MJLH Series: Dealing with Bullying

Posted By Jessica Walsh – Oct. 29, 2012

 

Jessica Walsh is a second-year law student at McGill with a background in international relations, social policy and gerontology. She has worked in the field of social policy and ageing at the Public Health Agency of Canada, HelpAge International and, most recently, the World Health Organization.

 

A nation-wide discussion on bullying and anti-bullying strategies has dominated the Canadian media in recent weeks, in large part motivated by the tragic death of Amanda Todd, a BC teenager and cyber-bullying victim. One option to address bullying, including cyber-bullying, being considered at the moment is the introduction of anti-bullying legislation (Anti-bullying legislation has already been introduced in some provinces). Given that bullying can trigger serious health effects, the MJLH has decided to create a series of blog posts to consider bullying as a health issue and to weigh the advantages and disadvantages of addressing bullying through legislation.

PART I: BULLYING AS A HEALTH ISSUE

Most definitions say that bullying consists of three elements: bullying is 1) repeated behaviour that 2) involves intentional attempts to hurt another person and 3) to use power over them (Canadian Public Health Association). Bullying can also be social, physical, verbal, and/or electronic (cyber) (Physical Health Problems and Bullying).

Individuals involved in bullying and victimization have been shown to have a greater chance of developing physical health problems, including headaches, stomach pain, poor appetite, and bed wetting (Physical Health Problems and Bullying). They are also at a greater risk of experiencing psychological distress and depressive symptoms, among other psychosocial health effects (Psychosocial Problems and Bullying). Moreover, children and adolescents who have been involved in both being bullied and bullying others are the most likely to experience psychosocial health difficulties (Psychosocial Problems and Bullying). This evidence establishes a clear link between bullying and the possibility of negative health repercussions.

As Canadian educators and policymakers explore options to address bullying, this blog series will ask whether law should play a role in dealing with bullying and, if so, what this role should look like. To provide a complete overview of what is at stake in this debate, we will also evaluate alternatives to anti-bullying legislation.

Check back soon for Part II, where we will outline policy options for addressing bullying.

US Elections: Canadian Lessons in Healthcare

Posted By William Stephenson – Oct. 24, 2012

William Stephenson is a first-year law student at McGill and also studied at the University of Virginia School of Law. His main interests are in comparative healthcare systems and policies and in the impact of non-health related regulations on the healthcare system.

 

Obamacare is not the answer to the problems of the American healthcare system. If you believe universal healthcare is what America needs, here are three Canadian lessons on how to make it work.

1. EMPOWER THE STATES

Put control over healthcare in the hands of the states and help them establish universal healthcare on a voluntary basis. This better respects American federalism and gives states the latitude to adopt their own solutions.

In Canada, the federal Canada Health Act sets out a program whereby the federal government provides funds for provincial governments to manage their own health insurance plans as long as they meet the standards set forth in the Act. Compliance with the Act – and receipt of funds – is voluntary, and all provinces and territories now participate in the program.

Much the same could be done in the United States by granting funds to states that institute universal healthcare coverage and meet basic standards. Of course, the constitutional question would loom large, but the existence of current federal funding programs and South Dakota v Dole (483 US 203 (1987), holding that withholding federal highway funds for failure of state to raise drinking age was constitutional) are strong indicators that such a program’s constitutionality would be upheld.

2. JUST TAX IT

Forget the individual mandate.  Make each participating state the primary health insurer and increase tax rates for people in higher income tax brackets, both at the state and federal level, to fund the plan.

Forcing many middle income individuals to buy health insurance adds a burden that they cannot afford. While Obamacare seeks to address this difficulty by subsidizing health insurance for such individuals, these subsidies are an unnecessary multiplication of administrative work and obtaining subsidized insurance would represent another hurdle for people struggling to make ends meet.

By increasing tax rates, marginally on higher middle income earners and most substantially on high income earners, rather than imposing an individual mandate on everyone, low and middle income individuals would be given the opportunity to achieve higher income levels, since health insurance would be one less burden on their finances.

In Canada, the healthcare system is a vector of economic mobility. Young people and lower income individuals are taxed at lower rates, but when they reach higher income levels pay more income tax and thus subsidize healthcare for the next generation, as once their healthcare was subsidized by higher income earners.

Obamacare’s provision that people under 26 be able to remain on their parents health insurance policy manifests good intent, but as with much else in the Act is unnecessarily complicated. Tax it, and remove the complications.

3. KEEP A PRIVATE OPTION (I.E. DON’T DO AS WE DO)

Canada does not allow people to obtain private health coverage; this is where Canada is an example of what not to do. The fear, of course, is that by allowing people to get private coverage, a two-tier system would develop in which people would favor the private tier, thus eroding the quality of the public system and threatening its very existence. This is a noble concern, but ignores the infinite potential permutations of a mixed public-private system. It also denies people the opportunity to obtain care when they need it as soon as possible – people who, in seeking treatment under a different regime, could also alleviate stress on the public system.

