Colleen M Flood

Colleen M Flood
University of Ottawa · Faculty of Law

Doctorate of Juridical Science

About

95
Publications
15,449
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Introduction
Colleen M. Flood FRSC is a Professor in the University of Ottawa and a University Research Chair in Health Law & Policy. She is inaugural director of the Ottawa Centre for Health Law, Policy and Ethics. From 2000-2015 she was a Professor and Canada Research Chair at the Faculty of Law, University of Toronto. From 2006-2011 she served as a Scientific Director of the Institute for Health Services and Policy Research, one of the Canadian Institutes of Health Research. Her areas of interest include comparative health care systems, regulation of private finance, litigation of health care rights, funding and safety of home care and long-term care, pharmaceutical policy, administrative law, constitutional law.
Additional affiliations
January 2000 - October 2014
University of Toronto
Position
  • Professor and Canada Research Chair

Publications

Publications (95)
Article
This article analyzes whether Canada’s present approach to regulating health-related artificial intelligence (AI) can address relevant safety-related challenges. Focusing primarily on Health Canada’s regulation of medical devices with AI, it examines whether the existing regulatory approach can adequately address general safety concerns as well as...
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Background: Medical innovations offer tremendous hope. Yet similar innovations in governance (law, policy, ethics) are likely necessary if society is to realize medical innovations’ fruits and avoid their pitfalls. As innovations in Artificial Intelligence (AI) advance at a rapid pace, scholars across multiple disciplines are articulating concerns...
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The COVID-19 pandemic has driven home the serious vulnerabilities plaguing Canada's long-term care system. We argue for significant new federal investments tied to clear, enforceable quality standards (particularly around staffing); new investments in home care so that more people can "age in place"; and additional support for informal care provide...
Article
Many Canadians believe that physicians have malpractice insurance via the Canadian Medical Protective Association (CMPA). However, the CMPA is not an insurance company; it is a defence fund for physicians and has no obligation to compensate all claimants. CMPA expenses have increased nearly tenfold in 30 years and although public budgets support th...
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In 2019, a British Columbia (BC) court decided against a Charter challenge, launched by Cambie Surgical Services (a private clinic). Cambie claimed that various laws in BC suppressing a 2-tier system are contrary to the Canadian Charter of Rights and Freedoms and should be overturned. The trial judge carefully weighed the evidence for and against a...
Article
Ontario families are required to provide up-to-date vaccination records as children begin schooling. Exemptions are allowed on both medical and nonmedical (religious or philosophical) grounds. In a recent report, Toronto Public Health (2019) called for an end to nonmedical exemptions - a proposal some allege infringes the Canadian Charter of Rights...
Article
The COVID-19 pandemic has highlighted the challenges governments face in balancing civil liberties against the exigencies of public health amid the chaos of a public health emergency. Current and emerging pandemic response strategies may engage diverse rights grounded in civil liberties, including mobility rights, freedom of assembly, freedom of re...
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The Royal Society of Canada Task Force on COVID-19 was formed in April 2020 to provide evidence-informed perspectives on major societal challenges in response to and recovery from COVID-19. The Task Force established a series of working groups to rapidly develop policy briefings, with the objective of supporting policy makers with evidence to infor...
Chapter
This chapter examines both the power and limitations of litigation as a means of facilitating accountability for the advancement of public health. While almost half of the world’s constitutions now contain a justiciable right to health, the impact of litigation has been mixed. Judicial accountability has, in some cases, advanced state obligations t...
Article
Canada's single-payer healthcare system is at a critical crossroads. A legal challenge underway in British Columbia alleges that legislative restrictions on privately financed care infringe the right to "life, liberty and security" guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms. The greatest challenge for the court will b...
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Canadian medicare: historical reflections, future directions - Volume 13 Special Issue - Colleen M. Flood, Greg Marchildon, Gail Paech
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In September 2016, a case went to trial in British Columbia that seeks to test the constitutionality of provincial laws that (1) ban private health insurance for medically necessary hospital and physician services; (2) ban extra-billing (physicians cannot charge patients more than the public tariff); and (3) require physicians to work solely for th...
Book
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In 2004, the Assisted Human Reproduction Act was passed by the Parliament of Canada. Fully in force by 2007, the act was intended to safeguard the health and safety of Canadians. However, a 2010 Supreme Court of Canada decision ruled that key parts of the act were invalid. Regulating Creation is a collection of essays built around the 2010 ruling....
Article
Scoping the shape of an iceberg: the future of public involvement in heath policy: reflecting on ‘Public involvement policies in health: exploring their conceptual basis’ - Volume 10 Issue 4 - Colleen M. Flood
Article
Since 2011, we’ve worked to create a dialogue between Canada’s journalists and academic health policy experts to enrich the quality and quantity of health policy stories in the Canadian media. We work with a Media Advisory Board made up of journalists and professors of journalism from across the country who let us know what their needs, constraints...
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The Canadian health care system is at a crossroads. Litigation building on the Supreme Court of Canada’s decision in Chaoulli that could lead to the establishment of a parallel private tier is underway in several provinces. For example, in a challenge set to proceed to trial this fall, Dr. Brian Day and six patient plaintiffs are challenging severa...
