Law326 Modules (4-11)
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Module 4 –
Introduction to Ethics Ethics – what and why? What is ethics
? -
The study or evaluation of human conduct in the light of moral principles (can be viewed as the standard of conduct that an individual has constructed for themselves)
Why discuss ethics? -
Healthcare professions that are concerned with curing illness, relieving suffering, and caring for people are ethical professions.
-
The existence of illness necessitates a relationship of dependence on a healthcare professional who is obligated to act in the patient's best interest in a way that respects the patient's unique experience of illness. -
Ethical does NOT mean complying with the law Paternalism -
It is an issue at the basis of many ethical debates -
It occurs when a health care professional takes it upon themselves to limit/restrict/construe the information provided to a patient. -
In certain situations, they do so without the patient’s consent. Major Ethical theories
-
Two dominant trends: Consequentialist ethics: Utilitarianism is the most well-known -
Focuses on the consequences of actions -
The duty is right if the consequences are right -
Utilitarianism is the most well-known form of consequentialist ethics. -
One should act in order to maximize the greatest good or happiness for the greatest # of people. -
Critics of this ethical theory often focus on what they consider the hedonistic quality of equating utility with pleasure
Deontological ethics
: Denotes from the Greek word duty
-
a duty which one thinks should be universally applied to all is mandatory regardless of the consequences.
-
It does not direct us to assess details of people or situations -
They hold despite consequences (you cannot hurt another in self-defence)
-
Everyone gets the same treatment no matter the expectations for the outcome Right- based ethics -
A legal right to access your publicly funded health system is granted to all Canadians under the Canada Health Act, R.S.C 1985 -
The rights-based ethical theory reflects our intuition that we have certain things as a matter of right, and this cannot be violated. Negative rights
– correlate with duties to refrain from doing something (privacy rights, secure against unreasonable search or seizure) Positive rights – correlate with duties to help in some manner (healthcare professions are bound to help someone who claims a right to healthcare. (right to housing)
Legal rights
– justified by legal principles and/or rules, moral rights by moral rules Violation of rights – unjustified action against a right Infringement of rights
– a justified action which overrides a right
Medical ethical principles 4 medical ethical principles… 1)
Autonomy o
This stands for political self-governance in the city-state. o
Respect for personal autonomy equates with personal self-governance or personal control
o
Example: patients are generally encouraged to be involved as much as possible in their care 2)
Beneficence
o
The obligation to do good connects to utilitarian theory o
Act to prevent harm to do good 3)
Non-maleficence o
The duty to do no harm o
Do no harm o
Ex: I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect.
There is a fiduciary (legal or ethical relationship of trust) relationship between healthcare professionals and the patient that demands beneficent acts. 4)
Justice o
Concepts of fairness, desert (punishment and redistribution), and entitlement (distribution) o
Fair, due, or owed Distributive justice: the proper distribution of social benefits & burdens, refers to primary social goods
Formal equality: alike cases should be treated alike Case law
– look at the cases from various ethical perspectives (4 principles) Rodriquez v. British Columbia [1993] 3 S.C.R 519 -
The SCC upheld the prohibition on assisted suicide -
They ruled it was constitutional and justified for the protection of vulnerable individuals who might be influenced to end their lives in moments of weakness -
The majority opinion held that the blanket prohibition was necessary to protect life and prevent its depreciation by allowing it to be taken
-
Section 7 of the Canadian Charter of Rights and Freedoms and any potential breach was justified under Sec1 of the charter
-
The decision established that while competent individuals have the right to refuse treatment and thereby choose death, they do not have the right to obtain assistance from others to end their life Policy aims under consequentialist ethics theory -
The BCCOA emphasized the ethical distinction between palliative care and physician-assisted suicide. There is a fine line between the two that should only be crossed by the courts. -
The court highlighted the medical profession's position that the intent behind administering drugs for pain relief differs from setting up a system for patients to end their lives. Until Parliament addresses this ethical dilemma after consulting with medical professionals and other stakeholders,
the court believed it should not overstep the Charter and concluded that physician-assisted suicide
should be allowed. Winnipeg Child and Family v. G -
A pregnant woman addicted to glue sniffing, with 3 previous children becoming permanently disabled due to her addiction, was ordered into custody for treatment until the birth of her child. -
The COA overturned the decision, stating that the existing law did not support such an order and the issue was best addressed by the legislature rather than the courts.
-
The SCC dismissed the further appeal, stating the unborn child was not considered a person with rights as it had no existence apart from the mother at that stage.
R. v. Latimer -
Saskatchewan farmer killed his daughter, 12-year-old Tracy, who suffered from severe cerebral palsy, was quadriplegic and had the mental development of a four-month-old, only able to communicate by facial expressions, laughing and crying.
-
It was not so much whether it was a crime but whether the court's responsibility was to enforce a statutory sentence of life imprisonment without possibility of parole for 10 years. B
. (R). v. Children’s Aid Society of Metro Toronto -
Jehovah’s Witness's parent's child needed a blood transfusion, but the parents refused to present consent. There was a temporary wardship order that allowed CAS to consent to treatment.
-
Reached the SCC majority rules the parent’s liberty interest was infringed under section 7 of the Charter, it was justified by principles of fundamental justice o
Parents have a protected sphere of decision-making for their children; their ability to deviate from medical recommendations in the child’s best interests is limited. Discussion #4 1. Consider whether overriding refusals of treatment by patients (e.g. Jehovah’s Witness patient’s refusal, on religious grounds, of a blood transfusion) constitutes a) a violation of a right or b) an infringement of a right.
c) Consider an opposing argument: whether or not this action would constitute medical paternalism. Make sure you have included your opinion with support on all 3 of these (violation of a right, infringement of a right or paternalism. (See "Rights Based Ethics" for help distinguishing violations and infringement).
