Tag: Ian Bernstein

Contributed by Ian Bernstein

Introduction

Brian Day, an advocate for private health care who runs a Vancouver-based private clinic, is seeking to overturn a 2020 Supreme Court of British Columbia decision, Cambie Surgeries Corporation v. British Columbia (Attorney General), that dismissed his claim against the province. In his claim, Day argued that the British Columbia’s health care system “denies patients the right to timely care”, that “patients have a constitutional right to pay for private care when wait times in the public system are too long,” and that the restriction of “private, for-profit health care” through prohibitions on billing practices violates constitutional rights, namely the right to life, liberty and security of the person and the right to equality as per sections 7 and 15 of the Canadian Charter of Human Rights and Freedoms, respectively. Day filed this claim after being “found guilty of illegally overcharging patients almost half a million dollars in a 30-day period.”

Legislative Framework Prohibiting ‘Duplicative Health Care’ Practices in Canada

The legislation that was being challenged in Day’s lawsuit was articles 14, 17, 18, and 45 of British Columbia’s Medicare Protection Act (MPA) and article 3 of the federal Canada Health Act (CHA). These Acts prohibit health care professionals in the public sector from engaging in certain practices that closely resemble those of privatized health care systems, including directly billing insured patients for medical services that are available in public health plans, as well as billing directly for services that are billed in a provincial plan. In essence, these Acts serve to “protect equitable access to care for all” and to prevent a system of ‘duplicative health care,’ whereby patients are able to receive the same services by a particular practitioner through both public and private health care systems.

Although private payment for services insured by Medicare programs are allowed in provinces like British Columbia and patients can legally be billed privately, health care professionals can only do so if they do not simultaneously provide the same services in public facilities, such as hospitals. Therefore, doctors are prohibited from “billing patients or their insurance companies” in private clinics while also being remunerated by the government for the same services they provide in the public sector.

Other provinces in Canada have similar legislation as the MPA. For example, Nova Scotia enacted the Health Services and Insurance Act in 1989, and Ontario enacted the Health Care Accessibility Act in 1990. These Acts reflect legislative efforts to preserve Canada’s health care system in order to ensure universal access to medical and other services, to prevent creating financial incentives for physicians to practice in the private sector, and to avoid a phenomenon whereby a patient can choose to consult their physician through the private sector as a means to receive “better” care, for example through shorter wait times.

History of Constitutional Challenges Against Regulations on ‘Duplicative Health Care’ Practices

At the core of Day’s constitutional challenge was that it is unconstitutional to prevent patients from accessing private medically necessary health care, including private surgeries, when they are unable to access timely care in the public system. Interestingly, this is not the first constitutional challenge against Canadian public health care legislation. In Allen v. Alberta, the plaintiff claimed that the prohibition on private health care insurance in Alberta, as per section 26 (2) of the Alberta Health Care Insurance Act, is unconstitutional by infringing his right to life, liberty and security of the person protected by section 7 of the Charter, due to long wait times and other delays encountered in the public health care system. The provision at issue prevents insurers from covering health care services covered by a public health care plan.

Although Allen’s claim was dismissed both at trial and on appeal, in Chaoulli v. Quebec (Attorney General), the Supreme Court of Canada found that section 15 of the Health Insurance Act and section 11 of the Hospital Insurance Act violate both section 7 of the Canadian Charter and section 1 of the Quebec Charter, and that neither violation is justified. Notably, the purpose of these statutes is to “promote health care of the highest possible quality for all Quebeckers regardless of their ability to pay” [49]. The plaintiffs claimed that these sections constitute a prohibition on private health insurance that “deprives them of access to health care services that do not come with the wait they face in the public system” [2]. In their reasons, the Court held that “by prohibiting health insurance that would permit ordinary Canadians to access health care…the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death” [124].