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This article presents research demonstrating that the right to health plays different roles in different types of health systems. In high-income countries with tax-funded health systems, we usually encounter a lack of an enforceable right to heath. In contrast, rights play a more significant role in social health insurance/managed competition syste...
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This paper is an introductory article to a special issue of the Journal of Law, Medicine, and Ethics on Global Health Challenges and the Role of Law. The issue contains papers that result from an international conference organized by the authors in Toronto in the spring of 2012. In these papers, various Canadian and American health law and health p...
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There is currently an evidentiary gap in the scholarship concerning medical tourism's impact on low- and middle-income destination countries (LMICs). This article reviews relevant evidence that exists and concludes that there are signs of correlation between medical tourism and the expansion of private, technology- intensive health care in LMICs, w...
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A patient charter of rights should achieve greater clarity and awareness of the nature and extent of patients’ rights but also, if well designed, it should help drive improvements in the quality and timeliness of care, improve overall accountability of health care system actors, and reduce costly litigation.1 However, experience demonstrates that i...
Article
As discussed in the Introduction to this volume, since the 1990s we have witnessed a surge of interest in the application of human rights to health and health care issues, including a growth of health rights litigation. But has this marriage of human rights and health care been a happy one? This book has explored the role of health rights in legal,...
Article
In this volume, we explore the power of health care rights in diverse health care systems. Does a right to health care serve to advance greater equity or does it in fact advance the opposite result? Does the recognition of a right to health care help sustain public values (like equality) in systems that are undergoing privatization? Or, to the cont...
Book
Through a comparative global study of countries from all continents representing a diversity of health, legal, political, and economic systems, this book explores the role of health rights to advance greater equality through access to health care. Does pursuing a right to health care promote equality, or does it in fact advance the opposite result?...
Article
Canadian expenditure on pharmaceutical drugs is skyrocketing at a rate which outstrips every other major health care spending category. This is a product of many diverse factors, foremost of which is the glut of ‘me-too' drugs which provide little or no improvement over alternatives, but are often priced significantly higher than existing treatment...
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As increases in health care spending outpace economic growth, governments increasingly face tough choices. One significant cost driver is the influx of new technologies, particularly expensive drug therapies. In response, provincial governments are increasingly scrutinizing the costs and benefits of new drugs and determining that despite some thera...
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Choice is often touted as a means for change within health care systems. Yet 'choice', in this context, takes at least three distinct forms: choice between providers within a publicly funded health care system; choice between competing insurers within a universal plan; and, lastly, choice as between privately financed health care and universal publ...
Article
This article explores Michael Trebilcock's claim that the federal government's present restrictions on direct-to-consumer advertising (DTCA) of prescription drugs should not withstand a Charter challenge and his argument that a less intrusive, more nuanced regulatory regime could be implemented. The author explores the government's challenges in mo...
Article
Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to co...
Article
The 2005 Supreme Court decision of Chaoulli v. Quebec (A.G.) is the most significant Canadian case vis-à-vis health care rights in the last decade. The two litigants were Dr. Chaoulli, a physician originally from France who was frustrated with governmental limits on his ability to practice privately, and George Zeliotis, a sixty-seven-year-old pati...
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The Supreme Court's decision in Chaoulli reflects the growing concern, particularly amongst the middle-class and wealthy, that the public system will not be there when they require it nor will it deliver care in a timely way. It is at the heart of a resulting maelstrom that is causing turbulence in health policy through the adoption of politically-...
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A number of countries, including the U.K., New Zealand, the Netherlands, and the U.S., have attempted to reform their health care systems using internal market or managed competition reform models. These models signal a departure from reliance on passive indemnity payers or insurers and require proactive purchasers to intervene actively and manager...
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On February 5, 2003, the Prime Minister and Premiers of seven provinces signed an agreement, the First Ministers' Accord on Health Care Renewal, outlining the direction of public healthcare in Canada in the near future. The Accord addressed several key issues in healthcare, namely prescription drug coverage, home care, diagnostic services, timeline...
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Publicly funded health care systems are often the subject of heated policy debates. All too often (particularly in Canada), these debates focus on the prohibitive costs, the resultant taxation levels, and the questionable efficiency and outcomes associated with a publicly funded system. Moreover, the institutionalization of the system and the entre...
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While Canadians are generally satisfied with the quality of the health care they receive, many are increasingly concerned about access to health care services and, in particular, about waiting times for treatment. These concerns have been fuelling the growing momentum for health care reform over the past few years. One of the reform possibilities c...
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The integrity of medicare depends on governments having flexibility to respond to the changing dynamics of the health care system. This article concludes that the North American Free Trade Agreement ("NAFTA") has potential to place constraints on the ability of Canadian federal and provincial governments to regulate freely. The health care system i...