The issue presented of overriding refusals of treatment by patients, more specifically in the case involving the Jehovah's Witness religious objection to refusing blood transactions, is a very complex ethical dilemma. It is essential to balance respecting the right to self-determination and ensuring one's health and safety. Looking at the realm of medical ethics, a violation of rights signifies that there is a disregard for a fundamental ethical principle or a legal right. Regarding this case, there could be a consideration of a violation of a patient's right to autonomy, primarily since it's based on religious beliefs and reasoned from the fact that a healthcare provider was to ignore a patient's refusal of treatment against their will. Autonomy is a cornerstone of medical ethics, acknowledging patients' authority to make decisions regarding their bodies, even if these choices diverge from medical recommendations. Further on, infringement of a right occurs when there is a valid reason to restrict someone's rights in specific situations. Referring to the Jehovah's Witnesses' decline in blood transfusions; a healthcare provider may argue that administering one can be crucial to saving a patient's life. Refusing treatment can be seen as an attempt to undermine a patient's autonomy; overriding it can be deemed justifiable as there may be concerns for a patient's well-being. Medical paternalism involves healthcare professionals making decisions for patients without informed consent, perceiving it to be in the patient's best interests. Disregarding a patient's rejection of treatment could also amount to medical paternalism if carried out without their consent and against their wishes. Whether overriding refusals of treatment by patients constitutes a violation of a right, an infringement, or a right to paternalism depends on the situation's particulars and the patient's capacity for decision-making. As previously stated, patient autonomy and the right to self-determination are the cornerstone of medical ethics; however, this principle must be weighed against one obligation toward the patient's well-being. Therefore, any decision that is made to override
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treatment should be made very carefully, not only involving ethical committees but also adhering to legal and ethical guidelines. 2. Consider the Winnipeg Child and Family case. Relying on the ethical theories and principles discussed within this module as a framework for your answer discuss the ethical concerns raised in this case. (See module page “Winnipeg Child and Family v. G.”)
Autonomy: The breach of confidentiality in this case directly violates G.'s autonomy. Autonomy, in the medical context, refers to a patient's right to self-determination and decision-making regarding their own healthcare. In this case, G. was not given the opportunity to make informed decisions about the disclosure
of her information. Respecting autonomy means involving patients as much as possible in decisions about
their care, which was not done in this situation.
Beneficence: The principle of beneficence requires healthcare professionals to act in the best interest of their patients and to prevent harm. However, in this case, the social worker's actions did not align with beneficence. By disclosing G.'s sensitive information without her consent, the social worker potentially caused harm by exposing her to judgment and stigma. Additionally, the disclosure did not serve G.'s best interests but rather prioritized the interests of the organization.
Non-maleficence: Non-maleficence emphasizes the obligation to avoid causing harm to patients. The breach of confidentiality in this case directly violates the principle of non-maleficence. By disclosing G.'s information without her consent, the social worker breached the trust and confidentiality that are essential
for the therapeutic relationship. This action not only caused potential harm to G. but also undermined the integrity of the social work profession.
Justice: Justice in the medical context involves concepts of fairness and proper distribution of resources and benefits. While the breach of confidentiality in this case may not directly relate to distributive justice, it does raise concerns about fairness and the proper treatment of individuals. G. was not treated fairly or respectfully when her confidential information was disclosed without her consent, highlighting a failure of justice in this situation.
In summary, the Winnipeg Child and Family case can be analyzed through the lens of the four medical ethical principles, highlighting the ethical concerns raised by the breach of confidentiality and the importance of upholding principles such as autonomy, beneficence, non-maleficence, and justice in healthcare practice.
Part B: *For each of the following situations, consider its ethical implications and incorporate two
ethical theories from the module, noting any additional information you might need in order to resolve the situation if you think that is necessary.
1.
A patient requests treatment that the healthcare professional considers futile or non-beneficial.
Looking at this situation from a utilitarian perspective, the action of providing furtile or non-beneficials treatment can be evaluated on the basis of its consequences. As we learned, utilitarianism seeks to maximized overall well-being or happiness for the greatest number of people. A healthcare profession in this situation may consider the potential suffering that furtile treat could cause or the allocation of resources that could be better used for patients who could benefit from them. utiliitarism might support that withholding treatment in certain case where its deemed furtile or non-beneficial to avoid the
unnecessary hard and continue to maximize wellbeing. Additionally, deontological ethics tends to prioritize principles and duties regardless of outcomes. In this situation healthcare professionals might weigh might weigh beneficence (doing good) and non-maleficence (avoiding harm). One could argue that
futile treatment contradicts beneficence, lacking benefit and risking harm breaching non-maleficence by exposing the patient to unnecessary risks. Hoever, obtaiing more details about a patietns medical status, prognosis, and care goals is a very critical part for informed decision-making. Consulting with colleagues,
ethics committess or even involving the pateints and family can help to aid in a thoughtful resolution. 2.
Do Not Resuscitate (DNR) Order is written without the agreement of the patient or substitute decision maker.
Writing a DNR order without the patient's agreement or a substitute decision-maker can be justified if it prevents suffering and preserves resources for others. However, utilitarianism prioritizes overall well-
being, respecting the patient's wishes, and avoids vain interventions. When emphasizing patient autonomy, deontological ethics requires involving patients or their substitutes in care decisions; writing a DNR order without consent risks the violation of autonomy and self-determination. Proving why obtaining informed consent would remain a priority despite potential utilitarian drawbacks. To solve this kind of issue, it is vital that the healthcare profession acquire more details on the patient’s wishes, values and care goals, which is why Consulting the patient or their substitute, alongside considering advance directives and legal obligations, is crucial for ethical resolution.
A patient expresses a wish to die and requests medication.
Granting a patient's request for end-of-life medication might align with utilitarianism if it can reduce overall suffering and promote well-being for the patient. If a patient's suffering is intolerable and their quality of life is severely diminished, euthanasia or assisted suicide could be justified to alleviate their pain. Similarly, prioritizing autonomy and beneficence, deontological ethics would be goosing a healthcare profession to consider the patients right to make decisions about their life. They must not forget to uphold their duty to do good and prevent harm therefore exploring alternatives like palliative care and ensuring comprehensive support services may be necessary. Additionally gathering certain details about the patients medical conation and reasoning for their request is crucial because if a helacaree
profession is able to understand their values, beliefs and care goals they can make decisions to align with their wishes. Module 5 –
Regulation of the health professions in Ontario
Regulation
-
Legislation limiting the practice of certain jobs to those with specific training, education, and credentials and governing the practice of these jobs to protect public safety as we as to ensure that
work is done ethically. o
A tool that allows governments and other policymakers to establish norms to which health professionals must adhere (scope of practice and standards of practice) Self-regulation -
Self-regulation is the regulation by the profession of its own members -
Provides greater expertise and technical knowledge of practice than independent agencies. o
Peer pressure can help to ensure colleagues feel the pressure to adhere to standards and rules set by their profession. o
Administrative costs are internalized by the profession rather than passed on to taxpayers.
o
There should be flexibility with rules adjusted to meet the public's changing expectations.
