In a challenging and ethically fascinating case, the Ontario Superior Court of Justice recently considered the human rights dimensions of a hospital's decision around organ transplantation. The situation involved two patients at a Toronto hospital who were seeking liver transplants due to alcohol-related liver disease (ARLD).[1] The hospital refused to perform the procedure as it deemed the patients to be ineligible. Their decision was based on certain "Listing Criteria" developed by the Ontario Trillium Gift of Life Network (TGLN) – including that an individual who requires a liver because of ARLD must not have consumed alcohol in the six months prior to his or her placement on the transplant list.
The TGLN Listing Criteria and the processes around post-mortem organ donation are adopted provincially to ensure that resources (such as viable livers for donation) are fairly distributed primarily on basis of acute need. In this case, the hospital also chose to extend TGLN's Listing Criteria to live organ donation processes (i.e. through a directed donation by a live donor) – a decision also premised on the notion of fair allocation of resources. From the perspective of both the hospital and TGLN, the fairness of the provincial organ donation system is based on the systematic application of pre-determined criteria. However, this determination of fairness brought the hospital and TGLN squarely into the realm of a human rights dispute. After the patients both passed away without a transplant, their relatives challenged the policies and decisions of the hospital and TGLN, on the basis that they violated the patients' rights under the Canadian Charter of Rights and Freedoms (or the Charter). The infringement of the right to equality and the right to life, liberty and security of the person were among the arguments raised by the families.
Are hospital decisions typically subject to the scrutiny of the Charter? Perhaps unsurprisingly, the answer is: it depends. The Charter only applies to the Legislature and the governmental bodies of each province, in respect of matters within their authority. It does not apply to private actors. This means that we can expect that government bodies, programs and policies will be subject to Charter review. For example, we can use the Charter to challenge a governmental decision that unfairly excludes a group of people based on race, age, gender or other factors. We cannot, however, challenge the decision of a local convenience store on that same basis – in this example, the Charter would likely not apply.[2]
However, when it comes to hospital decisions, the application of the Charter isn't as quite clear cut. Are hospitals governmental bodies? By most counts, they are not. They are not-for-profit, independent corporations, each run by their own board of directors. They are publicly funded and publicly accountable for their decisions through numerous pieces of policy and legislation; however, they are not strictly "governmental bodies," and therefore not broadly subject to the Charter. Yet, in the circumstances of this case, the Court chose to make an important qualification – that hospital processes about organ transplants may be subject to Charter scrutiny when that private activity of medical decision-making about organ transplants becomes sufficiently "governmental in nature." Whether the hospital's decision was sufficiently "governmental in nature" is yet to be determined as this case winds its way through the court system. In the past, courts have found that hospitals may act as agents for the government in providing specific medical services set out in the Canada Health Act,[3] and as such, that they will be subject to the Charter.
This particular case raises important questions about when a public hospital's otherwise private decisions or activities will become more "governmental" or "public" in nature – thereby attracting the scrutiny of the Charter. It may have broader implications for many other difficult decisions that hospitals must make where Charter rights may become involved, for example, in the context of medical assistance in dying, or where hospitals make operational decisions about cutting services or programs. The Ontario Hospital Association will be watching this case with great interest as it unfolds and will provide members with relevant insights and developments as they become available.
References
1. Williams v. Trillium Gift of Life Network, 2019 ONSC 615
2. That isn't to say that other human rights legislation might not be applicable – for example, some decisions might be challenged under the Ontario Human Rights Code, but the remedial outcomes under the Code are different (and sometimes less extensive) than those under the Charter.
3. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 62