Health Care and Access to Patented Technologies

Access to Myriad Genetics' patented breast cancer genes and genetic tests is used as a case study for examining international law as well as Canadian legislation and case law relevant to access to health care. The case study is applied to two scenarios: access to existing treatments and access to future treatments. In the former, the analysis focuses in particular on Canadian jurisprudence on the issue of medical necessity as well as the role of financial considerations in section 1 Charter analyses after findings of discrimination under section 15 in health law cases. The considerations used by the courts in these cases are then applied to the situation of litigation for funded access to a patented genetic test. In the latter, the case study highlights how gene patents may encourage or hinder further research.