UTGB Vol 5.pdf - Robson Hall Faculty of Law

or prevailing practice. The likely result of the first distinction-the requirement
for "evidence to proven versus the requirement to "demonstrate"-is that it
creates a lower evidentiary threshold for showing the alternative therapy poses a
greater risk to the patient than the conventional therapy, thus enhancing the
scope for removing a physician's licence for administering the alternative
treatment
The second amendment also replaced the risk to patients' ''health" with the risk
to patients' "health or safety", relating to what may be demonstrated when
attempting to show that the physician's use of the alternative therapy posed a
greater risk than the conventional therapy. The effect of this amendment
appears to be significant. First, it provides a wider scope for finding that a
patient has been harmed by the alternative therapy. Second, Mr. Derkach's
original version may be interpreted to mean that, if the alternative therapy
prescribed in the place of a conventional therapy maintained the status quo of
the patient's health without posing a greater risk to their health, even though
the conventional therapy could have improved the patient's medical status,
then it is likely the physician would fall within s. 36.1. escaping professional
discipline. In other words, the use of the words "risk to healthn could be
interpreted such that maintaining, but not improving, a patient's health, is
within the confines of the protection ins. 36.1. By adding the word "safety,"
however, this inference may be more difficult, though still not impossible, to
make, as maintaining the status quo through the use of an alternative
treatment, without enhancing the patient's health despite the existence of a
conventional therapy that could, is more likely to be interpreted by the courts
as impinging on the patient's safety. The addition of "safety" also provides a
more holistic approach to determining whether there are any negative impacts
of the alternative therapy on a patient's wellbeing.
Third, unlike Mr. Derkach's original version, the amendment proposed by
Minister Sale does not contain "regulations and by laws" in the list of provisions
from which a physician is protected from discipline by virtue of s. 36.1. In other
words, whereas Mr. Derkach's version permitted a physician to escape
professional misconduct sanctions despite s. 36, Parts VIII to X, and the
regulations and by....laws, Minister Sale's adaptation, now included in the MA,
only lists s. 36 and Parts VIII to X. The effect of this amendment is also
significant in that, presumably, the Lieutenant-Governor in....Council can pass
regulations delineating the process physicians must follow when prescribing
alternative therapies, and the CPSM can pass by....Iaws and statements affecting