Healthcare Legislation in Canada

Nursing Student Coordinator Application

• Application deadline: September 15, 2024
• Learn more about the course: mcgill.ca/globalhealth
• Apply here: www.mcgill.ca/globalhealth/students/courses
• Contact: [email protected]

Roles & Responsibilities - McGill Nurses for Planetary Health

• Participate in meetings
• Share ideas
• Plan and coordinate events

Roles & Responsibilities - McGill Nurses for Global Health

• Participate in meetings
• Share ideas
• Plan and coordinate events
• Contact Information: [email protected]

Law 1 - Rights & Obligations

• Course information: NUR1 424 - Fall 2024
• Lecturer: Daria Kapnik

Plan

• Topic 1: Rights and Obligations
  • 1.1 - Law 101
  • 1.2 - Patient's rights
  • 1.3 - Professional obligations
• Topic 2: Capacity & Informed Consent
  • 2.1 - Legal Framework - Core provisions
  • 2.2 - Duty to inform
  • 2.3 - Criteria of informed consent
  • 2.4 - Delegated Consent
  • 2.5 - Recap
• Topic 3: Legal Liability
  • 3.1 Civil Liability- Overview
  • 3.2 Civil Liability- Core elements
    • 3.2.1 Fault
    • 3.2.2 Damages
    • 3.2.3 Causation

1.2 - Patient Rights

• Act regulating Health Services and Social Services (AHSSS)
• Loi sur les services de santé et les services sociaux (LSSSS)
• Articles 4 to 16: User's Rights
• Articles 17 onwards: User's Records

1.2 AHSSS/LSSSS - Articles 4 to 16

• Patients have the right to:
  • Continuity and safety of services (art. 5)
  • Receive services in English (art. 15)
  • Be accompanied by a person of choice (art. 11)
  • Choose a medical professional*(art. 6) -*all within the material limits of the institutions providing the services (art. 13)

1.2 Other Legislation

• These rights are echoed in other legislative texts
• For example Art. 8 of AHSSS is mirrored by Art. 40 & 41 of the Code of ethics of nurses

1.3 - Professional Obligations

• Doctors and nurses have a statutory duty to inform and obtain free and enlightened consent
• Produce a correct diagnosis, treat, follow, and respect professional secrecy.

1.3 Overview

• Doctors and nurses have an obligation of means (vs obligation of result) towards patients
• Objective Test (negligence / fault)
  • Did the nurse act with ordinary competence and diligence?
  • Must provide care that adheres to the current, generally accepted standards and practices

1.3 Rights Reflect Obligations

• AHSSS/LSSSS Article 19: Confidentiality of Patient's Record
• Nurses Act, Article 31: Duty of Confidentiality & Exceptions
• Professional Code, Article 60.4: Duty of Confidentiality & Exceptions

1.3 Health professionals have a duty

• To inform
• To obtain free and enlightened consent
• To produce a correct diagnosis (IPS/MD)
• To treat
• To follow
• To ensure professional secrecy

1.3 Standard of Care

• Obligation of Means: Responsible for doing your job well
• Obligation of Results: Responsible for the outcome

### 2.1 Legal Framework – Core provisions

• Civil Code of Quebec, Article 10: Every person is inviolable and entitled to the integrity of his or her person.
• Code of Ethics, Article 40: A nurse shall provide client with required care explanations.

2.1 Legal Framework – Core provisions

• Civil Code of Quebec, Article 11: No one may be made to undergo care without consent.
• Code of Ethics, Article 41: Nurses shall provide free and enlightened consent considerations and periods.

2.1 Legal Framework – Core provisions

• Before giving consent, the user is entitled to be informed of the state of health/welfare, available options, risks and consequences

• The options need to reflect the accepted professional practices and not be referrals to, or providing, harmful treatments.

2.3 Criteria of informed consent

• Person must have capacity to consent/refuse treatment
• Consent must be given freely (no coercion, manipulation or deception)
• Consent must be enlightened (all information necessary for an informed decision)

2.3 Criteria of informed consent - Exception

• All patients must give informed consent prior to receiving care
• Exception: Emergencies (if life or integrity threatened and consent cannot be obtained in due time)

2.3 Informed consent - Capacity

• Legal Incapacity (Can still say what happens to your body)

• Incapacity of Consenting to Care (Unable to say what happens to your body)

• Capacity is a person's legal ability to exercise his or her legal rights, including the right to consent to or refuse treatment

• Capacity presumed unless: Minor, Temporarily unable to consent, or Court Order

• Authorization of the court may be required for care of minors over 14 who refuse care.

2.3 Informed consent - Capacity cont.

• Hospitals seek court orders for Treatment & Psychiatric Confinement, if incapable or refusing treatment
• Treatment is appropriate, if successful in proving these elements.

