Comparative Health Systems Law & Policy

This course focuses on the impact of law on the structure and dynamics of Canada’s health care system. How do we decide what new drugs and technologies are publicly funded, and what are the legal avenues of appeal available to patients? How does the law contribute, at a systems-level, to ensuring the quality and safety of care delivered to Canadian patients? How and why has Canada’s health system failed Aboriginal peoples, and what role has the law played? What can the law do to improve upon wait times for care? Why does Canada not have a national insurance system for prescription drugs and what can be done about it? Delving into these and other live debates, students will gain an understanding of the legal framework of governance for Canada’s health care systems, the impact of federalism on health care policy, and how this ultimately shapes the care received by Canadians. Student will also learn the importance of the dynamic relationship between law and policy and how to apply public law principles through analysis of Charter and administrative challenges to the Canadian health care system.

Studies In Public Law

At the heart of public health law and policy lies this basic question: to what extent can the state legitimately impinge on individual rights, in its efforts to promote or protect the health of the population? Controversies rage over public health policies such as proposals for a fat tax, banning super-sized portions of sugary or high-fat foods, reducing salt in our diets, elimination of tobacco advertising, GMO labeling, mandatory vaccinations (and alleged links with autism), fluoridation of the water supply, criminalization of HIV non-disclosure, scrutiny of individuals donating blood and ban on the sale thereof, and the criminalization of commercial surrogacy and the sale of ova and gametes. Areas of law engaged include statutory interpretation, criminal law, constitutional law, tort law, privacy law, and administrative law.
Those favouring a restricted role for public health speak of the importance of individual self-reliance, the problem of paternalism and the slippery slope of government intervention(s) that further erode individual liberties. Those in favor focus on improving the population’s health, the cost-effectiveness of deterrence over disease treatment, and the importance of promoting social justice and protecting the vulnerable both within nations and at the global level. In this course we will explore these conflicting views and their grounding in philosophical frameworks (libertarianism, libertarian paternalism, contractarian rights theory, egalitarian liberalism, utilitarianism, and communitarianism) and public health frameworks (police powers, human rights, civic models) and, in addition, consider the extent to which public health decision-making inculcates evidence about what works and doesn’t work. We will also explore the role of both domestic and international law in the formulation, execution, administration and frustration (through judicial challenge) of public health policy at national and global levels. These issues will be animated through case studies of, for example, tobacco control, obesity control, water safety, blood safety, drug safety, vaccinations, environmental regulation, responses to pandemics and communicable diseases, regulation of new reproductive technologies, abortion and maternal health, firearms control, and narcotics regulation. Students will develop a robust analytic lens for assessing public health law and policy, and hone their skills at forcefully advocating for or against particular initiatives.