-
Contemplates ethical standards of conduct that extend beyond the law and raise the standard of behaviour
Criticisms of self-regulation -
Failure by the various self-regulating organization to ensure profession competence of the profession to protect patients -
There is a perception that self-regulatory standards are weak, their enforcement ineffective and that punishment is secret and mild. Types and theories of self-regulations Types of self-regulation Input regulation -
focuses on who may be admitted to membership into a profession through licensure and is though
of as being proactive. o
Licensure will follow a school component (university followed by a further regulated college education component, including one or more exams) Output regulation -
Focuses on performance by those in the profession (civil liability, monitoring and discipline of health professionals, external assessment) Theories of self-regulation -
Regulation of health professionals if often said to be subjected to analysis between “public” & “private” theories Public interest theory -
Regulation is developed to further the “public interest” (public interest is dependent on those who
exercise power in society and provide for its definition or lack thereof) -
Criticism is compounded by doubts regarding expertise, objectiveness, efficiency, and competency of regulators Private interest theory -
They were developed to address the demands of private interests (health professionals themselves
and perhaps others with influence).
-
They rely on the assumption that individuals act to advance their self-interest and do so rationally
o
Ex: in Ontario dentists have tried to prevent dental hygienists from forming independent practice Serving public interests -
The legislative intent for regulation of health professionals is primarily based on serving the public interest, including (protection from harm, quality of care, accountability, equity and equality) Regulation of Health professions -
The Regulated Health Professions Act of 1991 came into force on December 31, 1993. It enabled legislation for the self-regulation of health professions in Ontario
-
Key purpose: protect the public interest and provide the public with assurances of appropriate and
quality healthcare services -
Consists of main act and 2 schedules o
Schedule 1: a list of 26 self-regulated and governing health professions o
Schedule 2: health professions procedural code, which applied to all of the health professions and profession-specific acts and regulations Regulated health professions statute law amendment act -
Sets the framework to expand scopes of practice for 15 names health professions set out in it. -
5 separate new acts have received royal assent and have been or will be proclaimed after transitional matters have been resolved -
Duty: protect the public, making sure healthcare professionals are safe, ethical, and competent
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Provisions in health profession acts -
Scope of practice of the profession -
Controlled acts authorized to the professions and conditions -
Restriction on titles (restriction on the title doctor) -
Restrictions on unqualified persons (holding themselves out as qualified in that profession -
Composition of the governing college council -
Risk of harm -
Confidentiality -
Reporting Confidentiality -
A member shall keep confidential all information, expectations are listed below o
The member may disclose information to a police officer ONLY if information is required to be provided under a warrant.
o
The College is able to confirm an investigation is underway (see s.36(1.5) of the RHPA);
o
The member cannot be compelled to give testimony in a civil proceeding, and no records,
evidence, reports, or documents can be used in civil proceedings (see s.36(2), (3) of the RHPA);
o
There is immunity against proceedings for damages for activities done in “good faith” under the Act (see s.38 of the RHPA).
Reporting of health professionals List of examples of sections pertaining to reporting -
If a member has reasonable grounds to believe that another member of the same or different college is incompetent, incapacitated, or has sexually abused a patient, the member under question can be reported -
A person who operates a facility must report -
A report must be filed within 30 days, unless there is an urgent need for intervention, and then the
report must be filed forthwith -
A person who terminates the employment or revokes, suspends, or imposes restrictions on the privileges of a member or who dissolves a partnership, a health profession corporation, or association with a member for reasons of professional misconduct, incompetence, or incapacity shall file a report with the Registrar within 30 days, setting out the reasons
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A member shall file a report in writing if there has been a finding of professional negligence or malpractice made against the member.
*it is important to file a report with your college as soon as reasonably practicable after a member receives notice Excellent care for A11 act -
The regulation of health professionals may achieve greater accessibility to healthcare services -
Based on the following principles o
Care is organized around the person to support their health o
Quality and its continuous improvement is a critical goal across the health care system o
Quality of care is support by the best evidence and standards of care o
Payment, policy and planning support quality and efficient use of resources Important cases Bernstein v. College of Physicians and Surgeons of Ontario
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A physician who was charged with having an improper sexual relationship with a patient, the physician denied the charged. -
The patient had a history of psychiatric treatment including for sexual fantasies, the patient’s evidence was not corroborated.
-
It was stated that o
The discipline committees who powers are such that their decision can destroy a man’s or
women’s profession life are entitled to more guidance from the courts than the simple expression that ‘they are entitled to act on the balance of probabilities’ o
Before reaching a conclusion of fact, the tribunal must be reasonably satisfied that the fact occurred, and whether the tribunal is so satisfied will depend on the totality of circumstances including the nature and consequences of the fact or facts to be proved, seriousness of an allegation made and the gravity of the consequences that will flow from
a particular finding -
The degree of proof required is the o
civil standard of proof, with that evidence being clear and convincing and based upon cogent evidence which is accepted by the tribunal Mussani v. College of Physicians and Surgeons of Ontario
-
Dr. Mussani appealed on the constitutionality of the mandatory revocation scheme. -
There was a question of whether the liberty rights or security rights of the health profession were violated
o
Are they deprived of rights in accordance with principles of fundamental justice o
Does mandatory revocation constitute cruel and unusual punishment or treatment and therefore violates sec12 rights?
-
All parties in the proceeding agreed that the government may limit rights of health professionals in the public interest and that a zero-tolerance policy was acceptable and desirable -
The court found that there is not constitutionally protected right to practice a profession, mandatory revocation provisions do NOT violate ss, 7, 12 or 12d.
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Appeal was dismissed Complaint process Complaint process of the college of physicians and surgeons of Ontario (CPSO)
-
Try to resolve the issue with your patient first
-
Speak to the admin from the family health team where your physician practices -
Coming forth with a complaint about sexual abuse can be very difficult but they will
o
Provide you with support through an intake coordinator
o
Give you information to help you decided o
Community resources for victims of sexual abuse -
We notify the doctor of the complaint.
