Public Tort Liability Part Two

E Law/Murdoch University Electronic Journal of Law
December 1/2002

We recommended a new approach called public tort liability that we believe reconcile the advantages of both no-fault compensation and tort liability.

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Public Tort Liability: An alternative to tort liability and no-fault compensation Part I

E Law/Murdoch University Electronic Journal of Law December 1/2002

by Hassan El Menyawi LLB, BCL

In this article, we have sought to find a way to reconcile no-fault compensation and tort liability. 

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Quebec margarine battle continues

Janet Nauta

November 28, 2002

Quebec’s long-standing refusal to lift a ban on butter-coloured margarine is now being challenged on two fronts.

 

Quebec’s long-standing refusal to lift a ban on butter-coloured margarine is now being challenged on two fronts. Both the Ontario government and Unilever Canada are fighting to have Quebec remove this inter-provincial trade barrier.

Butter-coloured margarine has been illegal in Quebec since 1987, when legislation was enacted to protect Quebec’s 10,000 dairy farmers from competition. Quebec is the only province – and one of the few jurisdictions in the world – still enforcing a ban on coloured margarine.

In 1994, under the terms of the Agreement on Internal Trade (AIT), Quebec agreed to get rid of its margarine-colouring restrictions by September, 1997. However, it backed down from this obligation after an aggressive campaign by the powerful dairy lobby.

In April, after more than four years of non-productive negotiations between the Ontario and Quebec governments, the two provinces agreed to pursue a dispute resolution procedure allowed under the AIT. Manitoba, Saskatchewan and Alberta had agreed to support Ontario’s challenge of Quebec’s law. Unfortunately, Quebec has recently reneged on this commitment. Without the participation of both parties, the dispute process can not continue.

Unilever Canada Ltd. is also challenging the ban on coloured margarine in Quebec’s Court of Appeal. In March, lawyers for Unilever, argued that the regulation prohibiting butter-coloured margarine is discriminatory, protectionist, and contravenes interprovincial and international trade rules. Unilever is appealing a 1999 Quebec Superior Court ruling that upheld the ban, but admitted that the prohibition is protectionist and not necessary to prevent confusion among consumers.

Unilever, which makes Fleischmann’s, Monarch, and Becel margarines, says it incurs about $1-million annually in additional costs because of the ban, including the costs of having separate production runs and inventories for margarine shipped to Quebec from its plant in Rexdale, Ontario.

Although a decision in the Unilever case was expected in September, judges have not yet made a ruling. And the saga continues.

This is Janet Nauta, Communications Assistant for the Ontario Soybean Growers.

 

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The phoney MSA debate

Lawrence Solomon
National Post
November 28, 2002

The debate over medical savings accounts (MSAs) – the proposal to have government give each Canadian an annual health allowance to cover routine health needs – has largely been fought on economic grounds.

Its backers – the government of Alberta as well as organizations such as the Atlantic Institute for Market Studies and my own Consumer Policy Institute – claim medical savings accounts would save money and expand medicare by letting consumers, instead of the health bureaucracy, choose how their health care dollars are spent.

Its detractors – most of the health-care establishment, led by the University of Toronto’s Raisa Deber – say the savings wouldn’t materialize. In fact, she and other health policy administrators have produced counter-studies that claim medical savings accounts would financially gut the health-care system.

But the detractors’ financial claims are a sideshow to the real debate, as Raisa Deber freely admitted this weekend during a debate with me at the University of Toronto’s medical school, before a province-wide gathering of medical students. The health-care establishment’s deep-seated opposition to medical savings accounts lies in its opposition to giving patients choice.

“I submit – and Raisa, please correct me if I am wrong – that if medical savings accounts were proven to save money, Raisa would still oppose them, and so would most of Canada’s health establishment,” I told the audience. “They would oppose medical savings accounts because they wouldn’t trust patients to have so great a say in how health dollars are spent.”

Ms. Deber did not correct me. “Patients don’t want choice in deciding ‘what’s the right answer’,” she confirmed during the debate and in discussions after it. “Patients don’t want to deal with treatment options. They’re not in the least interested in problem-solving decisions.”

Ms. Deber’s opposition to giving consumers choice is not narrow, and limited to her field of expertise, but based on a broad and deeply held belief. Giving consumers choice in telephone services or hydro matters is also wrong-headed, she asserted during the debate. As part of her wide-ranging presentation, she staunchly defended the union movement, too, presumably because employers might want choice in whom they hire. So compellingly did she denounce enemies of the union movement, in fact, that the first question from the floor came from a student who attacked me for opposing union health-care jobs – a subject I have never broached.

Ms. Deber, a professor of health policy, management and evaluation and – next to Roy Romanow – medicare’s leading lobbyist, speaks from the heart when she claims consumers don’t want more responsibility over health-care decisions. Instead, she says, consumers want a relationship based on “trust in partnership” with their doctors, meaning that patients want to put themselves into the care of their physicians, and not have to deal with issues beyond their ken.

In some earlier, paternalistic time, perhaps that desire for an unquestioning, trusting relationship existed. But the evidence doesn’t support its existence today. Consumers are increasingly taking charge of their own health, as seen in the explosion of self-help groups, alternative therapies, medical Internet sites, home testing kits, and medical software programs that allow consumers to diagnose their own conditions by answering a series of yes-or-no questions. Health publications aimed at consumers have become one of the fastest growing segments of the publishing business. Increasingly, consumers are treating doctors as expert consultants, much as they treat other professionals in helping them arrive at their own conclusions about what course of action to take. Seeking a second or even third opinion – once almost a taboo that implied lack of trust in your physician – is now common.

