i OVERVIEW

Canada is a federated country comprising 10 provinces and three territories,2 populated by over 36 million people.3 Under a 'separation of powers' concept, Canada's Constitution allocates responsibility for various matters between the federal government of Canada on the one hand, and the provincial governments on the other. Thus, while the government of Canada is responsible for the delivery of healthcare to a subset of Canada's population,4 generally, the regulation and funding of healthcare is within the provincial jurisdiction.

Regulating the delivery of healthcare is a significant function of our provincial governments. This fact is not surprising, given that the delivery of healthcare is, year in and year out, among the issues of greatest import to Canada's populace, and given that it was the subject of between 34 (Quebec) and 43 (Ontario) per cent of the provincial governments' budgets in 2017.5 Provincial legislatures pass laws relating to, among others: healthcare delivery; health protection and promotion; the governance and operation of facilities in which healthcare is delivered; the regulation of healthcare professionals; healthcare privacy, procurement, accountability and transparency; and the means by which physicians may be compensated for the provision of their services.

ii THE HEALTHCARE ECONOMY

i General

The Canada Health Act is a federal statute, the single most important statute in defining how healthcare is delivered in Canada – even though, as said above, under the Canadian Constitution, the federal government has no jurisdiction to regulate healthcare. How then did it acquire this influence? Through its purse. The Canada Health Act is a funding statute. In it, the federal government sets out a number of conditions that must be met annually in order for the provinces to be entitled to their full share of the Canada Health Transfer for that year. Aggregating billions of dollars,6 no province can afford not to be in compliance.

ii The role of health insurance

To meet the conditions of the Canada Health Act, each province must have a health insurance plan in effect that, among other things, is:

a publicly administered;

b comprehensive;

c universal;

d portable; and

e accessible.

To be accessible, provincial health insurance plans must prohibit extra billing and user charges for medically necessary healthcare services.

While a detailed description of each of these criteria is outside the bounds of this chapter, the result is that each province has its own government-operated health insurance plan that pays for insured health services, meaning medically necessary healthcare services rendered to insured persons. While the provincial plans vary in a number of ways and provide some limited exceptions, for the most part, Canadians receive all medically necessary healthcare through their provincial health insurance system. In fact, all persons other than the provincial health insurance plans – including hospitals and healthcare providers, for example – are prohibited by provincial law from charging Canadians for medically necessary healthcare. Canada is one of only two countries in the world that makes the purchase of supplemental or private healthcare for medically necessary healthcare services illegal.

Although the term 'medically necessary' is not necessarily used in provincial health insurance statutes, it has come to mean any healthcare service a province has agreed to fund in the fee schedule to its health insurance plan statute. Similarly, although for ease we refer in this chapter to 'Canadians' as those who are entitled to the benefits contemplated by the Canada Health Act and the provincial health insurance statutes, technically those entitled to such benefits are 'insured persons'. An insured person is an 'eligible resident' of a province (generally, someone who lives in a province for a specified amount of time per year, whether or not the person is a Canadian citizen, and including landed immigrants).7

iii Funding and payment for specific services

Provincial health insurance statutes prohibit private insurance companies from selling insurance for medically necessary healthcare services delivered to Canadians. Nonetheless, a limited private insurance market exists, including for example:

a dental services (as only dental services delivered in hospital, and dental services provided to certain age groups and those living below specified income levels, are covered by the provincial health insurance plans);

b prescription drugs (as, with limited exceptions including in the case of drugs prescribed to seniors, to those under the age of 25 in Ontario, and to those living below specified income levels, only drugs administered in hospital are covered by the provincial health insurance plans); and

c non-medically necessary services (e.g., most physiotherapy, chiropractic services and home care).

iii PRIMARY / FAMILY MEDICINE, HOSPITALS AND SOCIAL CARE

i Access to and delivery of healthcare services

The desired entry point for healthcare in Canada is the general practitioner or family physician. While, historically, many family physicians practised medicine independently, the low ratio of family physicians to Canada's population and the desire of a better work–life balance among physicians has led to a different organisational structure. Over the past decade or more, family physicians have increasingly come to organise themselves in groups where they practise not just with other physicians, but in many cases also with other allied healthcare providers, such as nurse practitioners.

