IV. Health

Article 25 of the Convention requires State Parties to recognize

that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. ²¹²

Therefore, State Parties must ensure that persons with disabilities have access to gender-sensitive health services. ²¹³ Under the Canadian constitution, individual and public health are made largely matters of provincial legislative concern; ²¹⁴ hence, the legislation, policy and case law discussed will be primarily provincial. ²¹⁵

Note #212

Ibid.

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Note #213

Ibid.

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Note #214

Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss 92(7),(13) and (16).

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Note #215

See Martha Jackman, Constitutional Jurisdiction Over Health in Canada (2000) 8 Health LJ 95 at 110.

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Standard of Health Care

Under the Convention, State Parties must ensure that persons with disabilities have access to the

same range, quality and standard of free or affordable health care and programmes as provided to other persons. ²¹⁶

Ontario's Excellent Care for All Act, 2010 was enacted to ensure that

health care organizations are responsive and accountable to the public, and focused on creating a positive patient experience and delivering high quality health care. ²¹⁷

The statute applies to every health care organization to ensure that a certain standard of health care is delivered in the province. ²¹⁸ In Québec, the purpose of An Act Respecting Health Services and Social Services is to increase the health and welfare of persons in Québec by ensuring that health and social services are available to them. ²¹⁹ It sets out the rights of all users of Québec's health and social services, stating specifically that

Every person is entitled to receive, with continuity and in a personalized and safe manner, health services and social services which are scientifically, humanly and socially appropriate.

²²⁰

Note #216

Convention, supra note 2, art 25(a).

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Note #217

SO 2010, c 14, Preamble.

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Note #218

Ibid, Preamble, s 2.

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Note #219

RSQ, c S-4.2, ss 1-3.

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Note #220

Ibid, s 5.

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There is little legislation governing the standard and quality of health care services and programmes provided to persons with disabilities. Complaints of inequality in the health care system have been made under section 15 of the Charter. A private entity that implements a specific governmental policy or program will fall under Charter scrutiny. ²²¹ When hospitals provide medically necessary services under provincial legislation, they are carrying out a specific governmental objective, and thus will be subject to Charter scrutiny. ²²² The Supreme Court of Canada has found that the failure to provide public funding for sign language interpreters to deaf persons receiving medical services was a violation of section 15(1) and was not a reasonable limit under section 1 of the Charter. ²²³

Note #221

Eldridge, supra note 42 paras 43-44 [Eldridge].

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Note #222

Ibid at paras 50-51.

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Note #223

Ibidat paras 80, 94-95.

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Specialized Health Services, Habilitation and Rehabilitation

The Convention requires State Parties to provide

health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons

. ²²⁴ Related, under article 26 of the Convention, State Parties must assist persons with disabilities to

attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects in life. ²²⁵

Therefore, State Parties must

organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes. ²²⁶

Article 26 requires that habilitation and rehabilitation programs be based on individualized assessments and begin at the earliest stage possible. ²²⁷

Note #224

Convention, supra note 2, art 25(b).

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Note #225

Ibid, art 26.

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Note #226

Ibid.

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Note #227

Ibid, art 26(1)(a).

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In BC, the Ministry of Children and Family Development offers a variety of individualized early childhood intervention programs for children

who show signs of, or are at risk of having, a developmental delay or disability. ²²⁸

The provision of these programs resulted in the case of Auton (Guardian ad litem of) v British Columbia (Attorney General), where the autistic infant claimants alleged that BC's failure to fund Applied Behavioural Analysis or Intensive Behavioural Intervention therapy (ABA/IBI) was a violation of their section 15(1) Charter rights. ²²⁹ The Supreme Court of Canada found that the Canada Health Act,²³⁰ read in conjunction with BC's Medicare Protection Act ²³¹ did not require funding for all medically required services. ²³² Funding is only required for core services provided by medical practitioners, and the province has discretion in terms of funding non-core services. ²³³ Therefore, since BC did not legislate funding for ABA/IBI therapy, there was no benefit provided by law that had to be implemented in a non-discriminatory manner. ²³⁴ A variety of programs are offered for children with disabilities in Manitoba, Ontario, and Newfoundland, including ABA and IBI for children diagnosed with autistic spectrum disorder (ASD). ²³⁵ As persons with disabilities reach adulthood, various services and programs in each province are offered that assist with living and participating in the community. ²³⁶ These include residential programs,²³⁷ day services,²³⁸ and home and other assisted living services. ²³⁹

Note #228

British Columbia Ministry of Children and Family Development, Early Childhood Intervention.