Long wait times is one of the major criticisms of the Canadian health care system. || (Source: CreativeCommons//tswicegood)

Consequences of Unregulated Private Health Care

It may appear advantageous in theory to grant patients unregulated access to both public and private health care systems, however a two-tier health care system warrants some caution. For example, according to Jonathan Penner, a lawyer for the government of British Columbia, “the frail and elderly, patients with complex conditions, and those with severe mental illness and/or substance-use issues would be particularly disadvantaged because regulating a public-private system that could invite American-style insurers would come at a high cost and take money away from public health care.” Moreover, Penner argues that under this type of system, “wait lists for patients requiring palliative care as well as emergency and urgent services” would increase because health care practitioners would be drawn to private clinics, thus enabling them to make money in both public and private systems for the same procedures.

In addition, according to the Canadian Health Coalition, a two-tier system would allow doctors in private clinics to ‘cherry pick’ patients who are willing to pay for treatment and can be treated relatively quickly and easily, with more serious, chronic or complex cases being left for the public system. This system would also increase wait times for most Canadians by removing doctors from the public system and favouring those who pay for care. Lastly, it would enable doctors in the public system to set their own fees in private clinics and private insurers to profit from “publicly-covered care from wealthy citizens ready to pay for care.” It is clear, therefore, that the detriments associated with this type of system are severalfold.

A two-tier health care system may allow insurance companies to profit from publicly covered procedures. || (Source: CreativeCommons//franchiseopportunitiesphotos)

Conclusion: Strengthening Equity in Canadian Health Care

An ideal solution is a health care system that focuses on equity to preserve the principle that all Canadians should receive health care based on what they need, as opposed to what they can pay. As stated by Former Federal Minister of Health Patty Hadju in 2020, “all Canadians deserve universally accessible

health care … Patient charges — whether they take the form of charges at the point of service or payment for private insurance — undermine equity.”

Moreover, in order to prevent the quality of health care in Canada from eroding, measures have been implemented at the provincial level as a means to remedy some of the biggest shortcomings associated with the Canadian health care system. For example, “E-consultations” in Saskatchewan, as well as rural Ontario’s Virtual Triage Assessment Centre both serve to decrease wait times for medical care. However, we remain only at the tip of the iceberg, and more must be done at all levels of government to ensure that Canada’s health care system is truly considered to be an equitable one.

Ian Bernstein is a Senior Online Editor for the McGill Journal of Law and Health, and a third year JD/BCL student at McGill University’s Faculty of Law. Prior to beginning law school, Ian completed an undergraduate degree in psychology and linguistics at McGill. During his undergraduate studies, Ian completed two honours theses, one of them being in the McGill Health Psychology Laboratory, which is where his interest in health law stems from. Ian was also involved in research through having been the recipient of an NSERC Undergraduate Student Research Award in 2017, as well as a Psychology Undergraduate Research Award in 2018.

Contributed by Ian Bernstein

Introduction

Following the recent approvals of COVID-19 vaccines, it is reasonable to wonder whether or not it will eventually be mandatory for people to receive a vaccine. Once the vaccines become more widely available, they can be used as a means to attenuate the severity of the global pandemic and return to a greater sense of normalcy in society. The following article will address if and how governments in Canada and the United States can legally impose mandatory vaccination programs, as well as how likely they would be to implement such measures. In addition, whether or not mandatory vaccination for specific sectors of the population can be imposed will be discussed, along with alternative methods that are being derived to incentivize populations to receive a COVID-19 vaccine.

Many may be wondering whether mandatory immunization against COVID-19 will be implemented now that vaccines for the virus have been approved and rolled out. || (Source: Pixabay // Arek Socha)

Governments and Public Health

To date, no government in Canada has implemented compulsory immunization against COVID-19, and it is unlikely that they will do so. However, these governments do have jurisdiction to enforce mandatory vaccines through their power to regulate matters of public health in each particular province. For instance, in Quebec, upon the declaration of a public health emergency, which has been done amidst the COVID-19 pandemic, the Public Health Act grants the provincial government and the Minister of Health a high degree of power as a means to respond to the emergency. Such powers include the ability to “order compulsory vaccination of the entire population or any part of it against…any…contagious disease seriously threatening the health of the population.”

