Statutory Good-Faith Immunity for Government Physicians: Cogent Policy or a Denial of Justice?
Abstract
Recent events such as the SARS outbreak and the controversy over pediatric forensic pathology in Ontario have increased awareness and scrutiny of physicians employed by the government, including medical officers of health, coroners, and pathologists. At common law, physicians are held to a standard of care that can be summarized as reasonable professional competence. Statutory provisions effectively neutralize this standard of care for government physicians by providing civil immunity so long as they act in “good faith”. The appropriate-ness of this protection from civil liability is assessed in this paper.The author argues that statutory good-faith immunity is inconsistent with the requirements that these positions be held by licensed doctors; indeed, it is a common provision of legislation for government employees that is not appropriate to the special case of government physicians. The Ontario statutory and case law is canvassed in relation to the powers and duties of coroners, forensic pathologists, and medical officers of health. It is then demonstrated that this statutory good-faith immunity is applied to the vast majority of public actors in Ontario. Within this context, the historic and current policy rationales for the immunity are assessed with reference to the recent judgments of the Supreme Court of Canada and the Ontario Court of Appeal establishing a tort of negligent investigation by police. The author then assesses how the common law of tort would apply to government physicians if these provisions were repealed.