Nearly all other practising physicians in Canada are specialists (e.g., surgeons, oncologists). Access to patient-facing specialists is generally obtained via referral from a family physician.

It is expected that most patients will have their primary healthcare needs met through their family physician in the family physician's office. However, because not all patients have family physicians, and because family physicians are not always accessible in a timely manner, a large number of Canadians continue to have their primary healthcare needs met through hospital emergency departments or after-hours clinics. Both modes are considered inefficient and expensive. A growing number of hospital-sponsored urgent care centres and telemedicine solutions are emerging to meet patient demands stemming from, among other things, the inaccessibility of their family physician.

Healthcare is delivered in a number of settings:

a private clinics: including the offices of physicians and other specialists;

b surgical centres, or in Ontario, independent health facilities: generally, for specialty day surgeries or diagnostic procedures;

c community health centres: clinics for marginalised or other specific populations;

d community centres: clinics for specialised procedures provided by allied health professionals, such as infusion clinics or for speech pathology, physiotherapy, etc.;

e hospices: for palliative or end-of-life care;

f private homes or seniors homes: where patients receive 'home care', including clinical and non-clinical care, and respite care for family caregivers;

g hospitals: of which there are many types – acute, chronic, tertiary, community, etc.; and

h long-term care (nursing) homes.

It should be noted that because not all healthcare services are medically necessary and thus, not insured services under provincial health insurance plans, services in a number of the above settings may be paid for privately, including by the individuals receiving such services and their private insurers.

ii Electronic Health Record (EHR)

For a number of years, Canada has been developing a national EHR system, through a collaboration of the government of Canada, a federal agency (Canada Health Infoway), provincial governments and other health sector organisations. EHRs are intended to ensure that patient records are readily accessible by healthcare providers across the country and to increase compatibility across different provincial or regional systems.

The national EHR initiative is supplemented by other provincial electronic health record initiatives. For example, provinces have provided support in respect of the conversion of paper-based systems to electronic systems at family physicians' offices and hospital systems, and have also independently developed systems that focus on particular aspects of the health sector, such as chronic disease management.

While the EHR system is developing at local, micro levels, secure connectivity between sites and large-scale application is still on the horizon.

iii Services to support seniors

As Canada's population continues to age, services and programmes to support the health needs and social well-being of seniors continue to be necessary components along the continuum of care. The majority of the provincial governments offer or provide services and programmes to benefit the health and social needs of seniors. For example, home care services and community support services are generally funded, at least in part, by the provinces and aim to keep seniors living within their residences for as long as possible, thereby reducing unnecessary hospital admissions and lengthy hospital stays. Many of the services offered by the provincial governments are provided for or coordinated in partnership with community agencies.

IV THE LICENSING OF HEALTHCARE PROVIDERS AND PROFESSIONALS

i Regulators

Healthcare professions are regulated by profession-specific 'colleges', each of which is a not-for-profit corporation established by profession-specific statutes. In Ontario, for example, there are currently 26 colleges, including the College of Physicians and Surgeons of Ontario, which governs the profession of medicine in the province.

Each college has a Council that manages and administers the college's affairs and functions as the college's Board of Directors. Generally, colleges are funded by the healthcare professionals that comprise their membership, but some receive partial operating funding from the government.

The provincial legislation that is applicable to healthcare professions sets out to protect the public by, among other things, establishing the scope of the practice of the profession and restrictions on who can practice the profession. Colleges are required by such legislation to, among other things, ensure that the public has access to qualified, skilled and competent healthcare professionals. Colleges seek to uphold such obligation by, for example, developing, establishing and maintaining standards of practice, quality assurance programmes, and standards of professional ethics. The profession-specific legislation also generally provides colleges with authority to investigate complaints regarding their members' conduct and to impose disciplinary measures on their members in prescribed circumstances.

ii Institutional healthcare providers

Professionals within institutional healthcare providers

Employers in Canada have vicarious liability for certain of their employees. Thus, healthcare providers are diligent in ensuring that the healthcare professionals they employ are qualified and licensed to practise. Where healthcare providers deliver healthcare services in a hospital, long-term care home or other healthcare institution on a non-employed basis (e.g., physicians and dentists as independent contractors to hospitals), the institution applies the same rigour but to a higher scale, knowing that in most cases it is these non-employed professionals who will be overseeing and directing the care provided by other professionals.

