Episode 9: What is health law?

September 7, 2021 | Tracey M. Bailey, KC, Annie Alport

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Hello and welcome to morning commute with Miller Thomson. You’re listening to episode number nine.

My name is Annie Alport.

And my name is Tracey Bailey.

And we are part of the health law team at Miller Thomson. We work out of the Calgary and Edmonton offices, respectively. And we do work in BC and Saskatchewan.

And we’re part of the team that does health law work across Canada. This is the first in a series of podcasts we will be doing on health law. And we’ve chosen as our first topic, what is health law?

So I suggested this topic as the first in our series because whenever people ask what I do, I say, of course, “I’m a lawyer”, then inevitably they say, “oh, what kind of law?” And when I say health law, I get blank stares, or the follow up: “what’s that? Like medical malpractice?” It is medical malpractice, but it’s more too. Although it’s considered a somewhat niche area of law it’s actually quite expansive. I started out doing some medical malpractice work and now I do so many different things in any given week that I’m even… even I am surprised at how expansive this area of law really is.

So Tracey, you’ve worked in health law for almost 30 years. Why don’t you start off by explaining what it is that you do?

Annie, I’ve had the same experience. I’ve had people ask me that question and it’s always a bit of a challenge to explain. Some people say there’s an area called health law and some people really say there isn’t. Because really health law is the intersection of anything to do with health and our healthcare system or healthcare professionals, and a whole number of areas of law. It can be things about criminal law, contracts, sports – and that’s where your medical malpractice question always comes up – constitutional law, property law, really almost everything under the sun.

But to give you a few examples of some work that I’ve done recently, in some of these just myriad of other areas. I’ve given advice, for example, on court orders under the Criminal Code with respect to accused facing charges, and its intersection with provincial mental health legislation, and can treatment be provided. That’s kind of a criminal example. Another example would be advice to health authorities about members of their medical staff, and issues regarding appointments and privileges of those members. I’ve worked with proceedings that might lead to litigation, or might lead to a hearing in front of an administrative tribunal. I’ve been asked to give advice recently on constitutional issues. So you’ve got somebody under the age of 18 and they’re not consenting to treatment, what can or can’t be done to force them into receiving that treatment, and what Charter rights are infringed. And I read contracts for health care facilities. There’s just so many examples I could go into. It’s just such a vast area, as you say.

And I’ve had the experience doing things like drafting legislation, or doing projects for a number of associations. And just as one kind of example, that came up recently, I did a project, well over a decade ago, for a physician association and a physician college – a regulatory body for physicians – and it was dealing with physicians with health conditions, and how should cases be handled if a physician is facing a complaint, but really, it’s as a result of a medical condition or illness. Well, that project initially was done for these bodies in one province, it then went on to be used by bodies across Canada, and then got picked up, I just heard a month or two ago, by Law Society looking at it for their purposes. So it’s really been gratifying that the work you do in this area can be so expansive. And while I’m not a specialist, you know, having that breadth of experience can really help clients when you try to tie those things together. And it’s certainly kept my practice very interesting to this day, over 30 years.

Annie, what’s been your experience. You’ve had a different practice experience than I’ve had. Why don’t you tell us a bit about what you do?

Yeah. So it’s interesting. Of course, I know your resume, but hearing you speak about what you do. It sounds like you’re doing work on the front end and I do a lot more work on the back end, because I’m more of a litigator.

So like I said, I did, I started doing medical malpractice, actually as a summer student with Miller Thomson. And so what I really enjoyed about these cases was that they told a story, right? So there’s usually an event, and it’s not an event that takes place over a long period of time. Usually, it’ll be you know, maybe it’s a surgery, or a birth of a baby and so the facts are quite quick in comparison to some other cases where you know, you have years and years’ worth of evidence and exchanges and so it’s a story about what happened during this relatively short period of time. And so I still do some of that work but I did take a few years away from health. I did some other things. Then when I got back into health, I ended up doing public health prosecutions. One thing that I did while I was out of health was criminal prosecutions. So this was a really good fit for me because it brought the two things that I enjoyed together and so at the time I started doing that it was the enforcement of largely the housing and food regulations under the Public Health Act.

But now, with COVID, there’s a whole new meaning to public health enforcement and enforcement of public health regulations. You know, there’s anti-mask protests, there’s violating quarantine, and these sorts of things, which all end up in enforcement. And the public health inspectors have had a tough time, I know, with some of these things but from a legal perspective, it’s been really interesting for me having had that experience to see it all in play. I describe it as the public health inspector Olympics. This is what they’ve been training for, for all these years, and finally, getting to do some really, really interesting work.

So other things like you, it’s not all litigation, I do do some advisory work so I advise colleges and associations, regulatory tribunals. And then in my litigation practice, I represent individuals and also health regions, in disciplinary and privileging matters. So when a college takes disciplinary action against a member, I can act for either the college or the member in those proceedings. Privileging as you mentioned, it’s also really interesting issue because it’s not a decision made by regulatory college, it’s between the health authority and these physicians. So physicians may be in good standing with their college but lose their hospital privileges and this inevitably ends up in litigation so that is where we step in.

That’s so interesting Annie. You sure had in your career really interesting mix of experiences as well. You know, our work for whether it’s health authorities or hospitals, colleges or associations, facilities or individual healthcare professionals. It’s just such an interesting area.

What we’re planning to do in some of our future podcasts, which will hopefully be of interest to our clients and others out there. We’ll talk a bit about some specific areas of health law and get into some of the examples that we’ve had out of our experience, and hopefully draw in some of our colleagues to talk about these issues as well. There’s just – it’s such a broad area, such an interesting area, and we hope we can help inform people through these podcasts as we record them into the future. So, hope you enjoyed our introduction to what is health law, and we look forward to connecting with you through a podcast in the near future. Take care, everyone.

Yes, we’re very excited about this series so we hope that you tune in for some of our future recordings.


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