Connie L. Mah, Author at LawNow Magazine
A Website of The Centre for Public Legal Education Alberta

LawNow Magazine

relating law to life

You are here: Home / Archives for Connie L. Mah

About Connie L. Mah

Connie L. Mah is a lawyer practising in Edmonton, Alberta.

Midwifery in Canada

By

382MidwiferyMidwifery is a health care profession distinct from nursing.  Midwives specialize in providing primary care to women during pregnancy, labour, birth and postpartum in relation to low risk prenatal, intrapartum and postnatal care.  They promote the natural birthing process of normal vaginal deliveries without drugs or surgical interventions, and are trained to handle low risk normal births as well as breech births and twin births.  They are trained to provide physical examinations, screening and diagnostic tests, and to assess the normal progress of pregnancy and birth, including detecting complications and making assessments of risks in mother and child, at which point they would refer the women to physicians.

History

Although midwifery had been practiced throughout history, some with formal training and some without, it was rejected as folk medicine in Canada and the United States in the early 20th century in favour of modern advancements in the medical profession.  Consequently, midwifery was either replaced by medical doctors (obstetricians) or regulated.

In Britain, midwifery legislation was implemented in England and Wales in 1902, Scotland in 1916 and Northern Ireland in 1918.  In 1925, the United States adopted a nurse-midwifery model from Britain, which was a combination of nurse and midwife, requiring training in both; although primary care for childbearing women continued to be provided by nurse-midwives, family nurse practitioners and physicians.

In 1976, the World Health Organization agreed with the International Council of Nurses and the International Confederation of Midwives that midwifery should be recognized as an autonomous discipline.

Midwifery in Canada

Starting in the 1990s, midwifery began to be legally recognized as a profession in certain Canadian provinces and territories by the introduction of provincial or territorial legislation to regulate midwifery.

In Canada, midwifery falls under provincial and territorial jurisdiction, and has only been recognized in relatively recent times.  Starting in the 1990s, midwifery began to be legally recognized as a profession in certain Canadian provinces and territories by the introduction of provincial or territorial legislation to regulate midwifery.  In 1994, Ontario and Alberta were the first provinces to implement legislation to regulate midwifery.  In Canada, the midwifery model promotes normal birth, women as the primary decision maker (by providing women with information so they can make informed decisions about the birthing process), and continuity of care (from pregnancy to postpartum).

Alberta

In Alberta, midwifery was legally recognized and regulated by the Midwifery Regulation, Alta. Reg. 328/1994, which was implemented under the Health Disciplines Act, R.S.A. 2000, c. H-2, as a result of the 1989 application by the Alberta Association of Midwives for designation under the Act.  The Act mandated that a health discipline association establish a governing body to, inter alia, manage its affairs and govern the registered members of the health discipline in accordance with the Act, regulations and bylaws in a manner that serves and protects the public interest; and establish examinations for the purposes of registration and renewal of registration, standards of conduct and competencies for registered members, standards for continuing competency, and develop and maintain standards of professional ethics for registered members. Midwives have been required to register with the Alberta Midwifery Disciplinary Committee to practice in Alberta since 1992. The College of Midwives of Alberta is the provincial regulatory body.

The Regulation, inter alia, details the criteria for registration of midwives; specifies standards of conduct of registered midwives; and provides for the establishment of a practice review committee and a conduct and competency committee.  It specifies the permitted activities and scope of midwifery in Alberta, which includes, inter alia:

  • providing counseling and education respecting childbearing;
  • carrying out assessments to confirm and monitor pregnancies and determine pregnancies at risk;
  • identifying  conditions necessitating consultation or referral to a physician or other health professional;
  • caring for a woman and monitoring the  fetus during labour;
  • conducting spontaneous vaginal births and taking emergency measures where necessary;
  • caring  for the newborn in immediate postpartum and of the mother in the postpartum period;
  • performing, ordering and interpreting screening and diagnostic tests in accordance with Schedule 1 of the Regulation; and
  • prescribing and administering drugs in accordance with Schedule 2 of the Regulation. 

The Regulation expressly limits the scope of the practice of midwifery as the primary health care provider to “normal” pregnancies, and mandates that midwives shall consult with physicians in accordance with the guidelines of the governing board if medical complications exist or arise during the course of midwifery care that may require management by a physician.

The mother’s birth options are at hospital, home or birthing center.  Midwives have been fully funded through the government since 2009 and there is no fee for service.