Institutional healthcare providers themselves

With a limited number of exceptions, hospitals in Canada are charitable organisations that are not privately owned. They are not licensed per se, but are classified by the government as to type (e.g., acute, chronic, tertiary, community) and receive funding from their provincial government (or a government intermediary). The funding is based on a number of criteria, including population base, patient composition and fixed-service fees. In some provinces, hospitals are overseen by volunteer boards; in other provinces, they are overseen by a regional authority. Hospitals are not legally limited in the services that they offer, but given that nearly all of their operating revenue comes from the provincial government (or a government intermediary), generally they cannot expand into new service offerings without government support.

Long-term care homes and independent health facilities (which provide insured services) are operated under licence. A large percentage of the long-term care homes and independent health facilities are privately owned, and a market exists for the purchase and sale of such licences. It is noted, however, that long-term care home licences and independent health facility licences cannot be transferred without the consents required by the applicable statute.

Subject to the comments above regarding long-term care homes and independent health facilities, generally, licences are not required to operate private clinics that are not engaged in surgical procedures. However, in some provinces, such as British Columbia, Alberta, Ontario and Quebec, private clinics providing surgical procedures are subject to accreditation or licensure by the College governing the medical profession.

iii Healthcare professionals

As noted above, the requirements for registration or licensure8 as a member of a healthcare profession are set out in the various provincial health profession Acts described in Section IV.i above. In general terms, the registration requirements for healthcare professionals include: (1) having a degree in his or her area of practice from an accredited school, or a degree that is determined to be equivalent by the relevant College; (2) successfully completing certain postgraduate training or education; and (3) passing certain qualifying examinations or assessments. It is also a general registration requirement that an applicant's past and present conduct afford reasonable grounds for the belief that the applicant will practise the profession competently and with integrity.

Healthcare professionals are required to have professional liability insurance, generally as a requirement of registration with a college.

The health profession Acts also often provide a means by which healthcare professionals who are members of colleges in other provinces can have their extra-provincial credentials recognised without having to go through the entire registration process anew.

Some healthcare professions have different classes of registration or certification (e.g., student class, practitioner class), each of which attract distinct qualification requirements. Moreover, different classes of certification may have different terms, conditions and limitations imposed on the certificate of registration, which limit the healthcare professionals' scope of practice (e.g., limitations on ability to provide healthcare independently).

Where the registrar of a college has doubts as to whether an applicant fulfils the registration requirements, or is of the opinion that terms, conditions or limitations should be imposed on a certificate of registration, notice is normally provided to the applicant and the applicant is given an opportunity to make submissions in response to same.

The health profession Acts provide that a member's contravention of a term, condition or limitation imposed on his or her certificate of registration constitutes an act of professional misconduct.

Where a healthcare professional is found by the court to have contravened a health profession Act, he or she may be subject to sanctions established by the applicable health profession Act (e.g., suspension or revocation of the member's certificate of registration, a fine or imprisonment).9 Examples of actions that are likely to contravene health profession Acts include:

a Except in the case of certain limited exceptions, it is an offence to perform a controlled act (i.e., an activity that can cause harm if it is performed by an unqualified person) unless the controlled act is performed by a member authorised by a health profession Act to perform the controlled act, or the performance of the controlled act has been delegated by an authorised person to another person.

b It is also an offence for someone other than a healthcare professional acting within the scope of his or her practice to treat or advise a person where it is reasonably foreseeable that serious bodily harm may result from the treatment or advice.

c It is also an offence to commit an act of professional misconduct.

