Medical and Dental Care

Editorial Note - (1) The applicant McNamara alleged in this application that the institutional physician was not licenced to practice medicine in the Province of British Columbia (where the federal institution was located) and was consequently not duly qualified to practice in that province and that this amounted to a failure to provide "essential medical care" within the meaning of this regulation, by an "appropriately qualified professional in good standing" within the meaning of s.5.a. of Commissioner's Directive 207. Further, the applicant claimed that the doctor's refusal to refer him to another physician for an independent medical, because he lacked confidence in this doctor, amounted to a failure to provide "essential medical care" as per this regulation and was in breach of his ethics as reflected by the Canadian Medical Association Code of Ethics (based on the International Code of Ethics and the Declaration of Geneva (1948) developed and approved by the World Medical Association) and specifically accepted on February 1, 1973 by the Council of the College of Physicians and Surgeons for British Columbia, the licensing body for that province to which he could not complain under the provisions of the B.C. Medical Act because the doctor, not being licenced in B.C., was not a member of that college and the college therefore had no jurisdiction over him in that regard, The undisputed facts disclosed that the doctor had been on the temporary register of this college but his name had been removed for failure to pass the Medical Council of Canada examinations. The doctor was licenced in Saskatchewan which was one, if not the only, province in Canada that did not require passage of these examinations as a condition for obtaining a licence. The B.C. College had advised the doctor that he could work for the federal government as it was their policy not to exercise jurisdiction in that regard based on the advice of their legal counsel to the effect that the College's jurisdiction did not extend to federal employees and that s.91(28) of the British North America Act (1867) gave the federal government exclusive jurisdiction over penitentiary employees.

16. Every inmate shall be provided, in accordance with directives, with the essential medical and dental care that he requires.

*Judicial Consideration* -

McNamara v Caros and Mendes - [1978] 1 FC 451 (TD)
	- A prisoner brought an application under s18 of the Federal Court Act for an order of mandamus against the Director and institutional physician to compel the provision of essential medical treatment in accordance with this regulation and Commissioner's Directive 207. The application was dismissed as against the doctor because he was not a "Federal board, commission or tribunal" within the meaning of s2(g) of the Federal Court Act and against the Director because there was no evidence he appointed the doctor to be institutional physician or could remove him from it and consequently an order against him would not be effective. The Court assumed the doctor's employment to be governed by the Public Service Employment Act. RSC 1970, c P-32.

Editorial Note - (1) The applicant McNamara alleged in this application that the institutional physician was not licenced to practice medicine in the Province of British Columbia (where the federal institution was located) and was consequently not duly qualified to practice in that province and that this amounted to a failure to provide "essential medical care" within the meaning of this regulation, by an "appropriately qualified professional in good standing" within the meaning of s.5.a. of Commissioner's Directive 207. Further, the applicant claimed that the doctor's refusal to refer him to another physician for an independent medical, because he lacked confidence in this doctor, amounted to a failure to provide "essential medical care" as per this regulation and was in breach of his ethics as reflected by the Canadian Medical Association Code of Ethics (based on the International Code of Ethics and the Declaration of Geneva (1948) developed and approved by the World Medical Association) and specifically accepted on February 1, 1973 by the Council of the College of Physicians and Surgeons for British Columbia, the licensing body for that province to which he could not complain under the provisions of the B.C. Medical Act because the doctor, not being licenced in B.C., was not a member of that college and the college therefore had no jurisdiction over him in that regard, The undisputed facts disclosed that the doctor had been on the temporary register of this college but his name had been removed for failure to pass the Medical Council of Canada examinations. The doctor was licenced in Saskatchewan which was one, if not the only, province in Canada that did not require passage of these examinations as a condition for obtaining a licence. The B.C. College had advised the doctor that he could work for the federal government as it was their policy not to exercise jurisdiction in that regard based on the advice of their legal counsel to the effect that the College's jurisdiction did not extend to federal employees and that s.91(28) of the British North America Act (1867) gave the federal government exclusive jurisdiction over penitentiary employees.
	On behalf of the doctor and the Solicitor.General's Department it was contended that his employment was governed by the Public Service Employment Act, A.S.C. 1970, c. P.32 and the regulations thereunder, which authorize the Public Service Commission to prescribe "selection standards" for various categories. The standards prescribed by the Commission for the "medicine group" simply require the doctor to be eligible for a licence to practice in a province in Canada, but then go on to state that for some positions, eligibility for license to practice medicine in the province of Canada in which the position is located may be mandatory.
	On behalf of the doctor and the Solicitor.General's Department it was contended that his employment was governed by the Public Service Employment Act, A.S.C. 1970, c. P.32 and the regulations thereunder, which authorize the Public Service Commission to prescribe "selection standards" for various categories. The standards prescribed by the Commission for the "medicine group" simply require the doctor to be eligible for a licence to practice in a province in Canada, but then go on to state that for some positions, eligibility for license to practice medicine in the province of Canada in which the position is located may be mandatory.
	At this time, however, the question remains unsettled and persons interested or affected by this issue should have regard to the following:

	(a) As to the constitutional jurisdiction of the provinces over the regulation of professionals see: -Steen v. Bramham (1964), 50 W.W.A. 512 (Sask. Dist. Ct.); -Beaule et al. V. Corporation of Master Electricians of the Province of Quebec et al. (1970), 10 D.L.R. (3d) 93 (Que. C.A.); -Regina v. Buzunis (1972), 26 D.L.R. (3d) 502 (Man. C.A.); -Re Imrie and Institute of Chartered Accountants of Ontario (1972), 28 D.L.R. (3d) 53 (Ont. H.C.); -Re Levkoe and R (1977) 18 OA (2d) 265, 37 CCC (2d) 356 (Ont Div Ct)

	(b) The provisions of the Medical Act in the Province where the prison is located usually making registration and licencing mandatory before being able to practice in the province and making it an offence to do otherwise.
	(c) The legislation and rules governing the local professional association and licencing bodies including provisions for complaints against physicians and the applicability of the Canadian Medical Association Code of Ethics.

(2) This case was not appealed because shortly thereafter the applicant was released on parole and was able to obtain the medical attention he required outside the walls, and any appeal would arguably have been academic or moot. However, out of a concern for other prisoners facing the same problem with this particular doctor and a desire to resolve the issue he laid a private information under the B.C. Medical Act, A.S.B.C., 1960; c.239, charging the doctor with practicing without a licence. The information was quashed by Kelly, Provincial Court J. in Matsqui Provincial Court, as being a nullity for failing to specify the "means" of practicing and the person upon whom he practiced (the applicant/informant) and this decision was upheld on appeal to the County Court of Westminster -McNamara v. Mendes, Unreported, Co. Ct., Westminster, No. 177/78, July 24, 1978. An appeal to the B.C. Court of Appeal was abandoned once the Corrections Services of Canada agreed to ensure that doctors to be licensed within the Province.
(3) As a matter of practice, to avoid the technical problems encountered by McNamara, it is recommended that the Commissioner of Corrections always be named as a defendant or respondent in actions of this nature unless the matter is clearly and specific- ally within the jurisdiction of the institutional director.
(4) Another issue that arises by virtue of this regulation which was argued but not decided touches on the status of Commissioner's Directives when incorporated into a regulation. Does this make the directive part of the regulation so as to give it the force of law? See comments under s.29(3) of the Penitentiary Act regarding the status of Directives generally and the cases cited thereunder. Similarly, the question arises as to the legal status of "selection standards" prescribed by the Public Service Commission under the Public Service Employment Act.
(5) For a further discussion of the medical treatment of prisoners see also:

	(i) Vandervort, Legal Aspects of the Medical Treatment of Penitentiary Inmates (1977), 3 Queen's Law Journal 368.

	(ii) A. Price, Bringing the Rule of Law to Corrections (1974), 16 Can. J. Corr. 209.

	(iii) Kaiser, The Inmate as a Citizen: Imprisonment and the Loss of Civil Rights in Canada (1971), 1 Queen's Law Journal 208 at 234-240.

	(iv) Benjamin and Lux, Solitary Confinement as Psychological Punishment (1977), 13 California Western Law Review 263.

	(v) Standard Minimum Rules for the Treatment of Prisoners and Related Recommendations, United Nations, Department of Economic and Social Affairs, 1958, New York.
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