-
An investigator gathers information about the issues you raised. Their goal is to try to answer questions, address concerns, and clear up any misunderstandings between you and the doctor. -
Your doctor responds to the complaint. -
The investigator then submits a report to the Inquiries, Complaints and Reports Committee. You and the doctor will receive a copy of the Committee’s decision and its reasons.
-
The College may do multiple different things Discussion -
In the cases mentioned, it seems that there were serious breaches of trust and professional ethics within the healthcare system. Drug diversion by healthcare professionals and fraudulent billing practices not only harm patients but also undermine the integrity of the healthcare profession as a whole.
-
Regarding whether the Colleges involved acted in the public interest in dealing with their members, it would depend on the specific actions taken by these regulatory bodies. In cases involving substance abuse among healthcare professionals, it's crucial for regulatory bodies to balance support for rehabilitation and recovery with ensuring patient safety. This often involves
programs aimed at monitoring, treatment, and rehabilitation, such as the Nurses' Health Program mentioned.
-
However, in cases of fraudulent billing practices, regulatory bodies must take swift and decisive action to protect the public interest. This may involve revoking licenses, imposing fines, or pursuing legal action against the individuals involved.
-
Ultimately, the effectiveness of the actions taken by the Colleges would depend on their ability to address the underlying issues, protect the public, and maintain the integrity of the healthcare profession.
After watching the video and reading the articles, it appears that there may have been shortcomings in the response of the regulatory bodies, such as nursing colleges, to drug diversion cases. Looking deeper into whether the colleges involved acted in the public interest would depend on the specific actions taken by the regulatory bodies, it is crucial for regulatory bodies to balance support for rehabilitation and recovery with ensuring patient safety In this specific case regarding the Canadian nurse who admitted to stealing drugs it is mentioned that despite being caught by the hospital she was never reported to her nursing college or the police. This began to raise concerns about whether the nursing college is fulfilling its obligations to protect the public interest by not taking actions against a member who engaged in unethical
and potentially harmful behaviour. Similarly, in the Lauren Lollini’s case a similar outcome came about, where a surgical technician contaminated Lauren’s pain medication resulting in her contracting hepatitis C. In summary, there was no indication that the regulatory bodies took the appropriate action against the responsible individual. While regulatory bodies may have guidelines in place for reporting incidents of misconduct or incompetence, it has been shown that these guidelines were not followed consistently or effectively in these present cases. Overall, after looking at the information provided there may have been a failure on the part of the regulatory bodies to adequately address and respond to instances of drug diversion and other misconduct within healthcare settings, potentially putting the public interest at risk. Module 6 – Public health and Coroner’s law Public health -
The study of legal powers and duties of the state to promote the conditions for people to be healthy, as well as the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interest of individuals for the protection of promotion of community health Contemporary public health – aims to use evidence about risk factors, determinants and incidence of disease which is generated from surveillance and epidemiological analysis, to design interventions that will promote and protect population health. Corners’ law -
The corners act is one of the oldest statues passed down from the English law with few revisions -
It attempts to find ones way through its complexities which is not an easy task Background and jurisdiction Background -
In the Victorian era, prior to vaccinations programs, public health measures were enforced by law
to ensure community protections -
Now public health legislation is enacted in all 10 provinces, 3 territories, and federally Jurisdiction -
The authority of a public official or another government actor to enter into an inquiry, decide on a
matter, or take some other action that may affect or determine a person’s rights Public health law 1)
It determines which level of government can make public health laws about what
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2)
It determines when and how public health officials must exercise powers given to them by valid laws Federal jurisdiction -
Jurisdiction is shared with the provinces and territories as a result of the long-standing recognitions of the federal governments legislative competence over public health, derived from provisions in the constitution act
o
Specifically those dealing with the peace, order, and good government of Canada and the criminal law Provincial jurisdiction -
It derives from the follow sections of the constitution o
Sec 92 – 7
The establishment, maintenance and management of asylums, charities and eleemosynary institutions in and for the province, other than marine hospitals.
o
Sec 92 – 13
Property and civil rights in the province o
Sec 92 – 16
Generally, all matters of a merely local or private nature in the province o
Sec 92 – 15
The imposition of punishment by fine, penalty or imprisonment for enforcing any
law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section -
In effect, s.92(15) enables a province to include in public health legislation provisions for criminal sanctions imposed against individuals who don’t comply with public health interventions
(referred to as provincial regulatory offences). Sanctions are generally fines and/or imprisonment.
Health protection and promotion act Purpose
: The Act aims “…to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario” (s.2)
Organization:
The Act provides for the creation and administration of 36 Boards of Health throughout Ontario, each with specific geographic territory, led by a Medical Officer of Health (MOH)
Public Health Interventions: The Act extends wide-ranging powers so when the health of the community is threatened, government can take steps to prevent or minimize harm to health of those at risk. These steps include, for example:
-
Issuing “health hazard” orders;
-
Issuing “communicable disease” orders;
-
Exercising extraordinary powers to investigate and act for a broad range of circumstances in which there is concern about the adequacy of public protection — anywhere in the province.
Enforcement
: empowers public health officials to seek court orders to enforce compliance with the act, authorizes peace officers to support actions of public health officials, and create offences for non-
compliance punishable by significant fines or imprisonment. -
Grants public health officials wide-ranging powers o
That individuals, groups of individuals, and entire populations (in whole or in part) can be restricted from exercising freedoms (what we eat, where we go, work, socialize, if to see a health provider)
o
Legitimacy of powers and continued acceptance depends on their appropriate use -
Helps to achieve balance between risk of harm to community health, the effectiveness of public health interventions taken to prevent or minimize risk, and the extent to which interventions restrict freedoms of community members -
HPPA also deals with control of communicable diseases
-
Prevention and control of communicable diseases has always been a cornerstone of public health practice
-
HPPA provides the MOH with the necessary legal authority to impose public health measures to control communicable diseases. Examples are compulsory medical treatment, isolation, quarantine, and court-ordered detention
-
HPPA distinguishes three categories of diseases – communicable, reportable, and virulent -
HPPA addresses who has to report communicable diseases: It imposes a requirement on physicians, practitioners, hospital administrators, superintendents of institutions, school principals, and laboratory operators
*A practitioner (chiropractors, dentists, nurses, pharmacists, optometrists, naturopaths) or physician providing professional services to a person who has a reportable disease is not required to report that information to a MOH if the person is a patient/outpatient of a hospital.