The health profession Acts also incorporate procedural fairness provisions that give members an opportunity to be heard and challenge decisions regarding their conduct, including through a court process.

V NEGLIGENCE LIABILITY

i Overview

Negligence claims are pursued through proceedings in court. In order to succeed in a claim for negligence, a plaintiff must establish that the defendant owed him or her a duty of care, the defendant breached that duty by falling below the standard of care, the plaintiff suffered damages, there is a causal connection between such damages and the negligence, and the damages were reasonably foreseeable.

It is legally established that healthcare providers owe a duty of care to their patients. The duties owed by healthcare professionals have broadened in scope over time to include, for example, the duty to obtain informed consent. Healthcare professionals are held to the standard of a normal and prudent professional of similar experience, expertise and standing. Damages for negligence may include general damages for pain and suffering, loss of income, expenses incurred as a result of the negligence, and the cost of future care. Close family members may also be entitled to damages for loss of care, guidance and companionship, as well as compensation for services they have provided to the plaintiff. Causation is proved by demonstrating that the injury would not have occurred 'but for' the defendant's negligence on a balance of probabilities.

Healthcare facilities, such as hospitals, can be held directly liable for negligent management or administration of the facility where the negligence causes or contributes to the damages of the plaintiff. For example, a healthcare facility may be found liable for failing to properly train or supervise employees, protect patient confidentiality, or hire competent staff. Healthcare facilities may also be held vicariously liable for the negligence of their employees (which would not normally include physicians, as physicians are typically not employees of the facility, other healthcare professionals, such as registered nurses).

ii Notable cases

R v. John Doe, 2016 FCA 191

Privacy class actions involving healthcare providers are an emerging area. A class action was recently certified on behalf of participants in the Marijuana Medical Access Program (MMAP) after letters were sent by Health Canada to the participants with the programme's name on it (thereby revealing the participants' association with the programme). The class action followed a finding by the Office of the Privacy Commissioner of Canada that Health Canada had violated federal privacy laws. The plaintiffs alleged many causes of action. The Federal Court of Appeal confirmed the Order for certification, but only with respect to the causes of action of negligence and breach of confidence.

As of February 2018, the parties were still waiting for the Federal Court to issue the remaining portion of its decision with respect to certification, following which a notice of certification will be circulated.

Paur (Committee of) v. Providence Health Care, 2017 BCCA 161

In this case, the British Columbia Court of Appeal upheld a finding that the defendant hospital was liable under the Occupiers Liability Act (OLA) for a patient's injuries after the patient, who was being held under the province's Mental Health Act, attempted to commit suicide in a hospital bathroom. Two nurses were also found liable for negligence for delay in attending to the patient. The admitting physician was not held liable, however, as the Court of Appeal accepted the finding of the trial judge that physicians are not required to take into account the design of hospital bathrooms. The decision underscores the need for hospitals to ensure that their facilities and staffing protocols reasonably protect patient safety and limit the risk of suicide.

The Christian Medical and Dental Society of Canada et al v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579

In 2018, the Divisional Court in Ontario upheld the constitutional validity of two policies of the College of Physicians and Surgeons of Ontario (CPSO) requiring physicians who are unwilling to provide elements of care on moral or religious grounds to provide patients requesting that care with an effective referral to another healthcare provider. The crux of this challenge focused on the CPSO's Medical Aid in Dying (MAID) policy, which was adopted by the CPSO after the Supreme Court of Canada struck down the legislation criminalising physician assisted suicide in 2015.

The Divisional Court considered the intersection between the provision of the Canadian Charter of Rights and Freedoms providing for individual health practitioners' freedom of religion on the one hand, and the provision for equal treatment without discrimination based on characteristics such as mental or physical disability on the other hand. The Court concluded that although the policy does infringe on health practitioners' freedom of religion, that infringement is justified because of the paramount importance of ensuring equitable access to healthcare, and because the policy impairs the religious freedom of the healthcare practitioners as little as possible.

