Victims of the load shedding caused by the many cases of COVID-19 which monopolize beds and hospital staff fear that the postponement of their surgeries or screening examinations will put their health at risk. While some are considering going to court to obtain a valuable meeting, lawyers consulted believe that the game is far from won in advance.
Such a legal process will not be easy in a context of health emergency like the one in which Quebec finds itself, commented from the outset Mand Patrick Martin-Menard.
Not impossible, but “very difficult”, judges the litigant who specializes in particular in medical law cases.
For an injunction that would force the state to provide care to a patient, the bar is “very high”.
This is also the case with all injunctions: the criteria are numerous and strict, because the person against whom it is directed — here, the Quebec State via a hospital center — has not had time to fully prepare its defense and all the evidence is not before the judge, as would be the case in a trial on the merits.
And the patient would have to provide proof, which can only be hypothetical, that his medical condition will deteriorate, added Ms.and Martin-Menard.
The lawyer said he has already received calls from concerned citizens, wanting to know if they have a viable remedy.
The faces of load shedding
Mand Bruce W. Johnston, a lawyer who has led many state lawsuits as well as numerous class actions, also believes that concerned patients will face several obstacles if they try to ask a judge to order that they be cured more quickly.
A judge will have to rule that a fault has been committed against them, and that there has been a violation of a rule or standard.
But here, what would be this fault when the State is faced with a case of “force majeure” like the COVID-19 pandemic, he asks.
“Force majeure” is an exceptional and unforeseeable circumstance. In 2009, the H1N1 pandemic was recognized as such in certain contractual actions.
But in the context of the load shedding carried out in the various hospitals in Quebec, a judge could take it for granted that priority has already been given to patients whose cases were the most critical and that it is the others who have seen their interventions postponed.
On the other hand, if there is a gross or gross fault, bad faith, or even favoritism in the choices made, the recourse could be crowned with success – if the proof of these situations is indeed made, continues Mand Johnson.
And then, the question of the allocation of resources of the health system falls within the domain of political choices, and not the sphere of action of the courts, recalled the two lawyers. Judges are reluctant to interfere in such decisions, analyzes Mand Johnson.
For example, if there is only one ventilator in a hospital for two patients who need it, a choice will have to be made, he illustrates. But this does not necessarily mean that a fault was committed with regard to the one who did not have it.
“When the government makes policy choices, it is immune from judicial review, except in cases of gross negligence,” among other exceptions.
As for an action for damages that would be brought after the fact, for the medical problems suffered, for example, an undiagnosed cancer that has progressed, it would also be difficult, because we must not forget that the State benefits from an “immunity relative” for his decisions, recalled Mr.and Martin-Menard. “Especially in a health emergency. The government has plenty of leeway.”
This immunity is a principle of law which establishes that the State cannot, except exceptions, incur responsibility because of its general political decisions.
“Immunity is a defense that the state pleads every time,” said Ms.and Johnson. And that adds an extra layer of difficulty.”
And if a patient wanted to blame the government for its inaction, i.e. for not being tough enough on the unvaccinated who end up in hospital, that would likely be a shot in the arm. , believe the two lawyers.
We would find ourselves there in the heart of the notion of political decisions in which the courts do not normally interfere, underlines Mand Martin-Menard.
To invoke the inaction of the government which would have failed to put in place a policy which would penalize certain people, when the mission of the State is to treat everyone, seems to be a lame avenue, adds Mand Johnson.
Despite the difficulties, they refuse to describe as “impossible” any recourse by patients. Those whose medical history and prognosis meet the legal criteria could, despite everything, obtain a favorable judgment, they argue.