Moreover, the Alberta Public Health Act grants the Lieutenant Governor in Council the powers to order immunization against a disease in the presence of an epidemic or public health emergency. However, Jason Kenney, the current Premier of Alberta, wants to change this by amending the statute. If he is successful, this would constitute a striking difference between Alberta’s Public Health Act and that of Quebec. A future government would have the ability to reinstate this section of Alberta’s Public Health Act if they are in favour of mandatory immunization, but this would require the development and passing of legislation.

While governments in Canada have not signalled plans to mandate immunization against COVID-19, their power to regulate public health enables them to do so. || (Source: creativecommons // Mightydrake)

In the United States, individual states are granted similar powers as the Canadian provinces, as they have the authority to regulate public health, and have previously mandated vaccines in extraordinary circumstances similar to those we are currently facing. Indeed, the constitutionality of state-mandated vaccines as a means to protect public health and safety was upheld by the Supreme Court in Jacobson v. Massachusetts, in which case a mandatory vaccination program against smallpox was at issue. In fact, even cities can be granted such powers, which was done in Williamsburg, Brooklyn in 2019 amidst a measles outbreak. Thus, in the context of COVID-19, the question is not whether mandatory vaccination is legal, but rather, whether it will be enforced.

Mandatory Vaccination for Specific Groups

Although the majority of Canadian provinces do not intend on imposing mandatory vaccination against COVID-19, statutory legislation geared towards particular sectors of the population can leave certain individuals with essentially no choice but to get a vaccine. For instance, Ontario’s “Occupational Health and Safety Act stipulates that employers have an obligation to get rid of known hazards in the workplace and protect employees from work-related illness or injury,” and the British Columbia Workers Compensation Act requires employers in the province to maintain a safe workspace for its employees. As such, employers have a duty to “take precautions to limit the spread of infectious diseases in the workplace,” thus granting them the authority to mandate immunizations for their employees. In the United States, “the U.S. Occupational Safety and Health Administration has stated that employers can legally impose a flu vaccine requirement on their workforce,” and employees can be terminated for refusing to get immunized.

Certain sectors of the population, such as employees, may be subject to mandatory immunization against COVID-19 even without a government-imposed mandate. || (Source: creativecommons // CulturaGovBr)

Furthermore, Ontario and New Brunswick require schoolchildren to be vaccinated against certain diseases such as “diphtheria, tetanus, polio, measles, mumps and rubella, while Manitoba requires a measles vaccination.” Whether COVID-19 will be added to this list remains unknown, as the vaccine has not yet been approved for children under 16 years of age. It appears, however, that subsets of the population such as employees and schoolchildren are generally more susceptible to being subject to mandatory vaccination.

These mandates raise legitimate legal and constitutional concerns, as they must accord with human rights laws and constitutionally protected freedoms. Indeed, an employer terminating an employee who cites a valid reason for refusing to get a COVID-19 vaccine can amount to a human rights violation. For example, this may constitute discrimination based on a prohibited ground under the British Columbia Human Rights Code. Vaccine mandates in the workplace must also not be discriminatory towards employees who do not receive the vaccine for religious or medical reasons. Similarly, Ontario’s Immunization of School Pupils Act enables schoolchildren to be exempted from mandatory vaccines for religious or medical reasons. In the United States, employees have the right to request accommodations as well as medical or religious exemptions from mandatory vaccines under federal anti-discrimination laws, such as the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1964, and employees who are part of a union may be entitled to exemptions as well.

Incentivizing Mandatory Vaccination

Even if mandatory immunization against COVID-19 is not enforced by governments, members of the general public who choose not to receive a vaccine may nonetheless find themselves rendered unable to partake in daily life. For instance, Quebec’s Director of Public Health can order people not to visit certain places where there is an outbreak if they have not been vaccinated, including educational institutions, workplaces, and other gathering places. Airlines, restaurants, stores and stadiums can make immunization a condition of doing business with customers, and it is possible that the use of such conditions will be widespread as more people get immunized against COVID-19. In the United Kingdom, places like bars, cinemas, restaurants and concerts plan on demanding proof of vaccination in the near future. Even within Canada, there is talk of a ‘vaccine passport’ to store immunization records, which would allow establishments to know who has been vaccinated and who has not.