Article
Sustainability, quality, accessibility are front and centre questions in Canadian health care. Is it possible to obtain a balance of all three - a holy grail? Key contextual factors help frame this question. Increasingly, the locus of care is shifting out of the realm of medically necessary hospital and physician services for which universal first-...
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No judge of the Canadian Supreme Court in a generation can claim the same level of influence over the development of administrative law as Justice Frank Iacobucci. His influence is particularly visible in the context of the standard of review: the degree of scrutiny a court will employ in reviewing an administrative decision. The standard of review...
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In Chaoulli, a majority of the Canadian Supreme Court struck down a Quebec law that prohibited the purchase of private health insurance for essential hospital and physician services. A majority found it to be in breach of the Quebec Charter of Rights and Freedoms. The court was split 3:3 on whether it was also in breach of the Canadian Charter of R...
Book
The most important issue facing Canadian health care today is access to services. But who decides what services will be publicly funded, and how? The essays in Just Medicare explore the diverse means by which law influences what should and should not be covered by publicly-funded Medicare. Edited by Colleen M. Flood, the collection demonstrates thr...
Article
In a narrow and bitter 4–3 decision, the Supreme Court of Canada in the Chaoulli1 decision struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebec’s Charter of Human Rights and Freedoms. Three of the four judges in the majority also found that the provisions, in light of wait times in the publi...
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In a narrow and contentious 4:3 decision in the appeal case of Chaoulli v. Quebec (Atttorney General), the Supreme Court of Canada has struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebec's Charter of Human Rights and Freedoms. This paper provides critical comment on the reasoning of the Cou...
Article
The collection of essays in this issue illustrates the breadth of knowledge to be gained from examining approaches to legislating and litigating health care rights and experiences across several national jurisdictions. The emphasis is on rights to publicly-funded health care and the struggle to determine a just allocation of public resources in cou...
Article
Access to care has become a key and contentious issue in the Canadian health care system. In this article, I explore the role of Canadian courts in determining rights to access public health insurance (Medicare), beginning with a brief overview of the Canadian system and its distinguishing features, and then moving to discuss challenges to governme...
Article
Claims of"underfunding" notwithstanding, the problems we are experiencing with healthcare in Canada are primarily attributable to a deficiency of governance of our ill-coordinated non-system of health and healthcare services.
Book
Historically, the Supreme Court of Canada has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June 2005. In a narrow four-to-three decision, the Supreme Court struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violat...
Chapter
Chaoulli struck down Quebec’s ban on private health care insurance, a core design feature of Canada’s most cherished social program, Medicare, and could fundamentally reshape health care delivery to tens of millions. Approaching Chaoulli through the lens of Lochner yields a number of critical insights. If we want to understand Chaoulli better, it w...
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The impact of private finance on publicly funded health care systems depends on how the relationship between public and private finance is structured. This essay first reviews the experience in five nations that exemplify different ways of drawing the public/private boundary to address the particular questions raised by each model. This review is t...
Article
In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC's role in determining the boundaries of Medicare is in tension with its role...
Article
In response to what we describe as the "accountability gap" in healthcare, nine provinces have embraced the devolution of management responsibility and authority from central government administrations to regional health authorities. Ontario, Canada's most populous province, is the lone wolf. This commentary focuses on the consequences of Ontario's...
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In this paper, we provide a brief forensic of the SARS crisis in Toronto and analyze the effectiveness of Canada's health care system in response to that crisis. We conclude that it is difficult to draw concrete conclusions about the cause and effect of the SARS epidemic. Nevertheless, there is an obvious governance problem in Canada's system, larg...
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In this paper we outline the mix of public/private funding in six OECD countries: Australia, Canada, the Netherlands, New Zealand, the UK, and the US. We look at the processes by which this mix is determined and the impact of the mix on health outcomes, utilization, spending, and waiting times. In the absence of rationing by price or ability to pay...
Article
The Mazankowski Report is a very important contribution to the debate washing over Canada with regard to the future of its most cherished social program, medicare. While a complete analysis of the report is not possible in this brief comment, several observations and arguments should be made. First, the report's recommendations for a greater role f...
Article
We addressed the question of whether private health care is illegal in Canada by surveying the health insurance legislation of all 10 provinces. Our survey revealed multiple layers of regulation that seem to have as their primary objective preventing the public sector from subsidizing the private sector, as opposed to rendering privately funded pra...
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The story of New Zealand's no-fault accident compensation scheme is one of decline: from the lofty aspiration of its creators to the 1999 reality of a lean system that has managed to regain some of the negative features of a fault-based tort system.
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In both Canada and Japan court challenges are underway to allow a greater role for private payment. This article explains how Canadian courts to date have misunderstood the very different roles private payment (specifically private health insurance) plays across different health care systems. I illustrate this by situating Canada in a typology of h...

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