No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
The construction of health care and the ideology of the private in Canadian constitutional law
Abstract
Healthcare benefits are provided universally to all Canadians through a national healthcare system with provincial differences. A history of the manner in which healthcare issues have been understood in different historical and constitutional periods reveals the ever present inequalities in many aspects of healthcare delivery.
... Section 7 guarantees the right to life, liberty and security of the person and the right not to be deprived of these rights except in accordance with the principles of fundamental justice. Some commentators have advanced the view that section 7 encompasses a form of a right to health care, however, the courts have not yet embraced this position [23,24]. The courts have also expressed reluctance to interpret section 7 so broadly that they would venture into the realm of pure public policy, a realm that is recognized to be the exclusive jurisdiction of elected representatives [25]. ...
This paper explores how the Canadian courts have responded to resource allocation decisions that have impacted on patients. While there have been few Canadian cases, those that exist fall into two categories. In the first part of the paper, we discuss recent cases that fall into the category of traditional negligence cases where a patient has been harmed and is seeking redress from the providers of care. What is emerging is that individual defendants, either physicians or institutions, are raising economic factors in their defence. The issue, we examine in this context is whether economic arguments can be successful in justifying the level of care that was provided and we conclude that, to date, courts have not been receptive to these arguments. The second part of the paper discusses those cases where patients have used legal arguments to try and change a governmental/policy decision, or to seek redress from harm caused by such a decision that has affected their access to care. In this context, patients have used principles of administrative law, constitutional law and tort law with varied degrees of success. We provide an analysis of these cases and conclude that it is difficult for patients to succeed when challenging allocation decisions at the policy level.
This chapter contains section titled:
ResearchGate has not been able to resolve any references for this publication.