsibilities – International Law  Reading - Course Materials, pp. 10-26.

Week 4 [Friday, September 26]: The Single Payer System

 Reading - Course Materials, pp. 27-48. Please listen to the Tommy Douglas YouTube speech, for which the link is at page 29, and read the excerpt from the decision of the trial judge in the Chaoulli case, for which links are given at page 43.

Week 5 [Friday, October 3]: Canadian Health Care Federalism  Reading - Course Materials, pp. 49-81.

Week 6 [Friday, October 10]: Health Care Governance and the Administrative State, Part I  Reading -Course Materials, pp. 82-109.


 Reading - Course Materials, pp. 109-144.

Week 8 [Friday, October 24]: Health Care Governance and Positive Rights to and in Health Care, Part I

 Reading - Course Materials, pp. 145-178.

Week 9 [Friday, October 31]: Health Care Governance and Positive Rights to and in Health Care, Part II

 Reading - Course Materials, pp. 178-205  Work-in-progress presentations begin.

Week 10 [Friday, November 7] Role of Regulation in Health System Governance: The English Example, Part I

 Reading - Course Materials, pp. 206-229.  Work-in-progress presentations continue.

Week 11 [Friday, November 14]: The Role of Regulation in Health System Governance: The English Example, Part II

 Reading - Course materials, pp. 229-251.  Work-in-progress presentations continue.

Week 12 [Friday, November 21]: Remaining work-in-progress presentations.

Week 13 [Friday, November 28]: “Mini Symposium” on a health system law and policy question such as, “Can Canada learn anything from England’s approach to health system governance and if so, what?”. ---

Health System Law and Policy - Some Possible Paper Topics

1. Analysis and critique of the creation of quality councils across Canada;

2. Analysis and critique of the health reform agenda of the McGuinty government, focusing on the changes his government made to the legislative framework of the health care system;

3. Legal aspects of patient safety, perhaps focusing on recent legislative, institutional or regulatory changes in Canada or another country and/or a comparison between Canada and another country on the legal causes and responses to the governance emphasis on patient safety;

4. Implications for law of Cdn. Public Inquiries into patient safety failures (NB; Nfld; Ontario; Manitoba, etc.) and response to those inquiries;

5. Comparison of “patient safety law” in Canada and another country;

6. Restructuring of health authorities in various Canadian provinces, including Nova Scotia (the move towards centralization of devolved responsibility for sub-provincial health system governance);

7. Analysis and critique of Ontario’s LHIN model of health system governance;

8. Legislative limits on collective bargaining in the health care system (perhaps in light of recent NS legislation);


10. The problem of jurisdictional fragmentation as it affects aboriginal health and the attempts that have been made or the recommendations that have been made (or could be made) to address these problems;

11. Human rights issues in the health care system – for example: adequacy of response to needs of children, elderly people, women, racial minorities, aboriginal Canadians, people living with disabilities; or members of LGBTI communities; the implications of

underlying trends (such as shift to ambulatory care outside of hospitals) on women, elderly persons, people living in poverty, etc.; or the case law on discrimination claims coming from the health care system to human rights commissions and tribunals;

12. A “systems analysis” of mental health legislation, perhaps building upon (and critiquing) the La Forest & Lahey review of Nova Scotia’s Involuntary Psychiatric Treatment Act; 13. Analysis and critique of the report of Alberta’s preferential access inquiry, or of some part


14. U.K.’s greater reliance on regulation to improve quality and safety, perhaps in light of the recent West Staffordshire scandal;

15. Analysis of some other aspect of U.K health system law or of use of law in U.K health policy and health system governance – for example, comparison of British and Canadian approaches to health professions regulation;

16. Analysis of the work of a prominent health law academic who has specialized in or worked extensively in “health system law” – options include Colleen Flood; Martha Jackman; William Sage; Timothy Jost; Gregg Bloch; Christopher Newdick; ACL Davies; Mark Hall; and Michelle Mello, as well as many others;

17. The role of and need for accountability in health system governance and of law in accountability;

18. Role of the Ombudsman in health system governance (major investigations have been conducted in B.C.; Alberta; Saskatchewan; Ontario and Quebec) – perhaps in comparison to role of similar institutions in other countries, like New Zealand;