Challenges healthcare management from the requirements of the HIPPA
-
HPPA puts significant responsibilities on the healthcare system. -
Risk management is therefore a significant concern. -
Acts were passed in Ontario to supplement and assist healthcare professionals in complying with HPPA.
Immunization of school pupils act -
Provide for immunization of children attending school, to protect against spread of designated diseases for which vaccines are available -
It authorizes use of school “suspension” and “exclusion” orders to remove a minor from school Health system improvement act -
Also known as bill 171, making amendments to the HPPA o
Including enhancing powers and authority of public health officials to better enable them to deliver programs and services consistent with the purpose of the act that prevent that spread of disease and promote and protect the health of people of Ontario.
-
The act provides for o
What an individual must report: name, address, date of birth, sex, and date of onset symptoms o
Anonymous testing and non-nominal reporting (exemptions on HIV testing) o
Appeals to the health services appeal and review board: the right to challenge or appeal the order before the administrative tribunal. Mandatory blood testing act (2006)
-
It deals with mandatory drawing and analyzing of blood in case of communicable disease -
Under the act, a person may apply to a medical officer to have the blood sample of another person
analyzed
-
The applicant must establish that he/she encountered the bodily substance of another person in the following circumstance o
Victim of crime o
While providing emergency healthcare services or emergency of first aid (police, firefighter, paramedics, doctors, and nurses
-
If the other person does not consent, the medical officer may refer the application to the Ontario Consent and Capacity board (may make an order to provide the blood sample) -
The MOH must refer an application to the consent and capacity board if voluntary process is unsuccessful by the second day, and the board must hold a hearing within 7 days of referral and give a decision within one day.
Federal Public health legislation Department of health act, 1996 -
The full extent of federal jurisdiction over public health to authorize federal public health officials
to prevent the spread of disease and to protect and promote community health has never been tested -
It includes the federal “department of health act” which established “health Canada” and included
powers, duties, and functions of the federal minister of health, public health agency of Canada, and public safety and emergency preparedness Canada. -
The federal statue shows the overlapping responsibilities of federal and provincial/territorial public health legislation Section 4(2) of the federal statue reflects the federal jurisdiction “(2) Without restricting the generality of subsection (1), the Minister’s powers, duties and functions relating to health include the following matters:
(a) the administration of such Acts of Parliament and of orders or regulations of the Government of Canada as are not by law assigned to any other department of the Government of Canada or any minister of that Government relating in any way to the health of the people of Canada.
(a.1) the promotion and preservation of the physical, mental and social well-being of the people of Canada.
(b) the protection of the people of Canada against risks to health and the spreading of diseases.
(c) investigation and research into public health, including the monitoring of diseases.
(d) the establishment and control of safety standards and safety information requirements for consumer products and of safety information requirements for products intended for use in the workplace.
(e) the protection of public health on railways, ships, aircraft and all other methods of transportation, and their ancillary services.
(f) the promotion and preservation of the health of the public servants and other employees of the Government of Canada.
(g) the enforcement of any rules or regulations made by the International Joint Commission, promulgated pursuant to the treaty between the United States of America and His Majesty, King Edward VII, relating to boundary waters and questions arising between the United States and Canada, in so far as they relate to
public health.
(h) subject to the Statistics Act, the collection, analysis, interpretation, publication and distribution of information relating to public health; and
(i) cooperation with provincial authorities with a view to the coordination of efforts made or proposed for preserving and improving public health.”
Federal Quarantine Act, 2005 -
Remedy perceived shortcomings identified with the SARS experiences in 2003
-
Addresses only public health concerns arising from the spread or potential spread of infectious disease -
Applies only to the movement of people and conveyances across Canada’s international border, not to interprovincial or intra-provincial movement *Laws in this area are really a lost resort. Legal procedures are useless without overwhelming public cooperation Corners Act Corners: are medical doctors who specialize in investing sudden deaths as mandated by the coroners act Section 10 -
Provides a number of situations where the notification of the corner is mandatory
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o
Violence o
Misadventure o
Negligence o
Misconduct o
Malpractice o
By unfair means o
During pregnancy o
Following pregnancy (reasonably attribute the death to the pregnancy)
o
Suddenly of unexpectedly o
Untreated disease or sickness o
Result of another cause other than disease o
Under circumstance that may require investigation
This refers to s.10 (1) which can be referred to as the “catch-all clause”
Note that it says the word “shall” meaning it is required by law, which means that
if there’s uncertainty about whether to inform as corner you should do it anyways
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shall investigate, and then may decide that an inquest is necessary, and then if so shall issue a warrant and hold the inquest
Section 11
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once you decide to notify the corner a person is required to refrain from interfering with ir altering the body or its condition in anyways UNLESS the corner directs you to by means of a warrant Section 15 -
once a corner is contacted, they must issue a warrant to view the body -
once the body is viewed corner must make a further investigation to allow the corner to determine
whether to go any further with the investigation Section 16 -
explains what the corner can do during an investigation, allowing the corner to take anything they
think is important for the investigation -
precludes people from either undertaking or actually obstructing with the corners investigation Section 20 -
when deciding whether to conduct an inquest the corner will think about the factors in section 20,
who, how, when, where, what or by what means section 18 & 19 -
section 18 and 19 can either be applied if NO inquest is deemed necessary or if it is. Section 31 -
sets out the purpose of an inquest, which is to inquire in the circumstance of the death and determined o
who the deceased was o
how they came to their death o
where they came to there death o
and by what means -
it also notes that the jury hall not make any findings of legal responsibility or express any conclusion of law on any matter referred to in subsection 1 section 32 -
Where an inquest is deemed necessary, s.32 provides that, absent certain listed exceptions, the proceedings must be open to the public.
Sections 33,37 & 38 -
Section 33 explains the role and makeup of coroners' juries. There are five jurors on a coroner’s jury.
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Section 37 expands on what jurors are supposed to do. They might be asked by the coroner to see the body. Also, jurors can ask pertinent questions to witnesses, which is a fact-finding process similar to how an inquisitorial system works.
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According to section 38, the decision of a coroner’s jury can be made by most of its members.
