A submission for interpretation of section 12 of the Pension Act, by the Canadian Pension Commission.
June 20, 1978
T.R. Giles, Counsel, The Canadian Pension Commission
L.M. Hanway, Deputy Chief Pensions Advocate, The Bureau of Pensions Advocates
Col. A.D. Mitchell, Department of National Defence
Sgt. E.W. Wilmore, The Royal Canadian Mounted Police
Pension Act section 12.
Medical misadventure. Malpractice. Inadequate medical care. Negligence. Pensionability arising therefrom. Pensionable when negligence involved.
This petition came about as a result of an opinion from the Department of Justice relative to malpractice and medical misadventure, dated September 25, 1975. As a result of this opinion, the Canadian Pension Commission changed its policy respecting claims, a policy which the Pension Review Board did not agree. As a result of the disagreement, the Canadian Pension Commission requested a firm ruling of interpretation from the Pension Review Board.
That where there appears a disability from adversed complications or "medical misadventure" the disability is pensionable if it is a result of inadequate medical care, inadequate medical attention, inadequate medical management or omission to take remedial action or some other form of negligence.
In its discussion of the matter, the Board made a distinction between members of the Regular force and members of the R.C.M.P. Force.
With regard to members of the Regular Force, if a serviceman is being treated for a service-related disability, any complications are to be considered as part and parcel of the service-related disability and therefore the matter becomes one of assessment.
However, if a disability is not service-related but flows from an act of negligence, the disability that results from the act of negligence is a separate entity from the original disability. Therefore, the act of negligence may create a new disability or contribute to the aggravation of the disability under treatment.
The mere fact of "misadventure" or "medical misadventure" is not sufficient to grant pension if the doctor or hospital was not, at the same time, negligent, since medicine is not an exact science and most treatments, particularly surgical interventions, involve an element of risk. Thus, if treatment is given in an orthodox manner with reasonable care and competence, the medical misadventure cannot be said to be entirely unforeseen and is part of the risk involved. On the other hand, if the disability from medical misadventure arose from inadequate medical care, inadequate medical attention, inadequate medical management or omission to take remedial action, it is pensionable. This, therefore, involves a degree of negligence. The mere fact that the treatment is not successful does not bring it within the provisions of subsection 12(2). The common denominator in all pensionable medical misadventures is the involvement of an element of negligence.
Insofar as the R.C.M.P. is concerned, if the condition or injury being treated did not itself arise out of R.C.M.P. service, there can be no pension granted since R.C.M.P. officers are normally treated by their own doctors and not by the Force. The Force has no control over the treatment. Any disability that results from medical misadventure, inadequate care, or negligence cannot, therefore, be said to be directly related to R.C.M.P. service.
If, on the other hand, the disability being treated is service-related and it is aggravated by medical misadventure, it then becomes a matter of assessment of the total disability.
In summary, disability or death resulting from negligence of or inadequate medical care provided by, Regular Force service or service authorized personnel, or from medical misadventure, is pensionable under subsection 12(2) of the Pension Act.
In cases adjudicated under the R.C.M.P. Pension Continuation Act or R.C.M.P. Superannuation Act, disability or death that results from negligence, or inadequate medical care, or medical misadventure, is not pensionable under the provisions of subsection 12(2) of the Pension Act.