Although such measures do not necessarily make immunization mandatory, they have the effect of precluding those who do not get vaccinated from attending certain locations or establishments. However, they are legal, as businesses generally have the right to refuse customers and in the current circumstances, courts are likely to uphold these decisions in the name of health and safety. In addition, under the International Health Regulations, countries can require travellers to provide vaccination certificates, which is currently enforced for yellow fever and has been enforced in the past for polio. Only time will tell whether the same will be done for COVID-19, but nonetheless, it is clear that the notion of immunization passports is not new.

Conclusion

The general public in Canada and the United States most likely do not need to worry about a mandatory COVID-19 vaccine being imposed on them at the provincial, state, or federal levels of government. However, specific groups within the population, such as employees, are more restricted with regards to their choice to receive a vaccine. This in conjunction with measures such as proof of immunization can perpetuate the appearance of a mandate, and may have the effect of placing a high degree of pressure on individuals to get vaccinated against COVID-19, despite the absence of a government-imposed mandate.

Ian Bernstein is a Junior Online Editor for the McGill Journal of Law and Health, and a second year JD/BCL student at McGill University’s Faculty of Law. Prior to beginning law school, Ian completed an undergraduate degree in psychology and linguistics at McGill. During his undergraduate studies, Ian completed two honours theses, one of them being in the McGill Health Psychology Laboratory, which is where his interest in health law stems from. Ian was also involved in research through having been the recipient of an NSERC Undergraduate Student Research Award in 2017, as well as a Psychology Undergraduate Research Award in 2018.

Contributed by Ian Bernstein

Introduction

Legal and policy initiatives exist internationally to address and reduce psychosocial hazards in the workplace. In many countries, such initiatives include efforts to protect workers’ mental health, which thus imposes a duty of care on employers to safeguard the mental well-being of their employees, and to provide help where possible to tackle mental health problems. This includes Canada, as for instance, Saskatchewan explicitly includes mental health in the purview of its Occupational Health and Safety Act. Preventing or helping to reduce adverse mental health outcomes in employees is especially important amidst a pandemic. Luckily, although unbeknownst to many of them, employers have resources at their disposal that can be used to help them exercise this duty, one of them being mindfulness training.

What is Mindfulness?

Mindfulness is defined as an awareness that emerges through paying purposeful attention to the unfolding of an experience in the present moment. Practicing mindfulness, typically through meditation in groups or alone, allows us to be fully aware of our environment and our inner thoughts, feelings, and emotions on a moment-by-moment basis, without judgment or criticism. Mindfulness can help reduce stress through working as a circuit breaker for the cycle of stressor and reaction, because it helps to counteract our unconscious reactivity to stress by bringing it to our awareness. This in turn allows us to acknowledge, but take a step back from the stress and to see it from a different perspective, rather than repressing it and allowing it to fester. The ability to simply accept things as they are, without attempting to control them, is at the heart of mindfulness practice. Mindfulness is a great solution as it is relatively low cost, time-efficient, and can be practiced alone in any setting. This is particularly helpful during a pandemic with the implementation of physical and social distancing measures.

Benefits of Mindfulness for Professionals and Students

Mindfulness practice can benefit those in any profession, and this includes lawyers, who often work highly demanding jobs with long hours and encounter many sources of stress. According to the Mindfulness in Law Society, practicing mindfulness cultivates many skills and mental qualities that can be helpful to those in the legal profession, including the ability to focus, concentrate, recognize and let go of distractions, manage stress and other emotions, and accept others openly, compassionately, and authentically. Moreover, the National Task Force on Lawyer Well-Being discussed in their 2017 comprehensive report how practicing mindfulness can also enhance many competencies related to lawyer effectiveness, including increased working memory, critical cognitive skills, reduced burnout, and ethical and rational decision-making, while simultaneously reducing rumination, stress, depression, and anxiety.