Sections 39 and 40 -
Allow corners to summon witness to an inquest Section 41 -
Outlines the requirements for individual’s seeking permission to participate in an inquest. -
It allows people who want to speak at the inquest even if they wouldn’t typically be there to request permission
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. In the case of People First of Ontario v. Porter, Regional Coroner Niagara, a public interest group was allowed to participate in the inquest because they had a direct interest in possible recommendations from the jury regarding preventing future issues.
Section 44 -
The rules of evidence that apply at an inquest are relaxed, what is allowed as evidence at an inquest Section 25 & 26 -
Where an inquest is deemed unnecessary, there exists a possibility under s.26 for relatives to initiate a request for an inquest. Section 26 might work together with s.25 in this instance. In other words, s.25 allows the Chief Coroner to direct an inquest. This applies as well in circumstances other than those that fall within s.26.
Section 52 -
The conclusion of an inquest requires the corner to return the verdict Section 3 -
States that the chief corner, who may have not been the corner in a specific case must inform relevant individual’s, agencies, and government departments about the findings and suggestions made by the corner’s judges -
Recommendations form the corners inquests do not have legal force by themselves as they are not
always made into laws Legislation implemented following the recommendations is called -
An act to amend the occupations health and safety act. o
with respect to violence and harassment in the workplace, self-reported incidents of violent victimization include physical assault, sexual assault, and robbery
-
came into effect on June 5
th
, 2010 Discussion post: Part A You were asked to ponder two questions as you studied material in this module. Both are listed on the “Coroners Act” page in this module and have been reproduced here. 1)
Can you remove Ms. M’s IV line legally? Why or why not? What ethical considerations enter into
this scenario? Whether or not you could remove Ms. M’s IV line legally is dependent on several factors, including jurisdiction-specific laws, medical protocols, as well as the circumstances surrounding Ms. M’s death. In many jurisdictions, medical professionals have a duty to preserve evidence and maintain a body’s condition until the coroner has been notified and has assessed the situation. Removing the IV beforehand could potentially interfere with the corners ability to perform a thorough investigation. Several ethical considerations are at play during this scenario, respecting the deceased plays a role in preserving the dignity and integrity of the body at hand. Ensuring when removing the medical equipment like an IV line,
that it is done with respect for the deceased individual. Furthermore, medical professions have a duty to preserve evidence when it comes to a patient’s death, especially when the evidence might assist in
determining the cause and circumstances. Removing an IV line before the corner’s notification could compromise the integrity of evidence relevant to the investigation. Acting transparent and in accordance with legal and ethical standards enables trust in the healthcare system; therefore, removing the IV line without proper authorization could raise questions about transparency and accountability in the handling of Ms. M’s case. Given the considerations discussed, it would be with good judgement to refrain from removing Ms. M’s IV line without consulting the appropriate authorities to ensure that the actions taken are legally permissible and ethically appropriate. 2)
Do you think it would be possible to bring an action in court on the grounds that s.16(2)(c) of the Coroner's Act violates s.8 of the Charter? Why or why not? I do think it would be possible to bring action in arguing that s.16(2)(c) of the Corners Act violates s.8 of the charter, although I think that it would heavily depend on several factors regarding a careful analysis of
constitutional principles, legal precedents, and the specific circumstances of the case. The government would likely argue that s.16(2)(c) is justifiable under the limitations clause of the Charter, which allows for reasonable limits on right and freedoms, provided they are demonstrably justified in a free society. It would be probable that allowing corners to gather evidence is necessary for the effective investigation of deaths and serves important public interest, such as ensuring justice and preventing future deaths. The courts would weigh the importance of protecting individual rights against the necessity of allowing corners to conduct a thorough investigation into sudden or unexpected deaths. It would further be based on the factors such as the nature of the intrusion, the seriousness of the issue and the safeguards in place to protect the individuals’ rights. Ultimately, whether s.16(2)(c) violates s.8 of the Charter would be a very complex legal question for the courts to determine whether the provision infringes on individuals rights under the Charter and, if so, whether the infringement can be justified. Module 7
– Civil and Criminal Litigation in Healthcare and Informed Consent and Medical Care Criminal Charges -
The possible criminal charges that a health practitioner could face include criminal negligence or criminal negligence causing death. -
Criminal charges remain rare and require extraordinary circumstances. -
The burden of proof is on the prosecution, the Crown, which is required to prove the accused guilty beyond a reasonable doubt, which is the standard of proof in a criminal proceeding. -
There are serious repercussions on the accused person, i.e. being found guilty and criminally convicted, being given a criminal record and perhaps incarceration.
Professional Disciplinary Action
-
This is a process that is initiated by a regulatory College and may relate to issues of competence or investigation of a complaint. The process may result in a hearing before the regulatory College.
-
The burden of proof is on the regulatory College, which is required to prove the College member, called the respondent, guilty on the civil standard of proof, a balance of probabilities. T
-
he consequence to the member may result in a limitation of practice or revocation of license to practice.
Civil Action for Damages -
This is more commonly called a “malpractice” lawsuit. The claim is for liability and compensation or damages. The standard of proof on the plaintiff who bears the burden or onus is the civil standard of proof, which is proof on a balance of probabilities.
Corner’s Investigation -
A coroner may initiate an investigation arising out of a person’s death. The coroner has the authority to call an “inquest,” which is a hearing to determine the circumstances of death and to develop recommendations to prevent similar deaths in the future.
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-
The coroner is precluded from making any finding of civil or criminal responsibility. Health practitioners may be required to participate in a coroner’s inquest or investigation because of their
involvement in the death of an individual.
Brief overview of criminal law -
Criminal charges may be brought against individuals pursuant to the Criminal Code of Canada, a federal statute. -
The burden of proof, which is also called the onus of proof, refers to which party must prove its case in order to be successful in court. The general rule is that the Crown bears the burden in a criminal court case to prove the allegations against an accused individual.
-
While there are exceptions to the general rule, they are beyond the scope of this course. For further information about the steps in a criminal law proceeding, please see the Ontario Ministry of the Attorney General website. We will not proceed any further into the issue of criminal law.
-
The standard of proof—whether in criminal court, civil court, or before a regulatory College—
refers to the degree of persuasion to which the party with the burden of proof must prove their case. The civil standard is proof on a balance of probabilities. On a spectrum of 1-100, it means beyond the 50% level.
-
The criminal standard is proof beyond a reasonable doubt.
