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August 23, 2010

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Law Times • augusT 23, 2010 FOCUS Cases affirm advances in health law BY DARYL-LYNN CARLSON For Law Times I f there's any indication that health law is becoming an increasingly progressive fi eld, one could point to a cou- ple of recent decisions delivered by Ontario courts. In those decisions, the courts addressed and provided guidance in areas that had previously been perceived to be unresolved by law- yers whose practice focuses exclu- sively on health law matters. "Health law is certainly be- coming a niche area, and I think the courts are recognizing that," says Mary Jane Dykeman of Dykeman Dewhirst O'Brien LLP in Toronto. "Even in the law schools, I've noticed that they are off ering more courses in specifi c areas of health law, which was not the case when I went to school." Earlier in her career, Dyke- man worked as counsel for the Ontario Psychiatric Patient Ad- vocate Offi ce. She points to the Ontario Superior Court of Jus- tice's decision in Bon Hillier v. Milojevic, which fi nally resolved the question of the appointment of and subsequent payment for an amicus curiae representing pa- tients through the Consent and Capacity Board, where there have been ongoing concerns about the issue for years. In this case, the question of whether an amicus representa- tive could be funded, and how, was resolved. Th e appellant, Isaac Bon Hillier, had suff ered a head injury before moving to Ontario from British Columbia. Once he arrived here, the board found, through a capacity as- sessor, that he was incapable of managing his property. Bon Hillier hadn't made an ap- plication through Legal Aid On- tario, and in previous situations regarding amicus representation, LAO had taken the position that it wasn't obligated by statue to fund an amicus, only a lawyer. Under Ontario's Rules of Civil Procedure, applicants deemed in- capable weren't permitted to re- ceive funding without representa- tion by some means of a guardian who could advance their position in a meaningful way or at least in- struct counsel how to do so. Concern over board's 'proliferating' role Continued from page 9 provides access to drugs not available in Canada to patients with serious or life-threatening conditions and for whom con- ventional therapies have failed or are unsuitable or unavailable. In a paper Daley authored with colleague Penny Bonner, the pair suggest that "innovative manu- facturers fi nd it troubling that case law now allows the [board] to exert price control in certain circumstances, such as when a manufacturer is not aff orded the protection of a patent or has not received a market authorization to sell in Canada." As a result, Da- ley fears the "board's ever prolif- erating jurisdiction and increased enforcement activities" will have detrimental impacts on access to See you Sept. 7 Law Times will not publish in print next week. We will return on Sept. 7, 2010. Meanwhile, enjoy fresh content on our web site at: www.lawtimesnews.com LT0823 www.lawtimesnews.com For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. patented medicines by Canadian patients. Th ey conclude that ultimately, the prospect of innovative drug manufacturers choosing Canada as their primary market amid all the regulatory obstacles may be bleak. LT In a review of the case for the Ontario Bar Associa- tion's newsletter last spring, Joaquin Zuckerberg, counsel for the board and an adjunct professor at the University of Toronto Faculty of Law, ac- knowledged the decision's sig- nifi cance. "After determining that an amicus curiae should be ap- pointed, the court held that it had the authority to fi x a rate of remuneration," he writes. "It reached this conclusion on the basis of the jurisprudence and a review of Rule 52.03 of the Rules of Civil Procedure. Th e court recognized that it did not have access to the funds to pay an amicus and refused to make an order requiring the [attorney general] to pay the rate it fi xed, which was higher than the legal aid rate." He continues: "However, in an extraordinary step, the court, in the exercise of its parens patriae jurisdiction, ordered that, in the event that confi rmation was not received from the amicus that he had entered into an arrangement with the [attorney general] for payment of his fees in accordance with the terms of the court's de- cision, there should be a stay of the fi nding of incapacity made by the capacity assessor and of the statutory guardianship of the Public Guardian and Trustee (PGT) created as a result of that fi nding." He notes further that the "stay required the PGT to turn over to the appellant control over all of his assets under its management and had the eff ect of overturn- ing the decision of the capacity assessor and the [board]." claimed the physicians "were negligent in that they did not exercise reasonable standard of care." She also alleged the phy- sicians and hospital failed to follow procedures under On- tario's Mental Health Act and violated her rights under the Charter of Rights and Free- doms. Th e case tested the need for 'Health law is certainly becoming a niche area, and I think the courts are recogniz- ing that,' says Mary Jane Dykeman. Zuckerberg emphasizes the signifi cance of the decision in con- cluding that "practitioners in other areas of the law should take note of this case, which has relevance beyond the scope of [board] ap- peals. Bon Hillier may be equally applicable to vulnerable self-rep- resented individuals appealing decisions from other administra- tive tribunals for which the as- sistance of an amicus curiae may be sought." Th e matter of Vandergiessen v. Mississauga Hospital has also stirred interest by lawyers who practise health law. In that case, the plaintiff ap- pealed the decision of a lower court to dismiss her claim against a hospital and its physicians. Th e plaintiff , alleging she had been involuntarily committed to the psychiatric wing of the hos- pital more than 12 years earlier, a plaintiff to introduce expert evidence in order to meet evi- dence standards. Th e Court of Appeal sided with the appellant, allowing the appeal with a $10,000 costs award and concluding that the lower court erred in granting a summary judg- ment to the physicians and hospital on the basis that the plaintiff had failed to provide an expert opinion regarding her care. Lisa Corrente, a partner at Torkin Manes LLP and chair- woman of the OBA's health law section, followed the case closely and affi rms its importance. "What the court said was while the plaintiff might now be able to establish all of the elements of her claim without expert opinion, cer- tain allegations that were advanced by her against the physicians in the hospital involved more than just a typical allegation of malpractice, so the Court of Appeal was reluc- tant to dismiss the action without hearing its merits," says Corrente. "What lawyers can take from this is that it's not essential in every case against a doctor to have medical evidence in order to establish the merits of the case." Th ere hasn't yet been a date set for the appeal. LT CaseAlert - Health Law A monthly email alert to keep you up to date in health law. Subscribers receive an e-mail bulletin of case summaries of recent court decisions in the health law area. The summaries are arranged by topic and are linked to the case digest and the full-text decision in pdf format. Visit canadalawbook.ca to sign up for our no-obligation free trial service. Annual subscription $210 • P/C 0546700999 • Each additional recipient $18 • P/C 0546710999 Health Law Canadian Pharmacy Law Marie Berry This resource explains the underlying principles and doctrines of law within the legal system as they apply to the practice of pharmacy. It includes all of the latest case law, jurisdictional comparison charts of practice in pharmacy and much more. Looseleaf (3 Volumes) • $254 • Subscription updates invoiced as issued (2/yr) • P/C 0971030000 Vol. 1 ISBN 0-88804-192-6 • Vol. 2 ISBN 0-88804-249-3 • Vol. 3 ISBN 978-088804-472-3 A Complete Guide to the Regulated Health Professions Act Richard Steinecke This unrivalled looseleaf is easy to follow and includes examples, illustrations, flow charts, forms, checklists and precedents providing the big picture surrounding Ontario's amendments to the RHPA made by the (RHPA). This publication has been updated and revised to reflect fundamental . Looseleaf • $225 • Subscription updates invoiced as issued (1/yr) • P/C 0434030000 • ISBN 0-88804-179-9 Health titles PAGE 11 Health Systems Improvements Act, 2007 Regulated Health Professions Act

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