Academic journal article Health Law Review

Systemic Accountability through Tort Claims against Health Regions

Academic journal article Health Law Review

Systemic Accountability through Tort Claims against Health Regions

Article excerpt

Introduction

The role of systemic actors in the health sector has changed dramatically since the inception of Medicare, with provincial ministries of health and health regions now significantly involved in the organization, coordination and management of health services. These evolving responsibilities have prompted increased public expectations and calls for greater accountability. These concerns with a lack of accountability at the systemic level are exemplified by a number of recent legal cases seeking redress for ministry of health decisions. Canadian courts have not been receptive to these claims, emphasizing the fact that governmental health sector decision making is an exercise in balancing scarce resources in the broader public interest, rather than examining its relationship with particular plaintiffs or groups of plaintiffs. Prospective plaintiffs may have greater success shifting their attention to filing claims against health regions.

The Changing Role of Systemic Actors in the Health Sector

Historically, physicians were perceived as solely responsible for the care received by patients, while systemic actors such as hospitals and government had limited involvement. Hospitals merely provided a facility for doctors to practice in and staff to assist them. However, medical care has fundamentally changed, becoming more complex, technologically advanced and specialized. Hospitals responded to these developments by taking on a greater role in organizing and managing the delivery of services, and coordinating their diverse staff and programs.

Similarly, government's role in the health sector was restricted to the provision of public health services and limited funding of care for the destitute. This role also underwent a dramatic transformation, culminating in the government having three functions within the health care system--insurer, policy maker and manager. With the inception of Medicare, government's involvement expanded to include a significant financial commitment; however, it remained largely a passive payer. Government's responsibilities further evolved throughout the 1980s and 1990s to include a role in organization and policy-making. The functions of government have since extended to an active role in the management of the health care system. Government not only carries out its policy making and managerial functions directly through the ministries of health but, as discussed below, indirectly through entities it has devolved authority to.

These changes in the role of systemic actors in the health sector have resulted in increased public calls for their accountability. Brinkerhoff views the size and scope of health care bureaucracies as one of the key catalysts for accountability concerns, (1) both of which have continued to increase with the expansion of government's role in the health sector. (2) Although there are a number of means of addressing deficits in accountability, (3) there is a growing body of literature which suggests that the law has a role to play. For example, Longley views the law as "a means of promoting and ensuring accountability and legitimacy in public decision-making" (4) and Brinkerhoff argues that "legal and regulatory sanctions are at the core of enforcing accountability." (5) To this end, plaintiffs are increasingly turning to the courts to hold government accountable.

Health Sector Tort Claims

Canadian courts have exhibited a reluctance to impose tort liability for government's health sector decisions. For the most part, courts have not allowed these cases to reach trial, either striking the claims for want of a cause of action, or refusing to certify class actions. For example, the Ontario Court of Appeal recently struck claims based on the West Nile Virus (WNV) (6) and Severe Acute Respiratory Syndrome (SARS) outbreaks. (7) In the former case, the plaintiff's main allegations were that the government failed to take adequate steps to deal with WNV, and failed to implement a plan it had developed to address the disease. …

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