Torts Definitions -
The term “tort” is a civil wrong for which courts may award compensation to a victim for loss or damages suffered as a consequence of that wrong, which is not otherwise covered under other areas of law (e.g. it is not a breach of contract, breach of trust, etc.). Torts can be intentional or unintentional.
Intentional Torts -
Assault and battery are intentional torts. The intent of the alleged wrongdoer (or tortfeasor) is an important part of the argument. In other words, if it can be proven that an alleged tortfeasor did not intend to perform the illegal act, a court might find the tortfeasor not liable.
Unintentional Torts -
Negligence is an unintentional tort. This means that the intent of the alleged wrongdoer is not in issue. o
That is, it does not matter that the alleged tortfeasor did not intend to perform the illegal act. “I did not mean to do it” is not a defence. What matters is the effect on the “tortfeasee” (the person wronged, usually, though not always the plaintiff).
-
A typical negligence claim might be that the patient was touched or treated without informed consent or that the patient consented to be touched or treated without first receiving adequate information. Informed consent is a defence to a claim of negligence, provided, of course, that the alleged tortfeasor can prove that s/he gave the patient adequate information and received consent.
Assault and Battery -
A typical assault and battery claim or lawsuit in civil court might be that consent was obtained through serious or fraudulent misrepresentation in what was explained to the patient.
Battery -
Battery is a physical touching of a person without consent. In the medical context, this usually means that the treatment has been given without informed consent, for example, administering a blood transfusion to a person who has declined to consent to this form of treatment. In other words, battery is unauthorized treatment and constitutes a trespass to the person.
-
A typical battery claim might be that the treatment went beyond or deviated significantly from what was consented to. The doctor's ability to prove informed consent was given by the patient is
a defence to a claim of battery, provided, of course, that the court finds that the alleged tortfeasor reasonably advised the patient of the procedure to be performed and the patient consented.
Battery affords a number of advantages for patients over negligence -
Bringing a claim of Battery affords a patient with a number of advantages in a civil lawsuit, compared to the tort of negligence. The patient does not have to find medical experts to testify, since the issue is not whether the doctor exercised reasonable care, but rather whether treatment was performed without informed consent.
-
Also, the onus rests on the doctor to prove that valid consent was obtained AND the doctor is liable for all the direct consequences of the battery, whether foreseeable or not. If something goes wrong in the course of a medical procedure, even though quite unforeseeable and completely without fault on the part of the doctor, the doctor is liable for those consequences if the procedure is being performed without a valid consent.
-
Even if a patient sustains no physical injury as a result of the treatment or benefits from it, damages may be awarded for mental distress and anguish suffered upon learning that treatment was performed without consent.
While we will look at consent later in this module, the nature of consent required will depend on:
1)
Provincial legislation: In Ontario, the Health Care Consent Act sets out the rules relating to the obtaining of consent.
2)
The patient’s mental competence.
Consent may be:
-
Express: verbal or written; or
-
Implied.
Negligence -
This type of civil claim requires the plaintiff or the person(s) making the claim to prove to the court on the civil standard of proof, called a balance of probabilities that the care provided by the defendant(s) fell below an acceptable standard of care and requires evidence of experts to opine on the appropriate standard of care in the circumstances.
There are four requirements for success in a negligence action and the evidence must prove all 4 :
1)
Defendant must owe plaintiff a duty of care;
-
The duty on a doctor to exercise care with respect to a particular patient springs into being upon the formation of the doctor-patient relationship. In the vast majority of medical negligence cases, the existence of that relationship (and hence, of the duty of care) is not in issue and will usually be conceded. In other words, it will be clear that a duty of care was owed, and the real dispute will focus on the scope of that duty (which is closely related to the standard of care).
-
In many cases where a patient is hospitalized, the doctor is not the only professional who owes a duty to the patient, and in certain circumstances the doctor can, as the courts say, rely on the duty owed by the other professional(s)
o
For example in the operating room a surgeon can rely on the anesthetist to perform their tasks properly, the resident to assist in performing the surgery and to close the incision, and the nurse to check the instruments before the surgery and to count them after it (but the doctor in charge at the time of closing has ultimate responsibility to ensure that a count is done, and also to conduct a search of the surgical site).
2)
Defendant must breach the standard of care established by law;
-
Under our legal system, every person is required to act in such a way as not to cause an unreasonable risk of harm to others. The standard against which individuals are measured is that of the “reasonable person.”
3)
Plaintiff must suffer an injury or loss; and
-
A plaintiff cannot succeed in a negligence action without proving that he or she has suffered a material injury, also called a “loss” or “damage.
4)
Defendant’s conduct must have been the actual and legal cause of the plaintiff’s injury.
Anatomy of a lawsuit Steps in a civil action -
Documentary discovery
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Oral discovery
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Exchange of expert reports
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Possible mediation
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Pre-trial
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Trial
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Appeal
Practical advice but not legal advice -
what should you do if you think you may be sued? Get a lawyer, as discussions with your counsel
are covered by solicitor/client privilege. Discussions with others may be discoverable in a legal proceeding.
Consent -
The doctrine of informed consent came from the classic 1914 American case, Schloendorff v. Society of New York Hospital, 105 N.E. 92,93 (N.Y. 1914) where Justice Cardoza wrote “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”
-
Consent must meet certain requirements to be valid: it must be informed, from a capable person, and voluntary. The information required is with respect to the nature and quality of the act. Capacity refers to the mental ability to make the decision in addition to any legal capacity established by statute or common law.
HCCA (healthcare consent act) -
This piece of Ontario legislation can be referred to as ethically based. You will note the inclusion in the purposes clause of ethical concepts, such as advancing and respecting the dignity and autonomy of patients and enhancing autonomy. In s.1 of the HCCA, the purposes clause includes the following:
o
Identifying the first goal as providing “rules with respect to consent to treatment that apply consistently in all settings”
o
Other objectives include facilitating the treatment and placement of incapable persons, and enhancing the autonomy of individuals for whom treatment or placement is proposed
o
Advancing and respecting the dignity and autonomy of patients is a core ethic of all health professions
Treatment Wherever Whenever
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The provisions of HCCA apply to treatment decisions wherever and whenever a treatment is proposed for an individual, i.e. within or outside of hospitals or psychiatric facilities. -
The HCCA also includes provisions regarding capacity to make decisions with respect to long-
term care admission and related provisions for obtaining consent for personal assistance services, defined as including ambulation, nutrition, grooming, and hygiene for individuals residing in care
facilities, i.e. nursing homes and others, BUT NOT retirement residences.
