Preface
Medical law is an established discipline in modem jurisprudence.
Just as other areas of law, such as labour law and commercial law,
have acquired distinct juridical integrity, so has medical law be-
come a discrete body of issues, doctrines and, to some extent, rules.
Yet the province of medical law remains largely undetermined, and
new categories are continually opened as problems in medical care
force the law to provide reason and guidance.
The complexity of medical law has also attracted the kind of
enthusiasm that may propel this discipline to such intense speciali-
zation that it will become opaque to the examining eye of the gen-
eral practitioner in law or medicine, to say nothing of the curious
layman. The significance of medical law in contemporary juris-
prudence is as evident in the proliferation of relevant legislation
and case-law as it is in specialized books, periodical publications
and academic courses on the topic. The Editorial Board of the
McGill Law Journal hopes that the contents of this issue on medical
law will be of interest to experts and unspecialized readers alike.
It is neither a primer nor an encyclopedia on medical law in Canada,
but a selection of papers that are variously general, speculative
and highly analytical.
Many fundamental matters in medical law are unresolved. Hence
this special number includes an array of articles on such well-
worked but unexhausted themes as informed consent, experimen-
tation and research on human beings, the liability of hospitals and
the autonomy of mentally disabled or terminally ill patients. There
is also a fair balance of theoretical and practical discussion, as is
shown in the two contributions by Mr Bernard Starkman. One is
a note on the history and interpretation of section 45 of the
Criminal Code,’ and the other a comment on Re Eve,2 a complicated
case which concerns the proposed sterilization of a mentally retard-
ed woman and which, at the time of writing, is on appeal before
the Supreme Court of Canada.3 The confidentiality of medical re-
‘R.S.C. 1970, c. C-34.
2 (1980, 1981) 115 D.L.R. (3d) 283 (P.E.I.S.C. in banco), rev’g (1979) 10 R.F.L.
(2d) 317 (P.E.I.S.C.) per C.R. McQuaid J. This curious citation to the appellate
decision is intended to denote that supplementary reasons to the decision
rendered in July, 1980 were issued by the same Court in January, 1981.
3 Leave to appeal to the Supreme Court of Canada granted by the Supremne
Court of Prince Edward Island on 29 May 1981; notice of appeal filed in the
Supreme Court of Canada on 18 June 1981.
McGILL LAW JOURNAL
[Vol. 26
cords and the administration of public health insurance schemes
are major topics not considered in this number.
The complexity of issues in medical law reflects their ethical
gravity and their controversy in public opinion. Ethical questions
are taken up throughout these pages, not least in the article by
Professor Jean-Louis Baudouin and the comment by Mr E.W. Keyser-
lingk, but the scope and gravity of medical ethics are most poignant-
ly illustrated in the play that is the focus of our theatre section.
This section not only demonstrates the innovative approach to legal
publishing at McGill but it affirms that art, “nature to advantage
dress’d”, can epitomize the challenges commonly faced by law
and medicine and force them to a crisis for instruction and aesthetic
pleasure.
This special issue was long and hard in gestation, partly as a
function of its size. The Editorial Board extends sincere thanks to
its contributors, some of whom have been waiting more than nine
months to see the publication of their work. The Journal’s staff has
attempted to ensure that citations are current to 1 July 1981.
The Editors also wish to express their appreciation to the Faculty
of Law, McGill University, The Samuel and Saidye Bronfman Family
Foundation and The Social Sciences and Humanities Research
Council of Canada for their generous financial assistance; and to
Professor Paul-A. Cr6peau, Director of the Institute of Comparative
Law at McGill University, and Professor Margaret Somerville of
McGill’s Faculty of Law and Faculty of Medicine, for their keen
cooperation and assistance in the organization of this number.
Finally, it is a pleasure to acknowledge the patience and kind
support of Professor Y.-M. Morissette and Dean J.E.C. Brierley of
the Faculty of Law, McGill University, without which this enterprise
might have foundered.
Patrick Healy
Editor-in-Chief, 1980-81
La responsabilit6 civile de r’tablissement
hospitalier en droit civil canadien
Paul-A. Cr6peau, o.c., c.r.*
Le r6le de 1’6tablissement hospitalier, ses devoirs et responsabilitds,
ont consid~rablement 6volu6 au cours des derni~res d6cades.
– M. le juge Lajoiel
Synopsis
Introduction
Premire partie: Le cadre juridique de Ia responsabilitd hospitalire
I. La notion d’entreprise hospitalire
A. Conception traditionnelle de l’6tablissement hospitalier:
une auberge spdcialisge
B. Conception nouvelle de la fonction hospitali re:
une entreprise de soins m~dico-hospitaliers
1. Reconnaissance juridique de l’entreprise hospitalibre
a. Consdcration ligislative
b. Consdcration jurisprudentielle
2. Origines sociologiques de I’entreprise hospitalibre
a. Motifs d’ordre scientifique
b. Motifs d’ordre social
II. Le fondement juridique de la responsabilitd hospitalibre
Deuxibme partie: Les r6gimes juridiques de la responsabilitd
hospitalibre
I. Le rdgime contractuel de responsabilitd hospitalibre
A. Conditions de la responsabiliti hospitalire contractuelle
1. Existence du contrat hospitalier
* De la Soci6ti
royale du Canada; Wainwright Professor of Civil Law, et
Directeur de 1’Institut de droit compare et du Centre de droit priv6 et com-
pare, McGill University; membre du Conseil el’administration de l’H6pital
Notre-Dame de MontrEal.
I Voir H6pital gdndral de la Rdgion de l’amiante Inc. v. Perron [1979] CA.
567, h la p. 574.