19. Federalism and Canadian health care (perhaps with particular focus on the spending power; a particular area of health policy, such as public health or health care financing and management; or on the broader role of the federal government);

20. Analysis and critique of the success (?) and failure of the health accords as a method of national health system governance;

21. Analysis and critique of the health reform initiative of the Council of the Federation (an organization of Canada’s Premiers and Territorial Leaders which has said it must “fill the void” left by the federal government’s abandonment of policy leadership role in health care); 22. Analysis of the creation and demise of the Health Council of Canada as an example of Canada’s experimentation with “soft” regulation in intergovernmental relations in health care;

23. Comparative study of the spending power in US, Can., Australia; 24. Comparative study of some other aspect of health care federalism;

25. Comparison of the federal aspect of Canadian and Australian health system governance; 26. EU health law (for example, impact of EU law on European health law);

27. Justiciability in health care system litigation;

28. Litigation on the right to health/health care (detailed study of another country; comparison between Canada and another country, etc.);

29. Comparison of Canadian jurisprudence on waiting times/public funding issues to jurisprudence from another country of jurisdiction, such as England, European Union, South Africa, U.S., India, etc.)

30. Emergence and evolution of international or “global” health law (with emphasis on its relevance to health system governance);

31. Quebec’s response to Chaoulli (or comparison of provincial policy and law on private medicine since Chaoulli);

32. Analysis of recent Canadian legislation that is of interest from a system perspective. Examples include: the Alberta Health Act (enacted in November or 2010 but not proclaimed); the Regulated Health Professions Network Act (enacted in NS in 2012 and proclaimed in 2013); the Excellent Health Care for All Act (adopted in Ontario in 2010); 33. Meaning of equality in Medicare and in constitutional equality as defined by the Supreme

Court of Canada (or analysis of post Auton jurisprudence or critique of Auton); 34. What does “medically necessary” mean and who should decide?


35. An analysis of the “Ontario model” of health professional regulation. Options include: how it differs in application between Ontario, Alberta and British Columbia (and now Manitoba); how it has been developed in any one of these provinces (Ontario may be the best choice since it is the province where most development has taken place); how the Ontario model (either as applied in Ontario or as applied in all of the provinces that have adopted it) compares to the similar but distinct Quebec model (which predates the Ontario model); or comparison of the Ontario model to the more traditional model still relied on in (for example) Nova Scotia;

36. The clinical autonomy of physicians – its importance and implications for health system governance and options for (a) protecting it; (b) reducing or controlling it; or (c) guiding and directing it to achieve health system objectives;

37. Role of tort law as barrier to better health system governance or as possible enabler of improved health system governance (focus might be on tort law and clinical practice guidelines or compliance with other kinds of “best practices”);

38. Relationship between health system governance and the law of informed consent – health system governance through the lens of the law of informed consent;

39. The concept that Canadian health care suffers from a “paradigm freeze” from the perspective of the status of the Canada Health Act as an “iconic” statute;

40. Obamacare (focusing on the Affordable Health Care Act): either to consider lessons or implications for Canada or to critique it from the perspective of health system dynamics and justice perspectives;

41. Detailed analysis of health care policy of another country during a significant period of change either to consider lessons for Canada or to critique it from health systems governance and justice perspectives – options include the National Health Service reform under Tony Blair or David Cameron or Australia health care reform under John Howard;

42. Applicability to Canada of “medical management” approaches used in the United States (Veteran Affairs; Medicare; in private insurance);

43. The applicability of the professional ethics of the caring professions (or one of them) to the roles played by those professionals within the health care system as policy-makers, as managers, as advocates, or as members of unions or professional associations;

44. How are and should private health care clinics be regulated in Canada (perhaps focusing on the role of colleges of physicians and surgeons as developed in Alberta and is under consideration in Nova Scotia);

45. Legal and policy critique of Canada’s drug approval process, or of Canada’s drug patent laws or of the international impact of drug patent laws as they relate to the functioning or governance of the Canadian health care system or of other health care systems;

46. Impact of international trade law or some other aspect of international governance on health care systems and health in developing countries;

47. Refugees and access to health care (in Canada, in other countries or at the global level); 48. Medical tourism;

49. The implications for health care system governance of some aspect of intellectual property law; and

50. Role of law in the problems Canada faces in primary care and role law could play in addressing those problems (perhaps with comparison to another country that does better in primary care, like UK).