Tag: Health

Here is an interesting couple of paragraphs from a US Court of Appeals case, Douglas v. Dobbs, Key, And District Attorney’s Office For The Twelfth Judicial District (US CA, 10th),
on privacy in relation to health care records:

The scope of personal matters protected by a right to privacy has never been fully defined. Supreme Court decisions “make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.” Roe v. Wade… Because privacy regarding matters of health is closely intertwined with the activities afforded protection by the Supreme Court, we have held that “there is a constitutional right to privacy that protects an individual from the disclosure of information concerning a person’s health.” … We have previously applied this right in the context of an employer’s search of an employee’s medical records, Lankford v. City of Hobart…and in the context of a government official’s disclosure of a person’s HIV status. A.L.A. v. West Valley City…

Although we have not extended the “zone of privacy” to include a person’s prescription records, we have no difficulty concluding that protection of a right to privacy in a person’s prescription drug records, which contain intimate facts of a personal nature, is sufficiently similar to other areas already protected within the ambit of privacy. See, e.g., Griswold v. Connecticut…. Information contained in prescription records not only may reveal other facts about what illnesses a person has, but may reveal information relating to procreation ­ whether a woman is taking fertility medication for example ­ as well as information relating to contraception. See Eisenstadt v. Baird…(“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”); Stidham v. Peace Officer Stds. & Training…(providing that disclosed information “must be highly personal or intimate” in order to receive constitutional privacy protection); Doe v. Southeastern Pennsylvania Transportation Authority…(holding that “[a]n individual using prescription drugs has a right to expect that such information will customarily remain private.”). Thus, it seems clear that privacy in prescription records falls within a protected “zone of privacy” and is thus protected as a personal right either “fundamental” to or “implicit in the concept of ordered liberty.”…

Anything in there you do not agree with?

It is not really the argument the two plaintiffs have brought to the Supreme Court of Canada today but it is close:

The Supreme Court of Canada will rule Thursday on whether it’s unconstitutional to prevent someone from paying for private medical care – a case that could change the face of Canadian health care. The plaintiffs – a Montreal patient and a doctor – want the court to strike down sections of the Quebec Hospital Insurance Act that prevent people from buying health insurance for medical procedures covered by the public health plan.

Whatever the outcome, the logic of today’s ruling will be interesting to review. I’ll see if I can have a look at it at noon. These rulings usually come out around 11 am I think.

LUNCHY UPDATE: I thought italicization, bold and upper case was warranted.

Here is the ruling and uni-level health care is gone-dee. The majority of the Court only relate it to Quebec’s Charter of Rights and finds it breached. The minority agrees and says it also breaches Canada’s Charter of Rights and Freedoms. Hang on – there are three rulings from the seven judges with a 4-3 majority. Two majority but different and one minority dissent, maybe in part. Hmmm. I don’t have time to figure this out. Geewilikers. Shouldn’t all law be digestible in under three minutes?

For me, the interesting bit is the minority’s discussion of section 7 of the Charter of Rights and Freedoms. This is the three of four judge majority decision, or at least the version from the headnote of every lawyer’s cheat best pal:

Where lack of timely health care can result in death, the s. 7 protection of life is engaged; where it can result in serious psychological and physical suffering, the s. 7 protection of security of the person is triggered. In this case, the government has prohibited private health insurance that would permit ordinary Quebeckers to access private health care while failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death. In so doing, it has interfered with the interests protected by s. 7 of the Canadian Charter.

Section 11 HOIA and s. 15 HEIA [Ed.: the operative provisions of the Quebec statute in question] are arbitrary, and the consequent deprivation of the interests protected by s. 7 is therefore not in accordance with the principles of fundamental justice. In order not to be arbitrary, a limit on life, liberty or security of the person requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The task of the courts, on s. 7 issues as on others, is to evaluate the issue in the light, not just of common sense or theory, but of the evidence. Here, the evidence on the experience of other western democracies with public health care systems that permit access to private health care refutes the government’s theory that a prohibition on private health insurance is connected to maintaining quality public health care. It does not appear that private participation leads to the eventual demise of public health care.

So the government cannot have a regime where it statistically kills us? Is that it? Unnecessary pain is unacceptable? I hope the libertarians out there kiss the ground the Supreme Court of Canada sits upon as this is a great example of the highest court of the land recognizing the autonomy of the individual under the Charter.