University of Alberta Faculty of Law Blog

Do Helmet Laws Work?

Helmet usage reduces head injuries for cycle riders. But do mandatory usage laws work? A new study suggests maybe not.

Online health and the law

What happens when someone's son gets shot? Normally, one takes them to the hospital. Is that the normal reaction, or is it to go online and look up WebMD? After all that is what we do for almost everything else these days. So is the mother's fault that she did that instead of going to the local hospital? Maybe today that is the norm, but what will it be in a few years?

Nanny State Cometh

Because when the state becomes so interested in our health, the state can now take one's baby without any justification, just because one has the temerity to ask for a second opinion.

Lawyers should queue-jump?

The problem with socialized medicine is that while it is supposed to be equal for all, it usually is equal for some but not for all. The state rations supply (as opposed to the market), but unlike the market that blindly takes whoever can pay first, the state invents all sorts of arbitrary criteria to justify who gets in first. So when the state decided to hold a public-health inquiry to a recent queue-jumping incident, it was no surprise that some criteria were proffered by the lawyer for the Alberta Medical Association (AMA). The lawyer stated that

Health-care workers also need better guidelines on to identify how they might be able to treat family or colleagues without damaging the public’s trust in a system where preferential treatment is given based on medical need.

So far so good - in a state-controlled utopian way. Then, the lawyer (the way the story reads suggests that this comment is from the AMA's lawyer) went to give some examples:

For instance, it may be acceptable for a doctor to treat a nurse for a sprained ankle without requiring her to wait in line at emergency, if that nurse might be able to get back to work faster.

Ok, I get that. Then the lawyer for the public-inquiry itself adds:

It might be appropriate for a lawyer to get a cataract removed more quickly because her work requires her to read a lot .... Treating family members or filling the prescriptions of clinic staff after-hours might also be OK .... 

Woah!

Did you catch that little bit of public-choice in action (the first part not the last)? Supposedly, lawyers are champions of justice and good-i-ness everywhere. Please leave us out of the conversation when we are telling the public why we should be restricting their choices on what they can do with their taxes. It is bad enough that the public perceives lawyers in a negative way - justifying this negative image does not help.

 

Mocha Bans? Not Likely

Why is everybody so quick to condemn soda and want its quantities limited when it turns out that there are as many calories in that specialty coffee, if not more. Because, its not about paternalism but elitism:

[Those who] call[] for a ban [on] Cokes and not Mochas indicates that what really bothers [them] is the behavior of those low-brow folks who slam giant soft drinks, but not so much the worse behavior of the middle-class and educated who just can’t start the day without a latte. 

I myself, always wondered why certain drugs were illegal under the pretense of addictions when tea and coffee were perfectly legal. And if anyone tells you coffee is not really that addictive, ask them to function a month without any tea or coffee.

Take a nap

Happy National Napping day - because we can all benefit from a nap in the day.

Freedom of Speech meet health law

When the state controls the levers of health, like in the UK, you have no right to free speech. Of course, in Canada, we have no right to free speech, so don't be shocked if this results holds true here.

No Soda Bans!

In New York, King Bloomberg rules with an iron fist. He bans what he likes not. He saw large soda, and decided no one could have large soda. He just waved his wand, and today the ban was supposed to take effect.

Then a judge today said "hold on - you can't do that, not now or ever". Wow - the rule of law, which some thought had died many years ago, is still alive.

Walter Olson at Cato tells us more:

 

You are a fat *$%

That sounds really rude and inconsiderate, but it is the recommendation of a bioethicist to combat obesity. In order to curb obesity, the scholar recommends fat shaming.

This is the result of the modern state invading our private spheres. The scientists who point to public resources being spent on health then seek to use whatever tools they have to achive their social goals, no matter how demeaning or violative of human dignity their proposals are.

Perhaps, we should add bioethicists to the list of professions whose members are cold and uncaring.

No Death Panels Here

When Sarah Palin accused ObamaCare of having the effect of creating death panels, she was mocked and attacked. In Canada, where we have a state-owned healthcare system, we have had the equivalent for many years as evidenced by this recent case being argued at the Supreme Court. The fact is that when we have to ration our care, end-of-life decisions have to be made based on economics. Doctors can call it what they want, but that is what takes place. The Americans will soon experience what we have had for decades. Sarah Palin may be right after all.

Lysol was a contraceptive?

It is strange what one stumbles upon when searching for something completely unrelated. But this article titled Selling Sexual Certainty? Advertising Lysol as a Contraceptive in the United States and Canada, 1919–1939 is fascinating. Kristin Hall (who is a PhD student at Waterloo) shows that Lysol was advertised as a contraceptive in the early twentieth century to get around restrictions on selling contraceptives. 