The majority of the Supreme Court held that there is no legal requirement for a trier of fact to draw an adverse inference of causation where the defendant's negligence has undermined the plaintiff's ability to prove causation. An adverse inference of causation is not triggered as a matter of law, but rather, is within the discretion of the trial judge. The Supreme Court observed that ordinary rules of causation operate in medical liability cases. In such cases, the defendant is often in a better position to determine causation. The plaintiff is not required to prove causation with medical certainty, but, the Supreme Court held, requiring a trial judge to draw a presumption where the plaintiff has adduced little affirmative evidence is too low of a threshold. The trier of fact may draw an inference of causation, but the nature of the principle is permissive.

VI OWNERSHIP OF HEALTHCARE BUSINESSES

While healthcare in Canada is generally paid for publicly, it is delivered in large part by those in private business, including physicians and operators of private clinics, long-term care homes, and, in Ontario, independent health facilities.

Though some physicians are hospital employees (e.g., radiologists, those working in labs and research areas, and a limited number of hospitalists), most physicians are self-employed or working in partnership with other physicians. Physicians may incorporate medical professional corporations to enter into leases and other non-clinical agreements and their spouses or family members may own a non-controlling percentage of such businesses (provided that the physicians themselves remain liable for the professional services they provide). The same is true for certain other healthcare providers, such as dentists and optometrists. A market exists for the purchase and sale of all such businesses, but control of these professional corporations is limited to other healthcare professionals of the same designation.

Non-professionals may provide services to professional corporations and so may indirectly participate in the business arrangements of such professionals. Private corporations that provide space and other administrative services to healthcare professionals are common. Opportunities exist for purchase and investment in these service corporations. Notwithstanding their private nature, these corporations and the professionals practising within them are required to comply with the provincial laws prohibiting private payment for insured services. Private payment for insured services is at the centre of a high-profile case that originated in British Columbia, Cambie Surgeries Corp v. British Columbia (Medical Services Commission), 2013 BCSC 2066.

Like other provinces, British Columbia prohibits the use of private insurance for insured services and does not allow services provided in private surgical clinics to be billed outside of the public insurance plan. The constitutionality of these restrictions is being challenged at this time by Cambie Surgeries Corp, an owner and operator of two private healthcare facilities in British Columbia. Cambie alleges that prohibitions on extra billing and private insurance violate Canada's Charter of Rights and Freedoms by limiting timely access to medical services for residents. While British Columbia's public insurance legislation does not preclude private clinics or private billing, it prohibits a public/private model such as Cambie's, in which a private clinic engages in extra billing in addition to receiving funding for insured services. While the trial has faced numerous procedurals delays and is, as of June 2018, adjourned, it is anticipated that the decision of the court will be appealed to the Supreme Court of Canada, as the decision could have a significant impact on how healthcare services are delivered and funded in Canada.

VII COMMISSIONING AND PROCUREMENT

Some Canadian healthcare providers (e.g., hospitals and health authorities) are subject to public procurement rules. These rules arise out of national and regional domestic trade agreements; provincial statutes and procurement directives; and the specific policies of each public sector purchaser. Procurement rules are intended to ensure fairness, transparency and accountability in decisions about the use of public funds. They apply to contracts for the purchase of goods or services that meet or exceed certain value thresholds. Generally, these rules require those contracts to be awarded through an open competitive process. They also require public sector purchasers to share material information with prospective bidders at the outset; evaluate bids consistently and only against stated criteria; and publish information about successful bids. Also, new public procurement requirements require provincial governments to designate an impartial administrative or judicial authority to review challenges from bidders or prospective bidders (either in the first instance, or as an appeal body).

VIII MARKETING AND PROMOTION OF SERVICES

Communication with the public about healthcare services is regulated to ensure accuracy and maintain professionalism. Healthcare professionals may advertise for the purpose of providing information relevant to informed decision making. Provincial legislation and Colleges' policies prescribe how professionals can market their services and describe their qualifications and education. Non-compliance may be considered professional misconduct.

Generally, legislation and policies prohibit:

a advertising that is false, misleading, or unprofessional;

b information that cannot be verified;

c claims of superiority, comparisons or guarantees;

d endorsements or testimonials; and

e reference to a specialisation unless certified by an official body.

