Prof. Hilary Young

A Proposal for Access to Treatment Contrary to Clinical Judgment

by Hilary Young

Published by McGill Journal of Law & Health

September 21, 2017

Remarkably, it is unclear in much of Canada whether physicians must provide treatment contrary to their clinical judgment when it is requested by patients. The Supreme Court held in Cuthbertson v Rasouli that an Ontario statute allows patients to demand certain life-sustaining treatment contrary to clinical judgment. However, much confusion remains in Ontario when non-life-sustaining treatments are at issue, and the common law across Canada remains unsettled.

To assess the benefits and detriments of different approaches to the issue, the laws of Ontario and England are compared. Whereas in Ontario physicians must provide (at least) certain life-sustaining treatment contrary to clinical judgment, in England, courts have consistently held that physicians may refuse to provide treatment contrary to their clinical judgment. English physicians may withdraw even life-sustaining treatment from patients, despite opposition from patients or their families, if the physicians believe continued treatment is medically inappropriate.

Each approach has benefits and detriments. Ontario’s law, for example, has the benefit of promoting patient autonomy, while England’s approach recognizes that physicians’ role is in part moral and helps protect patients.

Opting neither for the English approach nor the Ontario approach, I ultimately suggest that physicians should be required to provide patients with the treatment they request, even if contrary to clinical judgment, unless a court or tribunal determines the requested treatment to be unreasonable in the circumstances. Unreasonableness should be assessed based on medical criteria, the patient’s values, availability of resources, or any other relevant consideration. This approach has the advantage of giving patients a large degree of autonomy and limiting the cost of access to justice, while acknowledging that the physicians should continue to have some role in limiting access to medical interventions.

URL: https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3040593_code1850411.pdf?abstractid=3040593&mirid=1

The Canadian Defamation Action: An Empirical Study

Published by The Canadian Bar Review

September 1, 2017

This article is the first of its kind in Canada. It examines reported defamation decisions empirically, providing information about average awards, rates of success, the percentage of corporate claims, the percentage of new media (internet) claims etc.

Public Body Defamation Actions

Published by Dalhousie Law Journal

June 1, 2016

This article examines the law regarding governments' ability to sue in defamation and concludes that they cannot. It then considers what might count as government for the purposes of this rule. A fairly broad definition is proposed, akin to government for the purposes of access to information law.

Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs

Published by UBC Law Review

2013

URL: http://heinonline.org/HOL/LandingPage?handle=hein.journals/ubclr46&div=21&id=&page=

Cuthbertson v. Rasouli: Continued Confession over Consent-Based Entitlements to Life Support

Published by Alberta Law Review

June 1, 2015

2015 Cuthbertson vs. Rasouli had the potential to be the most significant case on the law of informed consent since Reibl vs. Hughes more than thirty years ago. The narrow issue before the Court was whether informed consent is required for doctors to withdraw life support they believe no longer to be medically appropriate.

URL: http://heinonline.org/HOL/LandingPage?handle=hein.journals/alblr52&div=38&id=&page=

Adding Insult to Injury in Corporate Defamation Damages

Published by Tort Law Review

2013 The article first argues against treating a defendant’s failure to apologize to a corporation as a factor aggravating damages. The only relevance to a corporation of an apology is as a form of setting the record straight. Thus, an apology may mitigate damages but a failure to apologize will often have no effect on damages. Yet the law treats a failure to apologize as aggravating damages. Similarly, the defendant’s malice is considered a factor aggravating damages, but since corporations cannot be upset, embarrassed or insulted, it is not clear that malice should be relevant to calculating their compensatory damages. Finally, courts should no longer award damages in order to vindicate corporate reputation. The interest in human dignity may justify the vindicatory goal of defamation law. However, given that corporations have no dignity to protect, and given a number of problems associated with attempting to award damages to vindicate reputation, it is not justifiable to award corporations damages to vindicate their reputations.

URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2298336

'Anyone…In Any Medium'?: The Scope of Canada's Responsible Communication Defence

Published by in Comparative Defamation & Privacy Law (Andrew Kenyon ed.) Cambridge University Press

May 1, 2016

2016 The article argues that the Supreme Court's decision in Grant v Torstar is best understood as applicable to any kind of communication – not just journalism and new media cases. If that is true, however, it makes little sense to assess whether communication is responsible with regard to indicia of ethical journalism. For example, seeking the plaintiff’s side of the story and communicating it may be indicative of responsible journalism, but it is less clearly relevant to whether a tweet or conversation with a friend is responsible. The article therefore proposes that the indicia of responsible communication be abandoned in favour of negligence law’s “reasonableness” inquiry.

URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2420103