Toronto Star with Martha Jackman 24 October 2019
An Ontario judge has given a widow the green light to pursue a Charter challenge against a Toronto hospital that refused to perform a liver transplant on her dying husband because he was an alcoholic.
Debra Selkirk, whose husband Mark died in November 2010, joined forces with the relatives of another man who passed away after being denied a liver transplant, and will now be able to argue that the widespread practice of requiring recipients to be sober for six months is discriminatory and a violation of the Canadian Charter of Rights and Freedoms.
In his ruling on Thursday, Superior Court Justice Andras Schreck rejected arguments made by the University Health Network that the charter does not apply to it because it’s a private entity and not part of the government.
The Charter, Schreck ruled, may apply in cases where actions of a private entity are related to a specific governmental program or policy.
“This is especially true of cases involving hospitals,” Schreck said. “In these circumstances, it is far from ‘plain and obvious’ that the charter does not apply.”
The ruling is based on a pair of Supreme Court cases in the 1990s which found that hospitals are private entities and not subject to the Charter when managing their internal affairs, but when they are delivering health care, they must respect the Charter, said Martha Jackman, a law professor at the University of Ottawa.
“The provinces have delegated to the hospital the responsibility for carrying out this fundamentally important government program: health care,” she said. “The hospitals, when they make decisions that affect patients’ access to health care in a discriminatory way, then that’s Charter-reviewable.”
“Any suggestion by that Toronto hospital group that the Charter would not apply to a decision they’re making around rationing of health care is completely unsustainable,” said Jackman.
“It’s a very clear precedent.”
Constance MacIntosh, a professor at the Schulich School of Law at Dalhousie University said the law allows for discrimination in the delivery of health care, but it must be based clinical evidence.
“If any institution is delivering a government-mandated program or service, they can’t draw distinctions that aren’t justified. They need evidence,” she said. “If the distinction is just born out of stereotype, or it’s just arbitrary, then you’re definitely at risk of violating the charter.”
The Trillium Gift of Life Network is responsible for overseeing organs donations and transplants in the province. It also sets the rules for who is eligible to receive an organ and does not allow people with livers damaged by alcohol to receive transplants unless they have been dry for at least six months.
Martha Jackman is a law professor at the University of Ottawa.