If you are at the UofA or another university, you should be able to access the full article. Otherwise, here is part of the opening:

During the interwar period, Lysol Disinfectant was sold throughout Canada and the United States as a contraceptive douche for women. In fact, Lysol became the leading over-the-counter contraceptive sold on the euphemistically termed “feminine hygiene” market. Though the sale of contraceptives were illegal in both Canada and the United States since the latter part of the nineteenth century, by the 1920s, astute manufacturers were selling goods with supposedly contraceptive properties, including vaginal jellies, foaming tablets, and as was the case with Lysol, vaginal douches. As contemporaries argued, advertising played a central role in the success of the feminine hygiene industry.

The article is interesting, because it places the legal abortion cases in the proper context. After all, the litigation over abortion rights were preceded by litigation over contraceptive rights. Indeed the Griswold case is what allowed Roe v. Wade to be decided. 

 

Soda Taxes

Yet another academic (and this time a fellow UofA prof) wants to tax soda in the name of fighting disease. Never mind that Denmark figured out their fat tax didn't work, or that others concede it won't work (see also and also).

Federal Government Proposes Amendments to Canada’s Embryo Research Law

The Federal Government has proposed amendments to the Assisted Human Reproduction Act, the legislation that governs fertility treatment services and embryo research, including many aspects of stem cell research. The amendments, which are contained in an omnibus budget implementation bill tabled before Parliament on April 26, seeks primarily to implement the 2010 Supreme Court of Canada ruling that invalidated several provisions of the law on the basis that the power to enact those provisions belonged to the provinces. The bill also seeks to abolish Assisted Human Reproduction Canada, the beleaguered federal agency charged with the responsibility of enforcing the legislation. Other proposed changes include:

• The licensing regime for research activities permitted by the legislation will cease to exist. This means that scientists will no longer require a license to conduct research on supernumerary IVF embryos, for keeping and handling gametes and embryos, or for transgenics. These activities are, in fact, no longer regulated under the statute. However, they would still be subject to other research regulations, such as the Tri-Council Policy Statement and the CIHR Guidelines for Human Pluripotent Stem Cell Research, or to future provincial regulations.

• The revised statute will maintain the prohibitions on research involving embryos and gametes. This includes bans on creating embryos for research purposes, somatic cell nuclear transfer, buying and selling of human gametes, and possibly, the derivation of gametes from induced pluripotent stem cells. This, in my opinion, is a missed opportunity to revise aspects of the law that are out of touch with scientific realities and public opinion.

•  The provision that bars many experts (persons who are, have applied to be or are affiliated with others licensed to carry out research activities permitted by the Act) from sitting on the Board of Directors of Assisted Human Reproduction Canada will be repealed. Prior to September 2009, such experts were also barred from sitting on the Stem Cell Oversight Committee, the national research ethics board established to monitor and approve human pluripotent stem cell research protocols. The practice of excluding experts from oversight boards is unique to Canada and to human pluripotent stem cell research, and is primarily aimed at addressing issues arising from conflicts of interest in research ethics oversight. The rule has attracted some criticism, with some commentators (including myself) noting that it is an example of cutting off the nose to spite the face. To exclude experts from oversight activities that sometimes require intimate knowledge of the field seems a bit heavy-handed and ill-informed. A better strategy would be to create comprehensive and stringent rules for managing conflicts of interest. This is the approach taken in most other jurisdictions, including the UK, where the stem cell research regulator is generally regarded as a model of good governance and oversight. One hopes that with the repeal of this provision, CIHR would also amend its rules to address the exclusion of experts from SCOC.

For those interested in seeing what the legislation would look like if the amendments are passed into law, I have prepared a revised version which you can download here.

Common (Public) Nuisance and the Fear of Smallpox

via Health Law in British North America

“The fears of mankind, though they may be reasonable, will not create a nuisance” – Defence counsel, R v Vantandillo, (1815), 4 M & S 72, 105 ER 76 (KB).

In R v Vantandillo, a mother was convicted and sentenced to three months imprisonment for “unlawfully and injuriously” carrying his infant son, who was infected with smallpox, along a public highway. The case is one of many that fall under the “grab bag” common law offence of common or public nuisance. The case also provides some insights on the strict liability quality of public nuisance qua crime. Here’s how:

• A “judgment by default” was entered against the defendant. I am not familiar with the history of this procedure, but I doubt that it means the same thing as a default judgment in the context of civil proceedings. If I were to guess, I would say that a conviction was simply entered against the defendant upon notice of the indictment. Some statements in the case report support this theory. For example, it is reported that “the defendant having suffered judgment by default, appeared to receive the sentence of the Court,” which suggests that an actual trial was dispensed with. Also, at the sentencing hearing, Lord Chief Justice Ellenborough, responding to the defence counsel’s contention that it was entirely possible that the only reason her client presented her child on the street was to obtain medical advice, noted (in a somewhat circular fashion) that even though the “necessity” defence could be proved by evidence, such defence was precluded by the mere fact that the “indictment alleged that [the offence was committed]…unlawfully and injuriously.”
• The defence counsel argued that the mother’s actions were neither unlawful nor injurious to anyone. According to him, since the indictment did not state how the child caught the disease or that he was purposefully inoculated with smallpox by or at his mother’s request, it was perfectly reasonable to assume that the reason why she exposed the child in the streets was to obtain medical treatment (inoculating or procuring the inoculation of a person was also a common law offence, even if commonly relied on at that time as a preventative from smallpox). This act by itself (i.e. the actions of caring mother), he argued, could not be unlawful. On the question of injury, he argued that since the indictment did not show that the child carried some outward manifestation of smallpox (such as sores) as the time of exposure, it cannot be concluded with certainty that there was any injury presented by the situation. He noted that without such outward evidence (as in the case of leprosy, and by analogy to the writ of de leproso amovendo), it would be difficult to distinguish between infected persons who pose an injury to the public and those who do not.

The court rejected both arguments. It surely must not have helped the defendant’s case that the prosecution alleged that “the passage in which the defendant had exposed the child was a cul de sac, extremely narrow; that there was a small school kept there, and that two of the children had caught the disorder and died.”

“Health” and the Distribution of Legislative Powers in the BNA Act, 1867

via Health Law in British North America

Here are some ideas (hypotheses?) emerging from my current research on infectious disease legislation and the advent of state medicine in 19th century Canada:

• Prior to confederation, legislation on the subject of “health” can be grouped under three general headings: quarantine and emigration laws, laws relating to vaccination, inoculation and sanitation, and laws relating to hospitals and health professions. The theme common to these three areas is the prevention and management of infectious and contagious diseases (indeed, it appears as if the fear and threat of diseases provided the impetus for state involvement in the regulation of medicine and health care, but that is a story for another post). These areas, with the exception of quarantine and emigration, emerged from and remained under the legislative and administrative mandates of local authorities until confederation (see my next point for why quarantine and emigration is excepted). More interestingly, at the time of confederation, these two areas had not coalesced into a precise, or (at a minimum) recognizable legislative notion of “health” or “health care”.  One could therefore hypothesize that this situation may account for why health—unlike “quarantine and the establishment and maintenance of marine hospitals”—is not specifically enumerated as a head of power under the British North America Act (BNA Act), 1867.
• In 1853, the Province of Canada legislature consolidated all statutes relating to quarantine and emigration under one enactment, thus repealing a number of quarantine statutes that had their origin in pre-union Canada. This may have contributed to a “vision” of quarantine as belonging to a class of subjects of national interest, despite the fact that early quarantine laws dealt mainly with local measures to prevent the importation of infectious and contagious diseases (especially in Lower Canada and Nova Scotia [see e.g. here, here and here]—Upper Canada entered the 1841 union without any quarantine laws, for reasons I speculated on in an earlier post). The 1853 consolidation specifically repealed the principal Lower Canada legislation dealing with quarantine in the context of importation of diseases, and replaced it with a section which empowered the Governor in Council to issue regulations relating to quarantine measures directed at the “preservation of the Public Health” and preventing the “introduction and dissemination of disease.”

So what are the implications of all this? First, I think there is a strong historical link between infectious disease regulation and the development of “state medicine” or more specifically, state/legal intervention in health/care. Second, the absence of a precise concept of “health” in the legislative context, and the fact that much of what made up that concept was handled by local authorities prior to confederation may account for why the subject of health is missing from the distribution of powers scheme in the BNA Act, 1867. What we find instead is that under the BNA Act, the legislative power over the establishment of health care institutions—one of three major areas of “health” legislation prior to confederation—falls to the provinces. This head of power, along with powers over property and civil rights and matters of a merely local or private nature in the province form the locus of authority that informs the present notion that the provinces occupy more of the field of health governance. Conversely, the responsibility for quarantine legislation may have shifted with the 1853 consolidation.

Interesting side note: Under the 1853 consolidation, any “Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person” arriving in Canada must be accompanied by family members. If unaccompanied, and if in the opinion of the Medical Superintendent, “likely to become permanently a public charge,” the Master of the vessel in which such a person arrived in the Province must execute a bond with “two sufficient sureties” in the amount of seventy-five pounds to indemnify the Province for any expenses incurred for his/her maintenance and support within three years of arrival. This suggests that during this period, the maintenance of infirm and mentally ill residents of Canada was paid for by relatives or, in the case of persons without relatives, out of the public purse. What would have been the quid pro quo for the latter arrangement? Perhaps something similar to the Poor Law infirmary system?