-
Consent is an ongoing process. It is not just a form that is signed. Any form is just part of the process.
Section 10 -
(1) A health practitioner who proposes a treatment for a person shall not administer the treatment,
and shall take reasonable steps to ensure that it is not administered, unless:
a)
he or she is of the opinion that the person is capable with respect to the treatment, and
the person has given consent; or
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b)
he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in
accordance with this Act.”
Section 11 Informed consent In order to succeed on a claim based on lack of informed consent a plaintiff must prove:
1)
The healthcare practitioner proposing treatment failed to inform the patient of:
o
The nature of the treatment.
o
The expected benefits of the treatment.
o
The material risks of the treatment.
o
The material side effects of the treatment.
o
Alternative courses of action.
o
The likely consequences of not having the treatment.
2)
A reasonable person in the position of the plaintiff would not have undergone the treatment if they had been properly informed about the proposed treatment.
Required elements of valid consent and valid informed consent—s.11(1) and (2):
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The elements devolve from the common law of consent. There is a requirement of specificity that
consent must relate to specific treatment. The mere fact it would be more convenient to perform two distinct surgeries at the same time, rather than wait until the patient is able to consent to the additional procedure, does not permit a healthcare provider to avoid liability for failing to obtain consent.
NOTE that s.11(3) of the HCCA describes what a physician must communicate to the patient in order for the consent to be held by a court to be informed.
Informed consent has a statutory definition set out in s.11(3):
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Nature of the treatment;
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Expected benefit of the treatment;
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Material risks of the treatment;
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Material side effects of the treatment;
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Alternative courses of action; and
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Likely consequences of not having the treatment
Exceptions to requirement for consent:
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In an emergency for which consent cannot be obtained from the patient or the substitute decision-
maker (SDM) (defined in s.9 of the HCCA), a physician has a duty to act where there is imminent
threat to the life or health of a patient.
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See s.25 and s.27 of the HCCA and read s.27 together with s.21: The Mental Health Act and public health legislation (Health Protection and Promotion Act) include provisions for treatment without consent. For example, an involuntary patient has the right to refuse treatment unless a finding is made that s/he is “incapable with respect to a treatment,” in which case an SDM may consent or refuse treatment (see s.20 of the HCCA).
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The doctrine of “informed consent” protects patients’ interests in bodily integrity and asserts the right of patients to decide about medical treatments based on knowledge of relative advantages and disadvantages of treatment.
The doctrine of informed consent—Canadian courts
-
In 1980, the Supreme Court of Canada decided the cases of Hopp v. Lepp and Reibl v. Hughes. The shift was on to greater patient involvement in decision-making. My view is the doctrine of informed consent was originally developed as a judicial attempt to redress the inequality of information that characterizes a doctor-patient relationship.
Waiver
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There has been considerable controversy over a patient’s right to waive the right to be informed. While some patients may wish to be less than fully informed of the risks or alternatives, the healthcare professional must be very cautious.
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Choosing not to fully disclose, even when guided by a patient’s wishes, runs the risk of being found liable in a lawsuit.
What is capacity?
Starting point -
The starting point in law for any capacity assessment is always a presumption of capacity. The importance of this presumption cannot be overemphasized. In law, capacity is always presumed (see s.4(2) of the HCCA):
o
A person is presumed to be capable with respect to treatment, admission to a care facility,
and personal assistance services
o
This applies to everyone, regardless of age and mental status
The test for capacity set out in s.4 of the HCCA is a two-part legal test. So, in the case of a particular treatment decision a person is capable, if s/he is:
1)
able to understand the information that is relevant to making a decision about the treatment; and
2)
is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
-
Capacity is issue-specific. So, if a person is determined to be incapable with respect to a particular treatment, s/he remains presumed capable with respect to other proposed treatments or with respect to management of property or for that matter anything else, unless specifically assessed and determined incapable with respect to that other treatment or issue.
-
The leading court case with respect to capacity to consent to treatment is Starson v. Swayze. Here, the Supreme Court of Canada examined s.4 of the Ontario HCCA and interpreted the two-
part legal test for capacity referred to above.
A statutory overview Capacity to Consent (or Refuse Consent) to Treatment
-
This is assessed under provincial law; in Ontario it is the Health Care Consent Act (HCCA). Assessment is done by a “health practitioner” proposing a treatment (or plan of treatment). This assessment can occur in any setting. A finding of incapacity triggers the identification of a substitute decision-maker (SDM).
Capacity to Consent to Admission to a Long-Term Care Facility
-
Assessed under the HCCA
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Assessment is done by an “evaluator” (narrower than “health practitioner”)
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This assessment can occur in any setting
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A finding of incapacity triggers the identification of an SDM
Capacity to Consent to Personal Assistance Services
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Assessed under the HCCA
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Assessment is done by an “evaluator”
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Only someone living in a “care facility” is eligible for this assessment
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A finding of incapacity triggers the identification of an SDM
Capacity to Manage Property
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Where the person is a “patient” in a psychiatric facility, this assessment is done under the Mental Health Act (MHA). Assessment is done by a physician. Patient gets rights advice.
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In all other circumstances, the assessment is done under the Substitute Decisions Act (SDA). Assessment is done at the person’s request, or at someone else’s, by an assessor.
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A finding of incapacity triggers the Public Guardian and Trustee (PGT) taking over management of the person’s finances.
Capacity to Consent to Personal Care
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“Personal care” is defined in s.45 of the SDA. A finding of incapacity triggers the operation of a Power of Attorney for Personal Care, where one exists, or an application to the Court for the appointment of a guardian of the person.
Children -
In some provinces, aspects of this question have been addressed by legislation. Some provinces use welfare principles in decision-making, others provide minimum age for consent to be presumed.
-
In Ontario, there is no minimum age for treatment capacity in the Health Care Consent Act, thereby recognizing that everyone is presumed capable. In the Ontario Substitute Decisions Act, there is a presumption that a person 18 years of age or more is capable of entering into a contract, and a person 16 years of age or more is capable of giving or refusing consent in connection to his or her own personal care.
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