These aforementioned benefits associated with mindfulness training also apply to students. Particularly given the present circumstances which include online classes on Zoom and studying predominantly from home, the boundary between students’ social and academic lives has been attenuated, and students are being rendered dependent upon technology in order to succeed and advance in their academic careers. It is thus unsurprising that many students, including law students, are continuously distracted by their cell phones and laptops. Such distraction can have adverse effects on the students’ ability to pay adequate attention to their lectures, and effectively learn the required material. Mindfulness training can help, as it has been demonstrated to improve attention, working memory, academic achievement, and creativity by reducing various sources of stress and negative emotions which interfere with focus and learning.

New teaching methods amidst the COVID-19 pandemic have increased distractions and stress levels among students. || (Source: creativecommons // bastamanography)

Dissemination of Mindfulness Interventions

Increased mindfulness research has culminated in a push to implement mindfulness interventions in the workplace, including the legal profession. In Canada, mindfulness workshops, in particular those that teach people how to prevent, identify, and cope with sources of stress that can contribute to or exacerbate mental illness, have been promoted by the Canadian Bar Association and the Law Society of Ontario. In the United States, similar mindfulness programs created by experts have been implemented in some of the most prestigious law firms in the nation. Moreover, at least a dozen American bar associations have programs related to mindfulness. Dentons, a multinational law firm, developed a pilot mindfulness program in 2018 and recruited lawyers from across their European offices to participate. The results of the pilot demonstrated a statistically significant decrease in overall stress and improvement in social and emotional well-being.

Implementing mindfulness interventions in the workplace can be beneficial for professionals. || (Source: creativecommons // jurvetson)

A similar trend can be observed in universities. For instance, one of the recommendations for law schools in the National Task Force on Lawyer Well-Being Report is to create a well-being course and lecture series for students, which focuses on stress-reduction techniques and how substances like alcohol and marijuana affect cognitive function, among other things. Accordingly, Western University’s law school in London, Ontario, has introduced a course about exercising mindfulness, which is thought to be the first of its kind in Canadian law schools. In addition, the University of Toronto Faculty of Law has implemented a mindfulness program comprised of multiple sessions that students can attend, and Dalhousie University’s Schulich School of Law has followed suit. Mindfulness has made its way into American law school curricula as well, with mindfulness courses being offered at law schools across the country, including at Ivy League universities such as Yale and Columbia.

Potential Concerns

Despite the evidence corroborating the effectiveness of mindfulness training for employees and students, there remains apprehension regarding the utilization of mindfulness. In the legal context, some fear that the development of a deeper understanding of one’s own motives and decisions might make it difficult for some lawyers to undertake certain activities that are widely considered essential for proper lawyering, such as questioning a hostile witness or steadfastly advocating for a client’s positions. However, the skills acquired through mindfulness practice can help nurture a service orientation in some lawyers and law students, connecting them with the service-oriented motivations that ultimately drew them to the legal profession.

Conclusion

Mindfulness training can be helpful in mitigating many of the stressors and negative emotions that employees and students alike tend to experience in their daily lives, particularly amidst the ongoing pandemic. It must be remembered that a healthy employee is a good employee, and a healthy student is a good student. Therefore, nurturing the mental health of employees and students is crucial, and practicing mindfulness is an ideal way to cultivate feelings of positivity and relaxation at a time when they are much needed.

Ian Bernstein is a Junior Online Editor for the McGill Journal of Law and Health, and a second year JD/BCL student at McGill University’s Faculty of Law. Prior to beginning law school, Ian completed an undergraduate degree in psychology and linguistics at McGill. During his undergraduate studies, Ian completed two honours theses, one of them examining the efficacy of a mindfulness-based intervention for weight loss, which is where his interest in mindfulness stems from. Ian was also involved in research through having been the recipient of an NSERC Undergraduate Student Research Award in 2017, as well as a Psychology Undergraduate Research Award in 2018.