It is generally acceptable to advertise fees for services that are not publicly funded; however, some policies restrict the use of promotional deals.

The prevalence of social media has raised new issues. The interactive nature of social media raises privacy concerns and the ease of sharing content can cause copyright infringement or plagiarism. Existing regulations apply to all means of communication, including print, oral or electronic. For example, prohibitions on inducements, such as coupons, continue to apply when using platforms such as mobile applications. Many regulatory bodies have developed specific social media use policies.

IX FUTURE OUTLOOK AND NEW OPPORTUNITIES

Given Canada's ageing population, the high percentage of our GDP expended on healthcare, the comparatively poor health outcomes achieved10 and the challenges created by the single- payer healthcare system, it is likely that there will be both micro and macro changes to the healthcare landscape in the years to come. For example, the use of e-health and telemedicine represents a micro change that may create new opportunities. However, currently, legal and structural barriers to e-health and telemedicine exist; for example, no national framework for telemedicine exists.

Canadians today are more easily accessing health information and are continuing to proactively manage their own health, particularly through the use of products they can choose and use on their own, such as natural health products (NHPs). Given the increased interest in these products, Health Canada recently invited stakeholders to comment on its proposed regulatory framework that seeks to modernise the oversight of consumer health products, including NHPs. Following a consultative process from April to June 2017, Health Canada's efforts are currently focused on examining the feedback and finalising the regulatory proposal.

Recently, there has been an increasing focus on transparency about financial relationships within the healthcare system. Interest in such relationships stems from, among other things, the use of public dollars for payments within the healthcare system (e.g., payments from provincial health insurance plans to physicians), and the potential for conflicts of interest to arise where the relationship includes private sector payments to healthcare providers (e.g., payments from drug manufacturers to physicians).

For example, in 2017, Ontario was the first province to introduce legislation requiring public reporting of payments, including those made by the private sector, to specified healthcare organizations and professionals. In particular, once in force, the Health Sector Payment Transparency Act, 2017, will require the medical industry (e.g., pharmaceutical companies, medical device companies) to report annually to the province's Minister of Health and Long-Term Care on 'transfers of value' to prescribed recipients such as physicians (and their professional corporations), hospitals and laboratories. More recently, British Columbia announced upcoming consultations on a 'health-sector transparency program', which would, like the Health Sector Payment Transparency Act, compel the medical industry to report payments to healthcare organisations and professionals.


Footnotes

1 Lynne Golding, David Rosenbaum, Daniel Fabiano and Kim Potter are partners, and Laurie Turner, Zohar Levy and Vanessa Mui are associates, at Fasken Martineau DuMoulin LLP. The authors would like to thank Sophie MacRae (incoming associate), Kathryn Beck and Rosario Cartagena for their assistance with the writing of this chapter.

2 As the distinction between a province and a territory is not important for the purposes of this paper, all will be referred to herein as 'provinces'.

3 Statistic provided by Statistics Canada.

4 The government of Canada provides direct healthcare services to First Nations people living on reserves, Inuit populations, serving members of the Canadian Forces, eligible veterans, inmates in federal penitentiaries and some refugee claimant groups.

5 Statistic provided by the Fraser Institute.

6 In 2018–2019, the provinces will receive, in the aggregate, approximately $38.5 billion as part of the Canada Health Transfer.

7 For example, in order to be an eligible resident in Ontario (i.e., receive health insurance coverage in Ontario), an individual must, among other things, be present in Ontario for 153 days in any 12-month period.

8 Many provinces in Canada are moving away from a licensing model to a registration model with a focus on harm prevention. For the purposes of this chapter, the term 'registration' will be used to refer to both licensing and registration models.

9 For example, in Ontario, in 2017, legislative amendments were introduced to strengthen the penalties for healthcare professionals found to have sexually abused a patient.

10 OECD Health Statistics 2017, released 30 June 2017; Mirror, Mirror 2017: International Comparison Reflects Flaws and Opportunities for Better U.S. Health Care, The Commonwealth Fund, released 14 July 2017.