Top health law cases from 2013

Below is a roundup of the top health law cases in Canada from 2013.  Like 2012, the landscape was dominated by cases falling into two categories: (1) issues around the start and end of life, and (2) the interplay between criminal law and public health.  Of the following cases to make this list, it is notable that the majority of these originated in British Columbia.

Attorney General of Canada v. Terri Jean Bedford, Amy Lebovitch and Valerie Scott, 2013 SCC 72: On December 20, 2013, the SCC ruled that three provisions in the Criminal Code, s. 210 (keeping or being found in a bawdy house), s. 212(1)(j) (living on the avails of prostitution), and s. 213(1)(c) (communicating in public for the purpose of prostitution) violate the right to security of the person in section 7 of the Charter.  The declaration of invalidity is suspended for one year to allow Parliament to devise a new approach.

Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309.  On December 16, 2013, the B.C. Supreme Court ruled that the cancellation of a mother-baby-prison program that allowed women prisoners to remain with their newborn babies was unconstitutional as it violated equality rights and the right to security of the person.

R. v. Leia Picard and Canadian Fertility Consulting Ltd. On December 13, 2013, the first prosecution under the Assisted Human Reproduction Act resulted in a conviction after a fertility business and its owner pleaded guilty to purchasing human eggs from egg donors, paying women to act as surrogates, and accepting payment for arranging the services of a surrogate.  The Court imposed a fine of $60,000.

Cuthbertson and Rubenfeld v. Rasouli, 2013 SCC 53. On October 18, 2013, the SCC determined that the withdrawal of life support may constitute treatment requiring consent.

Carter v. Canada (A.G.), 2013 BCCA 435.  On October 10, 2013, the B.C. Court of Appeal overturned the right to physician-assisted suicide finding that it was bound by the SCC decision in Rodriguez.  The SCC has since granted leave to appeal.

Pratten v. British Columbia.  On May 30, 2013, the SCC denied leave to appeal the Pratten decision, leaving the B.C. Court of Appeal decision in the context of anonymous gamete donation to stand for the position that s.7 of the Charter does not include a positive right to “know one’s past”.

Logan v. Hong, 2013 BCCA 249.  On May 27, 2013, the B.C. Court of Appeal addressed whether non-party physicians could be ordered to disclose patient information to facilitate notice to potential class members in a medical product liability class action.  The Court of Appeal found that the disclosure order impermissibly breached doctor-patient confidentiality in circumstances where the high threshold to do so was not justified, and that the case management judge erred in elevating the purposes of the Class Proceedings Act to a level above the fundamental principle of doctor patient confidentiality.

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30.  On May 24, 2013, the SCC upheld the trial judge’s finding of liability against an obstetrician who failed to obtain the plaintiff’s informed consent to a vaginal birth after caesarean section procedure.  The SCC found there was no informed consent because the assessment of risks had been based upon an incorrect assumption.

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