Ontario and British Columbia

In Ontario and British Columbia, the birthing options are at hospital or home, and midwifery is regulated and funded, and there is no fee for service.

In 1986, the Ontario government announced it would establish midwifery as a regulated part of the health profession. This was the consequence of a jury recommendation regarding the practice of midwifery that arose from a court case involving the death of a baby delivered by midwives.  Ontario was the first province to regulate midwifery in Canada, through the following provincial legislation:  Regulated Health Professions Act, 1991; Midwifery Act, 1991, S.O. 1991, c. 31; General, O. Reg. 240/94; Registration, O. Reg. 168/11; Designated Drugs, O. Reg. 884/93; and Professional Misconduct, O. Reg. 388/09.  Since the regulation was implemented in January 1994, in order to practice in Ontario, midwives are required to be registered with the College of Midwives of Ontario and must abide by its bylaws, with the exemption in the Acts for aboriginal midwives and healers (to use the title of aboriginal healer and to provide their traditional midwifery services to aboriginal persons or members of aboriginal communities).  The College’s vision statement of June 2001 stated that midwifery care in Ontario was defined by ongoing support for community-based midwives working in partnership with childbearing women and expressed a commitment to the accessibility of midwifery as a viable option for childbearing.

Following the charging in 1981 of a midwife of practicing medicine without a licence in British Columbia, and the 1993 International Confederation of Midwives Congress in Vancouver, the British Columbia government announced that it would legalize midwifery.  British Columbia implemented legislation in 1998 requiring registration of midwives in British Columbia, with an exemption for aboriginal midwives who were practicing in aboriginal communities prior to the legislation coming into force.  The College of Midwives of British Columbia is the regulatory authority overseeing midwives in that province.

In Ontario and British Columbia, the birthing options are at hospital or home, and midwifery is regulated and funded, and there is no fee for service.

Other Canadian Provinces and Territories

Midwifery is now regulated in all provinces and territories except for Prince Edward Island and Yukon where it is unregulated and unfunded, the only birth option with midwives would be at home, and mothers would pay for services of midwives.

Although New Brunswick proclaimed its Midwifery Act on August 12, 2010, and passed a general regulation, no midwives registered to practice and so in 2013, the province disbanded its midwifery licensing body to save money.

In Newfoundland and Labrador, midwifery is governed by the Health Professions Act, which was assented to on June 24, 2010; however, there are no licensed and practicing midwives in that province.

Although New Brunswick proclaimed its Midwifery Act on August 12, 2010, and passed a general regulation, no midwives registered to practice and so in 2013, the province disbanded its midwifery licensing body to save money.

The implementation of midwifery regulation in each of:  Quebec (1999), Manitoba (1997), the Northwest Territories (2003), Saskatchewan (1999), Nova Scotia (2006), and Nunavut (2008), mandated that midwives register with the regulatory bodies in these provinces or territories, as created by their respective legislation, in order to practice there.  Each province or territory implemented its own set of legislation to regulate midwifery within its own jurisdiction; and each established its own regulatory body (college or board) under their respective legislation.  Essentially, a midwife must register with the regulatory college or board in the province and territory that s/he will practice, and abide by the specific legislation and bylaws of the college or board, which sets out the scope of the practice of midwifery in that jurisdiction.  Midwives are required to obtain professional liability insurance through the Healthcare Insurance Reciprocal of Canada (HIROC).

Canadian National Organizations

The Canadian Association of Midwives (CAM) is the national organization of midwives whose mission is to provide leadership and advocacy for the profession of midwives.  It advocates that midwifery should be an essential part of primary maternity care in all provinces and territories; and works to improve women’s access to midwifery.

The Canadian Association of Midwives (CAM) is the national organization of midwives whose mission is to provide leadership and advocacy for the profession of midwives.  It advocates that midwifery should be an essential part of primary maternity care in all provinces and territories; and works to improve women’s access to midwifery.

The Canadian Midwifery Regulators Consortium is a network of all of provincial and territorial midwifery regulatory bodies.  Its mandate is to facilitate mobility across the provinces and territories; to advocate for access to a high standard of midwifery and to provide a forum for discussion of mutual concerns.  The Consortium created a website for internationally educated midwives to access information in relation to registration in the provinces and territories.  There are two bridging education programs for internationally trained midwives:   the Multi-Jurisdictional Midwifery Bridging Project to assist qualified midwives educated  outside of Canada to meet the requirements for registering and practising in British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia and the Northwest Territories; and the International Midwifery Pre-Registration Program which is a part-time nine-month bridging program for experienced international midwives, who have practiced in the last five years, are fluent in English, and who wish to practise in Ontario.