This desire for control explains the public’s attraction to medical savings accounts, which would provide, in addition to hospital and other catastrophic care, generous health-care allowances that would not only cover routine health needs but also give consumers a measure of independence. According to an Angus Reid Group poll, two-thirds of Canadians “believe this system would ultimately promote better health for Canadians because the unused portion of the allowance could be used to pay for therapies not currently covered by medicare, allowing people to choose services more suited to their own health needs.”

Trusting your doctor, as trusting any professional, will always be important. But consumers no longer view doctors as selfless father figures who can be unquestionably trusted to put their patients’ interests above their own. Many consumers, particularly those in lower socio-economic spheres who don’t have the good connections sometimes required to get good service, now see doctors as impersonal and unaccountable to them. As a result, they have suffered most at the hands of our health-care system.

The experience of the less-well-connected also helps explain why so many people are attracted to medical savings accounts. By controlling the purse strings, a majority of Canadians believe they will develop more accountable and more personal relationships. For example, 54% agreed with the following statement: “Because we would be paying our doctors directly, the health allowance system would make my doctor more accountable to me, and foster a more professional and personal relationship between us.” That percentage rose among the young and among Canadians earning less than $30,000 a year, the group most in need of good care.

Ms. Deber, wishing away the data, disagrees: “Not only is controlling the purse strings not important to consumers, it’s the last thing that consumers want when they’re sick,” she insists emphatically, much as she insists the only actuarial study performed to date of medical savings accounts for Canada – by the international health-care actuarial firm of Milliman and Robertson – must be wrong.

In coming weeks, other economic studies are scheduled to be released on the economics of medical savings accounts. Of the ones I’m aware of, all have found medical savings accounts to be economically sound. While that won’t change many, if any, minds in the anti-medical savings account camp, it may change its focus, by forcing it to confront the heart of the issue: Can consumers, using their doctors as consultants, be trusted to make decisions affecting their own health?

Related articles by Lawrence Solomon :

Romanow’s nether regions

Empowerment is the best medicine 

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Empowerment is the best medicine

Lawrence Solomon
National Post
November 20, 2002

Does a positive mental attitude help patients beat cancer?

A study published earlier this month in BMJ, the journal of the British Medical Association, thinks not. The study – an analysis of 37 earlier studies that have examined the role of mental attitudes on cancer – reported that having a “fighting spirit,” as doctors refer to spunkiness in patients, doesn’t help them survive cancer or prevent its recurrence.

“We’re not saying it’s a bad thing,” lead researcher Dr. Mark Petticrew of the University of Glasgow told The New York Times last week, “only that if you don’t, it’s probably not going to affect survival.”

Similarly, the study – co-authored by Ruth Bell at the University of Newcastle in the U.K. and Duncan Hunter at Queens University in Canada – dismissed the consequences of having feelings of “helplessness/hopelessness,” which cancer studies had associated with higher rates of recurrence and death.

The motivation behind the study is noble – to spare cancer patients from overzealous psychologists and others intent on coercing patients into feeling good about their lot. Such coercion is often counterproductive, making patients feel guilty, and adding to their already immense burden, if they don’t put on a brave face. The study rightly deplores such medical intervention: “It has been suggested that clinicians need to detect coping styles such as helplessness and hopelessness and treat them vigorously. Our findings show that such interventions may be inappropriate.”

But in the authors’ zeal to protect patients from “feel-good-or-else” medical advice – medical attempts to “empower” patients – they have produced a dubious study. The authors didn’t base their conclusions on the findings of the 37 studies; they more dismissed the majority of the studies for failing to live up to ideal standards – either the studies were small, or they were potentially biased, or they had methodological flaws, or the relationships that some studies found between attitude and cancer weren’t found by others. In the real world, few studies are conducted under unimpeachable conditions, including the authors’ own study. In fact, even the basis on which they selected and dismissed studies was largely subjective, making their study a medical muddle that more resembled opinion than analysis.

The issue of whether a positive attitude helps beat cancer is part of a larger discussion, over empowerment. On the health benefits of empowerment there is no dispute. The medical world accepts that the more empowered people are – the more affluent they are, the better they are educated and the more they are in control of their lives – the longer and healthier their lives.

But what empowers? Can a doctor cajole or coerce a patient to feel free and in charge? On the face of it, such attempts are doomed to fail, even if the patients succeed in tricking others into believing they’re in control and coping well. Similarly, coercing patients into pretending that they are happy could also increase their sense of helplessness and hopelessness. This coercion may explain the poor results the authors noted in some of the 37 studies – although we won’t know until someone asks meaningful, instead of muddled, questions.

An immense amount is at stake in discovering the secret to empowerment: If the middle class became as healthy as the wealthy, for example, its gain in life expectancy would exceed that obtained by eradicating cancer. But although the medical world knows empowerment somehow relates to socio-economic factors such as affluence and education, it can only guess at the actual mechanisms or underlying factors at work.

And yet, despite the stakes, few of those who would reform health care – certainly not Roy Romanow, whose report is due next week – have promoted the empowerment of patients. The health establishment’s well-meaning emphasis, like that of the overzealous psychologists intent on exercising control over their patients, has been in controlling patients by controlling an ever-larger segment of the health industry. The establishment determines which medical procedures will be covered and when, which drugs will be available and when. It will spend money on patients’ behalf, but it will not give the patients the money to spend on their own behalf, despite the success that this approach has had elsewhere.

Related articles by Lawrence Solomon :

Romanow’s nether regions

The phoney MSA debate
 

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