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Note #229

[2004] 3 SCR 657 at para 1.

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Note #230

RSC 1985, c C-6 [CHA].

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Note #231

RSBC 1996, c 286.

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Note #232

Auton, supra note 229 at para 35.

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Note #233

Ibid.

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Note #234

Ibid at paras 46-47. .

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Note #235

Manitoba Family Services and Consumer Affairs, Services for Persons with Disabilities; Newfoundland Department of Health and Community Services, Programs Funded through the Department of Health and Community Services; Ontario Ministry of Children and Youth Services, Special Needs.

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Note #236

See e.g. Community Living Authority Act, SBC 2004, c 60, s 2(1); Community Living British Columbia, Community Living British Columbia, [CLBC]; Manitoba Family Services and Consumer Affairs, What is the Vulnerable Persons Act?; Programs Funded through the Department of Health and Community Services, ibid; Services and Supports to Promote the Social Inclusion of Persons with Development Disabilities Act, 2008, SO 2008, c 14, ss 4, 13-14 [Services and Supports Act]; Ontario Ministry of Community and Social Services, About the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, [Ontario, About the Services]; Québec, SSWI, supra note 170, ss 1.1, 45.

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Note #237

See e.g. CLBC, ibid.; Services for Persons with Disabilities, supra note 235; Ontario, About the Services, ibid.

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Note #238

See e.g. Continuing Care Programs Regulation, BC Reg 146/95, Schedule, s 1; Services for Persons with Disabilities, ibid.; Ontario, About the Services, ibid.

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Note #239

See e.g. Continuing Care Programs Regulation, ibid; Programs Funded through the Department of Health and Community Services, supra note 235; Ontario, About the Services, ibid.

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Article 26(2) requires State Parties to promote initial and continued training for professionals and staff working in habilitation and rehabilitation services. In BC, the CLBC provides training and development policies and programs to its staff to ensure continuous learning. ²⁴⁰ Manitoba Family Services and Consumer Affairs provides various training workshops and professional development opportunities for staff employed in day and residential services under Community Living disABILITY Services, as well as to others who provide support services to persons with disabilities. ²⁴¹ In Ontario, the regulations under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 describe quality assurance measures for the services and programs funded under the legislation. ²⁴² For example, under section 7(4), each service agency must provide proper training to its staff, which addresses the health needs of persons with developmental disabilities who are receiving a service under that agency. The regulations under the AODA also requires every provider of goods or services to properly train members of their staff with regards to the provision of goods or services to persons with disabilities. ²⁴⁰ State Parties must also

promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities. ²⁴⁴

A variety of programs in the provinces aid persons with disabilities in obtaining assistive devices and technologies. ²⁴⁵

Note #240

CLBC, Job Seekers/Careers.

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Note #241

Manitoba Family Services and Consumer Affairs, Supporting Persons with Disabilities: The Online Training Calendar, Manitoba Family Services and Consumer Affairs.

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Note #242

Quality Assurance Measures, O Reg 299/10.

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Note #243

Accessibility Standards for Customer Service, supra note 97, s 6.

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Note #244

Convention, supra note 2, art 26(3).

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Note #245

See e.g. British Columbia, Personal Supports; Ontario Ministry of Health and Long-Term Care, Assistive Devices Program; Curateur public Québec, Sources of Funding for Assistive Devices

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Accessibility of Health Services

Article 25 of the Convention requires that health services are provided

as close as possible to people's own communities, including in rural areas. ²⁴⁶

Article 26(b) requires that habilitation and rehabilitation services are accessible to persons with disabilities as close to their own communities as possible. Telehealth, the federal government's program for offering health services using telecommunication technology, is a major way of ensuring that those who live in rural communities have access to health care. ²⁴⁷ The Canadian Government report on access to health care in rural Canada warns, however, that

telehealth must not be a substitute for local expertise. ²⁴⁸

In the provinces, there are programs encouraging health professionals to practice in rural areas. ²⁴⁹ Also, regional branches of health-related government agencies are available to serve individuals throughout the provinces. ²⁵⁰

Note #246

Convention, supra note 2, art 25(c).

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Note #247

Health Canada, Just for You – Rural Canadians; see also Stephen Laurent, Rural Canada – Access to Health Care (Ottawa: Library of Parliament, 2002).

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Note #248

Rural Canada – Access to Health Care, ibid at 20.

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Note #249

See e.g. Province of British Columbia and British Columbia Medical Association and Medical Services Commission, Physician Master Agreement (1 November 2007), at 73; Health Canada, Canada Health Act – Annual Report 2009-2010, (Ottawa: Health Canada) at 63, 106; Manitoba Office of Rural and Northern Health, Manitoba's Office of Rural and Northern Health.

