Government Tort Liability for Negligence in the Health Sector: A Critique of the Canadian Jurisprudence

Abstract

Historically, physicians bore sole responsibility for the quality of health care services, while hospitals merely furnished a location to practice medicine and nursing staff to assist in this endeavor. From Canada’s inception through the first half of the twentieth century, the role of provincial governments in the health sector was restricted to the provision of limited funding for specific health services and low-income populations. However, beginning with the implementation of Medicare, the government’s role in the health sector underwent a dramatic expansion, motivated by escalating health care costs, concerns with the quality of health care services, the growing complexity of medical care, and rising public expectations. The government’s expanded health sector role led to calls for accountability, as evidenced by an increasing number of legal claims against provincial ministries of health. In this paper, I explore the relationship between tort liability and governmental health sector accountability.

The health sector claims have all been resolved entirely on the issue of duty, and courts have not considered other elements of negligence (such as breach of duty or causation). In the sixth part of the paper, I critique the Canadian duty jurisprudence, using the health sector claims to illustrate broader problems with the test as currently articulated. Specifically, I argue for a contextual approach that makes the parties’ relationship central to the duty inquiry, and the use of restraint in allowing policy considerations to negate a duty on a motion to strike. Although I do not advocate for widespread governmental health sector tort liability, I do argue that the law could be applied in a manner that better facilitates accountability, for example, by allowing more claims to proceed to trial where the government would be required to justify its decisions. Because the judiciary’s reluctance to review governmental health sector decisions seems to be largely attributable to a concern over the judicial reallocation of scarce health system resources, I address this issue in the final part of the paper.

Keywords: health policy, tort, governmental liability, negligence, accountability