Resource allocation decisions in Canada's health care system: can these decisions be challenged in a court of law

Abstract

This paper explores how the Canadian courts have responded to resource allocation decisions that have impacted on patients. While there have been few Canadian cases, those that exist fall into two categories. In the first part of the paper, we discuss recent cases that fall into the category of traditional negligence cases where a patient has been harmed and is seeking redress from the providers of care. What is emerging is that individual defendants, either physicians or institutions, are raising economic factors in their defence. The issue, we examine in this context is whether economic arguments can be successful in justifying the level of care that was provided and we conclude that, to date, courts have not been receptive to these arguments. The second part of the paper discusses those cases where patients have used legal arguments to try and change a governmental/policy decision, or to seek redress from harm caused by such a decision that has affected their access to care. In this context, patients have used principles of administrative law, constitutional law and tort law with varied degrees of success. We provide an analysis of these cases and conclude that it is difficult for patients to succeed when challenging allocation decisions at the policy level.