The private-public mix is prevalent and effective in Europe and Oceania. The issue is getting the mix right. Here then, each state could take note of the shortcomings in the Canadian model and observe the success of these other systems to achieve the best mix for its citizens.

Obamacare is a poor solution to America’s healthcare woes. For those looking for better solutions, Canada offers a wealth of lessons.

The implications of Mabior for people living with HIV

Posted By Rosel Kim – Oct. 13, 2012

On October 5, 2012, the Supreme Court issued a ruling on two cases on HIV status non-disclosure to sexual partners. R. v. Mabior and R. v. D.C. provided an opportunity for the Court to clarify its position on HIV status non-disclosure to sexual partners.

 Part I: What the Court said

 Background

Clato Mabior was diagnosed with HIV in 2004 and began antiretroviral therapy shortly afterwards. He had an undetectable viral load (where the HIV virus was fully suppressed in the body) from October 2004 to December 2005.  Between January 2004 and March 2006, he had sexual intercourse with multiple women with intermittent condom use, without disclosing his status. No transmission of HIV occurred. At trial, Mabior was convicted of six counts of aggravated sexual assault.

When D.C. first met her ex-partner in 2000, she had an undetectable viral load.  She did not disclose her HIV status when they first slept together. D.C. stated a condom was used, but her ex-partner later testified that no condom was used. She disclosed her status afterwards, and they were in a four-year-long relationship. Their relationship was abusive, and ended with D.C. calling the police after being physically assaulted by her ex-partner. He was charged with assault in November 2004. In February 2005, D.C.’s ex-partner complained to the police that D.C. did not disclose her HIV status after their first sexual encounter. As a result, she was charged with aggravated sexual assault and sexual assault. D.C.’s partner never contracted HIV.

 Existing law on HIV status non-disclosure

Until Mabior, the criminal law imposed a duty to disclose one’s HIV status to sexual partners if there was a “significant risk of bodily harm” (R v. Cuerrier, 1998). Failure to disclose would lead to a charge of sexual assault or aggravated sexual assault, because the court stated that the partner’s consent to have sexual relations was vitiated by the non-disclosure.

The Court declined to define the meaning or scope of “significant risk,” though it did suggest that proper condom use may alleviate significant risk in obiter. Cuerrier resulted in varied interpretations and applications of the law by lower courts.

Risk of HIV transmission by the numbers

 For unprotected vaginal intercourse, the risk of HIV transmission is assessed to be about 0.08-0.1%.  If a person has an undetectable viral load, the risk is reduced to about 0.01%. (E. Mykhalovsky, HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario, 2010, available online at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf)

When a condom is used properly, the risk of transmission can go down to virtually zero. Generally, consistent condom use is said to reduce the risk of transmission by 80 per cent.

The Court’s ruling in Mabior (http://scc.lexum.org/en/2012/2012scc47/2012scc47.html)

The issue at the Supreme Court was whether the Cuerrier test was still valid.

After reviewing other common law jurisdictions that criminalize non-disclosure when there is HIV transmission (such as the UK, some Australian jurisdictions and New Zealand), the Supreme Court rejected this approach for being too burdensome on the Crown.

The Court also rejected a “reasonable partner” approach (which stated that every person is responsible for his/her own sexual health, rather than putting the burden on the person living with HIV). The Court ruled this approach would not be suitable because the passionate nature of sexual relations would impede assessment of what a reasonable partner would expect.

Instead, the Court decided to define the scope of “significant risk” and uphold the Cuerrier test. Stating that a 1 in 10,000 chance of contracting HIV through vaginal sex if a partner has an undetectable viral load is a “realistic possibility,” the Court ruled that significant risk is only negated if a person’s viral load is low (below 1,500 copies/ml) and if a condom is used.

The Court’s ruling in D.C. (https://scc.lexum.org/en/2012/2012scc48/2012scc48.html)

 The Court applied the Mabior test in D.C., but acquitted D.C. on the ground that her ex-partner was not a credible witness, and the Crown failed to establish beyond reasonable doubt that there was no condom use in their encounter.

 

NOTE: Pt. 2 of this blog post will discuss the HIV community’s reaction and worrisome implications arising from the Supreme Court’s ruling. 

Getting to know the MJLH: : Megan Van den Hof, Senior English Editor

Posted By Rosel Kim – Oct. 1, 2012

 

INTRODUCING: MEGAN VAN DEN HOF, SENIOR ENGLISH EDITOR

 

1. Pourquoi le droit de la santé? 

Law and health is really interesting because it’s about issues that test the limits and the adaptability of law.

2. What was your favourite MJLH moment?

I really liked the MJLH Colloquium!

3. What is the quirkiest thing about McGill law?

Probably the diverse and unexpected backgrounds of its students.

4. Qu’est-ce que vous avez fait cet été ?

I took a summer class, travelled, and worked as an intern at the WHO Framework Convention on Tobacco Control.

5. What are you doing when you’re not at the journal or at law school?

Ideally, spending time outside!