Medical Law in Canada

Constitutional Framework for Health Care

Medical law in Canada operates within a distinctive constitutional division of powers. Under the Constitution Act, 1867, provinces possess primary authority over health through s. 92(7) (hospitals), s. 92(13) (property and civil rights), and s. 92(16) (local matters). The federal government exercises authority through its criminal law power (s. 91(27)) and its spending power, enabling conditional transfers to provincial health insurance systems. This architecture has produced a universally accessible yet provincially administered medicare system, reinforced by the Canada Health Act.

The Canada Health Act, RSC 1985, c C-6, establishes the conditions provincial health insurance plans must satisfy to receive full federal cash transfers. The Act codifies five core principles: public administration, comprehensiveness, universality, portability, and accessibility. Each provincial health insurance plan — such as Ontario’s Health Insurance Act, RSO 1990, c H.6, and British Columbia’s Medicare Protection Act, RSBC 1996, c 286 — must adhere to these principles. Provinces that permit extra-billing or user charges face mandatory deductions from federal transfer payments.

Informed Consent

Informed consent is a cornerstone of Canadian medical law. The leading authority is Reibl v. Hughes, [1980] 2 SCR 880, in which the Supreme Court rejected the physician-centred standard in favour of an objective reasonable patient standard. A doctor must disclose all material risks that a reasonable person in the patient’s position would wish to know. Materiality is determined by the severity, probability, and particular circumstances of the patient.

The standard encompasses disclosure of the nature of treatment, its expected benefits, material risks, alternatives, and consequences of forgoing treatment. Failure to obtain informed consent sounds in negligence rather than battery. The causal link requires proof that a reasonable person would have declined treatment on the basis of the undisclosed information.

Provincial legislation also codifies consent requirements. Ontario’s Health Care Consent Act, 1996, SO 1996, c 2, Sch A, establishes rules for consent to treatment, admission to care facilities, and substitute decision-making for incapable persons. Section 11 imposes a duty on health practitioners to ensure consent is informed, voluntary, and given by a capable person.

Medical Malpractice and Negligence

Medical negligence applies the standard tort elements: duty of care, breach, causation, and damages. The standard of care is that of the reasonable practitioner in the same specialty. In ter Neuzen v. Korn, [1995] 3 SCR 674, the Supreme Court held that while expert evidence of customary practice is relevant, it is not determinative — a court may find a common practice negligent if it fails to meet the standard of reasonableness. This distinguishes Canada from the English Bolam test. Causation was shaped by Snell v. Farrell, [1990] 2 SCR 311, permitting an inference of causation where negligence materially contributed to the harm, and Resurfice Corp v. Hanke, 2007 SCC 7, affirming the “but for” test with limited exceptions for material contribution.

End-of-Life Decision-Making and Medical Assistance in Dying

The most transformative development in Canadian medical law in recent decades is the legalization of medical assistance in dying (MAiD). In Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court unanimously struck down the Criminal Code prohibition on physician-assisted dying as violating s. 7 of the Charter (right to life, liberty, and security of the person) and s. 15 (equality rights). The Court held that the prohibition was overbroad because it captured individuals experiencing intolerable suffering who were not at imminent risk of death.

Parliament responded with Bill C-14 in 2016, amending the Criminal Code to permit MAiD for competent adults with a grievous and irremediable medical condition whose natural death was reasonably foreseeable. In 2019, the Quebec Superior Court in Truchon c. Procureur général du Canada, 2019 QCCS 3792, struck down the reasonably foreseeable death requirement, prompting Bill C-7 (2021), which expanded eligibility to individuals whose death was not reasonably foreseeable while imposing additional safeguards, including a 90-day assessment period.

The law permits MAiD by self-administration or administration by a practitioner. Eligibility requires the person to be at least 18, eligible for publicly funded health services, have a serious and incurable condition in advanced irreversible decline, and experience enduring and intolerable suffering. Mental disorder as the sole underlying condition is excluded until March 2027, following further study of the safeguards needed.

Substitute Decision-Making and Advance Directives

Each province has legislation governing substitute decision-making for incapable persons. Ontario’s Health Care Consent Act establishes a hierarchy: a guardian appointed by the court, an attorney for personal care, a representative appointed by the Consent and Capacity Board, and family members. Decision-makers must act in accordance with the incapable person’s prior wishes or, if unknown, in the person’s best interests. Advance directives allow capable individuals to specify treatment refusals in future incapacity. Their binding effect was affirmed in Malette v. Shulman (1990), 72 OR (2d) 417 (CA), holding that a clear advance refusal must be respected even in emergencies.

Reproductive Technology Law

The Assisted Human Reproduction Act, SC 2004, c 2, regulates assisted reproductive technologies. In Reference re Assisted Human Reproduction Act, 2010 SCC 61, the Supreme Court struck down several provisions as exceeding federal criminal law power. The Act prohibits human cloning, commercial surrogacy, and the purchase of gametes and embryos, while establishing a licensing regime for controlled activities administered by Health Canada.

Mental Health Law

Mental health law is primarily provincial. Provincial mental health acts — such as Ontario’s Mental Health Act, RSO 1990, c M.7, and British Columbia’s Mental Health Act, RSBC 1996, c 288 — govern involuntary detention and treatment. Criteria typically require a mental disorder likely to result in serious harm or substantial deterioration. Patients may apply to consent and capacity boards for review. The Charter s. 9 (arbitrary detention) and s. 7 (fundamental justice) impose constitutional limits on involuntary committal.