Midwifery Education in Canada

In 1993, the first midwifery training program was offered in Canada.  Currently, there are seven midwifery education programs offered, all being four- year baccalaureate level programs.  Two are offered in Western Canada (at the University of British Columbia in Vancouver and at Mount Royal University in Calgary, Alberta); three are offered in Ontario (at McMaster University in Hamilton, Laurentian University in Sudbury, and Ryerson University in Toronto); one is offered in Quebec (Universite du Quebec a Trois Rivieres); and one program offers an aboriginal midwifery baccalaureate (University College of the North in The Pas, Manitoba).  These programs are direct entry, meaning there is no nursing or other prior training required for entry.

 

Equitable Doctrines and Maxims

By

F2325Canadian law is mainly comprised of statutes (legislation enacted by Parliament and the provincial legislatures) and common law (the body of law developed through court judgments). In addition, there is the law of equity that permits a court to grant equitable relief where there is no relief at common law, and which includes its own doctrines and maxims.

Historical Background

Canadian law has its origins in England. e law of equity began emerging between the 13th to 17th centuries. The original Court of Equity (the Chancellor’s Court) provided extraordinary justice when it heard cases where there was no remedy or jurisdiction at common law, thereby creating its own body of law.

Originally, the Courts of Equity followed the broad notion of natural justice, and differed from the common law courts in that equity did not have fixed rules or strictly apply the doctrine of precedent (applying or following previous case law to determine the result in the case at bar). Thus, the Courts of Equity applied its discretion to grant equitable relief.

However, by the 17th century, the law of equity began developing principles and the Courts of Equity began exercising discretion to award extraordinary justice pursuant to precedent. Eventually, the English Judicature Act was passed to combine the common law and the law of equity, and to provide that where there is a conflict between them, the rules of equity prevail.

Jurisdiction of Courts to Grant Equitable Relief

There are similar provisions in Canadian provincial statutes requiring courts to concurrently apply the rules of common law and equity (for example, section 16 of the Alberta Judicature Act). Certain levels of courts have the jurisdiction to grant equitable relief.

For example, in Ontario, the Court of Appeal and the provincial Superior Court of Justice have the ability to apply equitable principles and grant equitable relief, but not the Small Claims Court; and in Alberta, Saskatchewan, and Manitoba, the Court of Queen’s Bench (the superior court in those provinces) has jurisdiction to grant equitable relief. In contrast, pursuant to provincial legislation in British Columbia, all courts have the jurisdiction to consider and grant equitable relief.

Thus, those seeking equitable relief must ensure they seek it from the level of court that has the jurisdiction to grant the relief sought.

Equitable Relief

Some forms of equitable relief are: declaratory orders (binding declarations of rights); relief against penalties; granting injunctions or specific performance; and awards of financial compensation for breach of confidence. In order to advance a claim in equity, the seeker of equity must first establish facts under which the law of equity applies. Where there is conflict between common law and the law of equity, the law of equity prevails.

Equitable Doctrines and Maxims

Although the granting of equitable relief is discretionary, it is not arbitrary. Instead, the law of equity developed equitable doctrines and maxims, which the court applies guide its exercise of discretion to grant equitable relief. There is no hierarchy of the equitable doctrines and maxims, meaning one does not trump another. The court applies all applicable equitable doctrines and maxims in weighing whether to exercise its discretion to grant equitable relief.

Some of the more common equitable maxims are:

  • those who come to equity must come with clean hands;
  • those who seek equity must do equity;
  • equity regards as done that which ought to be done;
  • equity follows the law; and
  • delay defeats equity.

Clean Hands

The clean hands maxim requires that those who come to equity must come with clean hands; that equity will not grant relief where the seeker of equity has committed a wrong.

The clearest example of this maxim can be illustrated by the defence of ex turpi causa, which means that an illegal contract cannot be enforced. In other words, a plaintiff cannot profit from committing a wrong. If the cause of action arises from an illegal contract, there will be no equitable relief available to a person seeking to enforce such a contract.