2.3 Informed consent - Capacity cont.

• To establish capacity in confinement orders - Psych reports are needed (details on behavior, moods, admittance)
• For tx orders, the Case of Institut Philippe-Pinel de Montréal (2012) has set out standards that a psychiatric report must address

###2.3 Informed consent - Free

• If there are advanced directives, the health professional must respect them
• “Classic” example - Jehovah's Witness cases (e.g., Malette v. Shuman)
• Fear or pressure can invalidate consent

2.3 Informed consent - Free (Example)

• Fear: Consent under pressure
• Patient finds himself in a situation (e.g., Norberg v Wynrib [1992] 2 S.C.R. 226): -Patient addicted to Fiorinal
• Doctor abused relationship of trust
• Patient's addiction preventing free consent

2.3 Informed consent - Enlightened

• Drolet v. Parenteau (1994) (RJQ 689 (CA)): - Explains the need for thorough and complete information - Examines a case where a patient was not adequately informed and developed complications after surgery

2.4 Delegated consent - When do we need it?

• Civil Code of Quebec, Article 15: If a person is deemed incapable of giving consent, the care is given by a mandatory, tutor or curator

###2.4 Delegated consent – How does a Delegate decide?

• Civil Code of Quebec, Article 12: The delegate to consent acts in the sole interest of the person, following any wishes, ensuring the care benefits and that the risks aren't disproportionate

###2.4 Delegated consent – Pecking Order

• 1. Person decides for themselves
• 2. Mandatory/Tutor/Curator if needed
• 3. Spouse
• 4. Family members (children or elderly parents)
• 5. Close friend

2.5 Recap

• Patient has capacity to consent (Art. 11 CCQ)
• No capacity to consent and represented (Art. 15 CCQ)
• No capacity to consent but not represented (Art. 15 CCQ)
• Unjustified refusal or impossible to reach substitute (Art. 16 CCQ)
• Minor is over 14 years of age (Art. 14/17 CCQ)
• Minor is under 18 years of age (Art. 18 CCQ)
• No capacity and categorically refuses treatment (Art. 16 CCQ)

3.1 Civil Liability - Overview

• Extracontractual Claim: Obligation not to cause harm - Patient - Hospital - Patient - Healthcare Professional (Emergency/Hospital)
• Contractual Claim: Obligation to honor contractual undertakings - Patient - Doctor - Patient - Private Nurse

3.2 Civil Liability - 3 core elements

• 1. Fault (reasonable professional standard)
• 2. Causation (adequate link between fault and damages)
  • Consider the concept of foreseeability
• 3. Damages (bodily, moral, material harm/prejudice)

3.2.1 Civil Liability - Fault

• An act or omission by a healthcare provider that deviates from accepted standards
• Involves conduct that falls short of what a reasonable person would do

3.2.1 Civil Liability - Fault (Example)

• Hubert c. Centre Hospitalier (2005): A patient experienced complications from treatment and sued the hospital

• The case was largely decided in favor of the patient due to the quality of notes from the Auxiliary Nurse, which contradicted those of the Head Nurse, which provided necessary evidence.

• Hospital failed to demonstrate that the actions were in line with the generally accepted standards of care.

3.2.1 Civil Liability - Fault (Example)

• Farkas c. Réseau Santé Richelieu (2007): A patient experienced an infection following an IV and sued the hospital staff
• The court dismissed the claim because the plaintiff had failed to provide sufficient evidence for their claims, and it was not plausible.

3.2.2 Civil Liability - Damages

• Damages can be:
• Pecuniary (lost wages, medical bills, damages to property)
• Non-pecuniary (pain and suffering, mental distress)
• Damages are compensatory in nature

3.2.2 Civil Liability - Damages (Example)

• Roy c. Mout (2015): Appellant suffered an infection and sued the hospital staff.
• The case was decided in favor of the appellant, who was awarded moral damages, as the court acknowledged that a lack of adequate care had caused additional distress.

3.2.3 Civil Liability - Causation

• Adequate causation: eliminates the circumstances of the damage and isolates the immediate cause
• Could the events have been caused by a situation's natural evolution?

3.2.3 Civil Liability - Causation (Example)

• Snell v. Farrell (1990): If a defendant does not present evidence otherwise, a court may draw an inference that the damage was caused by the defendant

3.2.3 Civil Liability - Causation (Example)

• Ediger v. Johnston (2013): The Supreme Court affirmed that the court needs to determine if the injury occurred from the lack of adequate care. Considering a situation where the physician failed to provide adequate care.

3.2.3 Civil Liability - Causation (Example)

• Bérubé c. Hôpital (2003): A patient suffered complications following surgery and alleged inadequate care from the hospital staff
• The court dismissed the appeal, as the required contemporary notes were not found and that if these notes were made, other possible outcomes might have resulted.

3.2.3 Civil Liability - Causation (Example)

• Kauffman v. Toronto Transit (1960): The plaintiff was injured due to negligent conduct/lack of installation of a handrail by the transit company
• The court decided that the connection/relation between the alleged negligence and injury must be established with evidence

Workshop 1 Class 4 - Transplant Ethics

• Room location
• Complete the preparatory meeting
• Know your group number and sit with them
  • Preparing for workshop
  • Assigned readings
  • Assessments, deliverables and timelines

This quiz tests your knowledge of federal and provincial healthcare legislation in Canada, including the Canada Health Act and Quebec's Public Health Act. Discover the nuances of health services, user rights, and professional obligations in the context of healthcare. Are you familiar with the key concepts and legal frameworks governing healthcare in Canada?