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Note #250

See e.g. Manitoba Family Services and Consumer Affairs, Service Locations; Newfoundland Labrador Canada Department of Health and Community Services, Contact Information; Ontario Ministry of Children and Youth Services, Regional Offices.

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Quality of Health Care Professionals

Under the Convention, State Parties must require health professionals to

provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent. ²⁵¹

To accomplish this goal, State Parties are encouraged to raise awareness

of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care. ²⁵²

The Canadian Medical Association Code of Ethics applies to Canadian physicians, residents and medical students. ²⁵³ It requires physicians to practice medicine by treating

the patient with dignity and as a person worthy of respect

and to

[r]efuse to participate in or support practices that violate basic human rights. ²⁵⁴

In addition, when providing a medical service, physicians are prohibited from

discriminat[ing] against any patient on such grounds as... physical or mental disability. ²⁵⁵

Physicians also have a responsibility to

promote equitable access to health care resources. ²⁵⁶

The Code states that physicians should participate in

lifelong learning to maintain and improve … professional knowledge, skills and attitudes. ²⁵⁷

Physicians must also give patients the necessary information to make informed decisions about their health and they must answer questions to the best of their ability. ²⁵⁸ In doing so, physicians are required to

[m]ake every reasonable effort to communicate with ... patients in such a way that information exchanged is understood. ²⁵⁹

Note #251

Convention, supra note 2, art 25(d).

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Note #252

Ibid.

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Note #253

Canadian Medical Association, CMA Code of Ethics, Ottawa: CMA, 2004, Introduction [Code].

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Note #254

Ibid, ss 2, 9.

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Note #255

Ibid, s 17.

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Note #256

Ibid, s 43.

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Note #257

Ibid, s 6.

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Note #258

Ibid, s 21.

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Note #259

Ibid, s 22.

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Similarly, legislation sets out the requirement to obtain informed consent. BC, Ontario and Québec have legislation regarding consent to medical care, wherein care cannot be provided without consent, with a few exceptions (e.g. emergency). ²⁶⁰ It is presumed that an individual is capable of providing consent to health care, from the age of majority in BC,²⁶¹ age 16 in Manitoba,²⁶² any age in Ontario,²⁶³ and 16 in Newfoundland. ²⁶⁴ As an example of a definition of capacity, Manitoba law states,

a person has capacity to make health care decisions if he or she is able to understand the information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. ²⁶⁵

Where a person lacks capacity to consent to care, statutes set out the process for substitute decision-making. ²⁶⁶ In provinces without a statute on capacity or consent to health care, such as Newfoundland, similar common law norms govern consent and capacity. ²⁶⁷ The Supreme Court of Canada has held that courts' parens patriae jurisdiction, that is, their power to make decisions in the best interests of minors and mentally incompetent individuals, can never be used to authorize non-therapeutic sterilization. ²⁶⁸

Note #260

Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 5 [BC HCCA]; Health Care Consent Act, 1996, SO 1996, c 2, Schedule A, s 10 [ON HCCA]; An Act Respecting Health Services and Social Services, RSQ, c S-4.2, s 9;arts 10, 11 CCQ.

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Note #261

BC HCCA, ibid., s 3.

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Note #262

The Health Care Directives Act, SM 1992, c 33, s 4(2).

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Note #263

ON HCCA, supra note 260, s 4(2).

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Note #264

Advance Health Care Directives Act, SNL 1995, c A-4.1, s 7.

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Note #265

The Health Care Directives Act, SM 1992, c 33, s 2.

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Note #266

See e.g. RAA, supra note 65; VPA, supra note 70; SDA, supra note 70; Title Four CCQ. See also the discussion in Equal Recognition before the Law, above.

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Note #267

P.H. v Eastern Regional Integrated Health Authority, 80 R.F.L. (6th) 61 (SC (TD)).

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Note #268

E. (Mrs.) v. Eve, [1986] 2 SCR 388 at paras 86-7.

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Provision of Health and Life Insurance

The Convention requires State Parties to prohibit discrimination against persons with disabilities with regard to health and life insurance where such insurance is permitted by national law. ²⁶⁹ Insurance is required to be provided in a fair and reasonable manner. ²⁷⁰ Canada has a health care system funded publicly by federal and provincial/territorial revenue. ²⁷¹ The Canada Health Act dictates the

criteria and conditions in respect of insured health services and extended health care services ²⁷²

that must be met by the provinces in order for them to receive transfer payments from the federal government. ²⁷³ The CHA requires medically necessary services to be covered by the provincial health insurance plan. ²⁷⁴ The determination of which services are medically necessary is made individually by the provinces. ²⁷⁵ Non-medically necessary health services that are not covered by the provincial health insurance plan are to be paid for directly or through an employment or private insurance plan. ²⁷⁶ The Canada Health Act – Annual Report 2009-2010 generally found that access to insured health services was provided on uniform terms and conditions as required under section 12 of the CHA. ²⁷⁷

Note #269

Convention, supra note 2, art 25(e).