This maxim focuses on the past conduct of the seeker of equity, and requires him/her to demonstrate that he/she has clean hands. For example:

  • a plaintiff threatens his employer with blackmail, then seeks to enforce the terms of his employment contract;
  • a plaintiff seeks an injunction, but previously breached another injunction against herself; and
  • a plaintiff has acted in bad faith in relation to the defendant in relation to the issues at hand.

Those Who Seek Equity Must Do Equity

Equity requires those who seek equity to do equity. This maxim requires that the person seeking equitable relief must act fairly towards the person whom he/she seeks the relief against. This maxim deals with the future conduct of the seeker of equity, as the court may grant equitable relief to the plaintiff on such terms and conditions as the court deems appropriate. Thus, the plaintiff is obligated to fulfill such terms and conditions.

Equity Considers Done That Which Ought To Be Done

Another maxim states that equity regards as done that which ought to be done. This means that where a party was required to perform an obligation such as in contract law, equity would apply to consider the parties to be in the relative positions they would have been in if the obligation had been performed. As such, this maxim applies in favour of the party who was entitled to performance of a contract.

For example, where pursuant to a contract, John Doe was required to do something for Jane Smith but failed to do so, or completed only part performance of the contract, then equity would apply to place the parties in the positions they would have been in relative to each other if John Doe had actually completed his obligations. Thus, this maxim applies where the defendant was bound in equity to perform an obligation for the plaintiff and focuses on the effect or consequences that would have flowed from completion of the original contract.

Equity Follows The Law

The equitable maxim that equity follows the law explains that equity does not replace statute law or common law. Instead, equity applies where there is no remedy by virtue of statute or common law. However, equity must be consistent with statute or common law.

For example, this maxim applies where a trustee holds legal title to a parcel of land for the benefit of another (the beneficiary). In this case, the law recognizes that the trustee holds legal title, which at common law is unfettered legal ownership.

This means the trustee has all the rights of ownership including the rights to use, enjoyment, and disposal of the land. However, the trustee holds the land for the benefit of the beneficiary, thereby creating a trust. At law, a trust is an unexecuted use, a conveyancing device such that legal title is conveyed to the trustee to hold the land for the benefit of the beneficiary. Equity cannot operate to change the legal title from the trustee to the beneficiary, so equity imposes obligations on the trustee to act for the sole benefit of the beneficiary, thereby protecting the equitable rights of the beneficiary in that land.

Delay Defeats Equity

This maxim deals with the defence of laches to equitable relief. Laches means unreasonable delay such that the granting of relief would produce inequitable results.

Laches is more than mere delay, and instead implies neglect to do what ought to have been done. Thus, the maxim means that a party who delays in enforcing rights will not be able to seek equitable relief.

The equitable maxim that delay defeats equity is a general but not an absolute principle. For instance, the defence of laches does not apply where the plaintiff failed to enforce his rights because he was not aware of them unless the concept of constructive knowledge applies.

In this sense, the defence of acquiescence to equitable relief is related to the defence of laches. The defence of acquiescence applies to bar equitable relief where the plaintiff either affirmed or abandoned his right, thereby implying the plaintiff had knowledge of his right.

It should also be noted that the defence of laches and defence of acquiescence will not apply where the plaintiff does not in fact suffer any prejudice or change in position as a result of the delay itself.

Furthermore, the maxim of delay defeats equity will not apply where the conduct of the defendant is such as to render the success of the defence to be inequitable. For example, the defendant does not herself come to equity with clean hands because the delay was caused by the fraud of the defendant.

Indeed, in considering the defence of laches, the courts of equity consider whether such a delay was excusable or justifiable. The courts of equity look at factors such as:

  • what acts were done during the period of delay;
  • the degree of changes and how the parties have been affected during the period of delay; and
  • the underlying equitable principle of justice versus injustice.

Most notably, the courts of equity will not consider the defence of laches in a vacuum, but consider it in the context of all equitable principles and maxims in determining whether to grant relief or not.

Conclusion

The law of equity is as important in Canadian law as statute law and common law. It operates to provide equitable relief when there is a recognizable right but no remedy under the common law. The law of equity has developed over centuries to provide equitable doctrines and equitable maxims. These provide guidelines to the courts of equity in determining whether to exercise its discretion to grant equitable relief with the overriding objective of ensuring justice is met.

LawNow

Funded by

Connect

 
Font Resize
Contrast