Health Law in Lower and Upper Canada, 1791-1841

Consider this: Number of health-related legislation enacted between 1791 and 1841 in Lower and Upper Canada (i.e. during the period of formal existence of both provinces):Lower Canada: 6*Upper Canada: Nil*

via healthlawhistory.wordpress.com

This is cross-posted from my new blog on health law in early Canadian history.

Latest "Legislative Overreach" Analysis from SCC: Reference re Assisted Human Reproduction Act

Earlier today, the SCC issued its long awaited ruling on the constitutionality of several sections of the Assisted Human Reproduction Act, Canada's assisted reproduction and related research legislation. The principal issue in the case was whether the impugned provisions exceed Parliament's legislative authority. The case is a feds appeal from a Quebec Court of Appeal judgment which struck down the provisions for being an intrusion into matters within provincial legislative authority. The SCC decision was a 4/4/1 split, with Justice Cromwell casting the deciding vote to allow the appeal in part, and affirm the Quebec Court of Appeal decision in part.

Below is my diagrammatic representation of how the two opposing judgments dealt with the legislative overreach analysis. Before reviewing each one, try guessing at first glance which of them 1Ls will find more accessible.

You see, the thing about calling gametes "life's essence" is that...

Margaret Sommerville has a piece in Saturday's Globe and Mail that argues against donation of gametes specifically for procreation (which, according to her, some think is distinguishable from procreation for infertility treatment). Here are some nuggets from this piece:

• "Is donor conception the 21st-century version of the wrongs we now recognize we did to some children in the 20th century? Are we repeating in a new context and in new ways the terrible errors and grave injustices that occurred with Australia’s “stolen generation” of aboriginal children, the United Kingdom’s “home children” sent to Canada and other British Commonwealth countries, and the “scoop” of native children from reserves into Canadian residential schools and white adoptive homes, all of which deliberately separated children from their biological families.”
• "I suggest that the first step in dealing, ethically, with the issues I have identified and with other related issues, is to place the future child, and the child’s human rights and our obligations as a society to him or her, at the centre of the decision-making as to what should be required, allowed or prohibited – that is, what we must, may or must not do, respectively – in the use of assisted human reproduction technologies, including gamete donation."

Regarding the first, the analogy is jarring and wrongheaded in many ways I won't go into here. Not because I can't raise specific objections to it, but rather that I suspect my objections might be obvious to anyone who reads that. On the second point, well, it's a great thought, but I wonder if Somerville would recommend we use law to enforce the same for biological (or more to the point, heterosexual) procreation.

The problem I have with philosophical arguments like the ones suggested by this piece is not that they don't make sense, but that they require that nothing else make sense in order to sound legitimate. But hey, confusing statements like the one I just made are the reason G&M favors bioethicists with a clear moral position.

A Few Things From and For the Web

Anonymous Coward over at Bayblab - one of my favorite science blogs - has this interesting post which suggests that homeopathy and alternative medicine are attracting some positive attention in the British Parliament. I know a lot of people who would either enjoy or loathe this development.

This Harvard prof. has a few thoughts on what it really means to be a professor. (H/T Bayblog).

Some interesting recent developments in the world of biomedicine, science, law and policy:

• President Obama has asked his bioethics commission to look into the issues raised by synthetic biology following Craig Venter's recent announcement that his research team has created a synthetic cell. Other scientists say the work is a significant technical achievement, but not groundbreaking. Don't expect that to deter conspiracy theorists, who unfortunately may be writing the script for the next crop of lawmakers seeking to protect us from science gone mad à la embryonic stem cell research.
  
• Three members of the Board of Assisted Human Reproduction Canada, the federal regulatory agency responsible for implementing the provisions of the Assisted Human Reproduction Act, have resigned their posts. Interestingly, they can't say why because of a gag order written into their terms of service. You can read my reflections on the resignations here. One thing I did not mention in that post is that the current membership of the Board certainly does not "reflect a range of backgrounds and disciplines relevant to the Agency's objectives" as expressly required by the Act. Not that it matters - the Board has been largely inactive since its establishment in 2004.
• If you know someone planning to travel abroad for stem cell treatments, ask that they check out this website. A speaker at a regenerative medicine conference I attended last week in Madison, WI suggested that clinics offering unproven and unapproved stem cell treatments may be operating within a new research and innovation paradigm whereby patients receiving these treatments serve as unwitting funders and subjects of research. Or as I like to think of it: the paradigm that killed the right of autonomy.

Autism vaccine linked rejected

So says the Court of Federal Claims in the United States. The court hears cases where claims are being made against the U.S. federal government.  I am not sure if this will end the debate.  This story about how a researcher who tried to show such a link faked the data may also end the discussion, but I also doubt it. (h/t Point of Law)