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Note #270

Ibid.

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Note #271

Health Canada, Canada's Health Care System.

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Note #272

CHA, supra note 230, s 4.

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Note #273

Ibid, s 5, 7.

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Note #274

Health Canada, Canada's Health Care System, supra note 271.

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Note #275

Ibid.

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Note #276

Ibid.

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Note #277

Canada Health Act – Annual Report 2009-2010, supra note 249 at 15, 56, 63, 73, 106.

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Each of the studied provinces allows some discrimination for the purposes of determining conditions in contracts for health insurance, life insurance or both. They allow this when the distinctions drawn are reasonable and bona fide ²⁷⁸ or made on good faith grounds. ²⁷⁹ The Supreme Court of Canada has held that a discriminatory practice is reasonable if

(a) it is based on a sound and accepted insurance practice; and (b) there is no practical alternative. ²⁸⁰

A sound practice is one adopted

for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. ²⁸¹

To be bona fide,

the practice must be one that was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code. ²⁸²

Whether there is a practical alternative depends on the facts of the case. ²⁸³

Note #278

OHRC, supra note 51, s 22. See also MHRC, supra note 51, s 15(2).

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Note #279

HRA, supra note 51, s 21(3)(a). See also Québec Charter, supra note 51, s 20.1 (allowing distinctions on the basis of health as a determination of risk factor); BC HRC, supra note 51, s 8(2)(b), (stating that discrimination on the basis of physical or mental disability or age does not violate the Code if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

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Note #280

Zurich Insurance Co v Ontario, [1992] 2 SCR 321 at para 23.

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Note #281

Ibid.

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Note #282

Ibid at para 24.

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Note #283

Ibid at para 23.

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Discriminatory Denial of Health Care or Health Services or Food and Fluids

Under the Convention, State Parties must prevent the discriminatory denial of health care, health services, or food and fluids on the basis of disability. ²⁸⁴ Canadian law is varied in determining if and when withholding or withdrawal of treatment is permitted. The Manitoba Court of Appeal found that

neither consent nor a court order in lieu is required for a medical doctor to issue a non-resuscitation direction where, in his or her judgment, the patient is in an irreversible vegetative state. ²⁸⁵

The Court went on to say that the decision

is a judgment call for the doctor to make having regard to the patient's history and condition and the doctor's evaluation of the hopelessness of the case. ²⁸⁶

However, this case only answers the question of when treatment can be withheld and does not answer the question of whether withdrawing treatment should be treated the same way. ²⁸⁷ The Ontario Court of Appeal considered the removal of life support and the transfer to palliative care to be a treatment package that could not be separated because death is imminent when life support is removed. ²⁸⁸ Therefore, consent by the substitute decision-maker is required for the entire treatment package – the removal of life support and the transfer to palliative care. ²⁸⁹ As of April 2012, the case is before the Supreme Court of Canada. ²⁹⁰

Note #284

Convention, supra note 2, art 25(f).

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Note #285

Child and Family Services of Manitoba v R.L. (1997), 154 DLR (4th) 409 at para 17.

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Note #286

Ibid.

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Note #287

Golubchuk v Salvation Army Grace General (2008), 290 DLR (4th) 46 (QB) at para 25.

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Note #288

Rasouli (Litigation guardian of ) v Sunnybrook Health Services Centre, 2011 ONCA 482 at paras 50-52.

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Note #289

Ibid at para 58.

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Note #290

See Cuthbertson v Rasouli (Litigation Guardian), [2011] SCCA No 329 (QL).

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Under section 241 of the Criminal Code, aiding or abetting someone to commit suicide is an indictable offence and may lead to imprisonment for a term of not more than 14 years. ²⁹¹ The homicide provision also covers a form of assisted suicide. ²⁹² Further, section 14 prohibits any person from consenting to have death inflicted upon him or her. ²⁹³

Note #291

Criminal Code, supra note 95.

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Note #292

Ibid, s 222(5)(c).

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Note #293

Ibid. See also Rodriguez, supra note 113.

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