NUR1 424 Law 2: Confinement & Privacy

Law 2 - Confinement, Privacy & Confidentiality, and Resources

• Course: NUR1 424, Fall 2024
• Lecturer: Daria Kapnik

Plan

• Authorization for Treatment:
  • Recap of Court Orders under CCQ
  • Treatment order
• Confinement Law:
  • General Principles
  • Parameters
  • Types of Confinement
    • Preventative Confinement
    • Provisional Confinement
    • Authorized Confinement (Institutional)
      • Motion for Authorized Confinement (process, duration, PSY content, court order criteria, renewal, end of confinement, longer confinement)
  • Rights of the person under confinement
  • Potential issues in confinement
• Privacy, Confidentiality, and Resources:
  • Patient access to and medical records
    • General
    • Deceased patients
    • Confidentiality and care issues regarding minors
  • Management of Limited Resources and Patient Rights
    • Key provisions
    • Caselaw

Outline

• Authorization for Treatment
  • Recap of Court Orders under CCQ
  • Treatment order
• Confinement in an Institution
  • General Principles
  • Parameters
  • Types of Confinement
    • Preventative Confinement
    • Provisional Confinement
    • Authorized Confinement (Institutional)
      • Motion for Authorized Confinement - Process
      • Motion for Authorized Confinement - Duration
      • Motion for Authorized Confinement - PSY content
      • Motion for Authorized Confinement - Court order criteria
      • Motion for Authorized Confinement - Renewal
      • Motion for Authorized Confinement - End of Confinement
      • Motion for Authorized Confinement - Longer Confinement
  • Rights of the person under confinement
  • Potential issues in confinement
• Caselaw
  • Charles Le Moyne c. E.(F.)
  • CSSS Côte-de-Gaspé c.P(C)-EYB 2013-227952
  • J.M. c. Hôpital Jean-Talon du (CIUSSS) du Nord-de-l'Île-de-Montréal, 2018
• Privacy - Patient access and medical records
  • General
  • Deceased patients
• Management of Limited Resources and Patient Rights
  • Key Provisions
  • Caselaw
    • Jasmin c Cité de la santé de Laval (AZ-90021046)
    • Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine (2007)
    • J.O. vs. Hôpital Royal Victoria (2011)

Recap of Court Orders under CCQ (page 5)

• Article 16 CCQ: Person of full age incapable of giving consent, categorically refuses care, or no representative can be found for delegated consent.
• Article 16 CCQ: Minor over 14 refuses care (not in cases of emergency & life/integrity threat)
• Article 17/18 CCQ: Care entails serious risk for minor's health and potentially grave, permanent effects (even if over 14)
• Treatment order (page 7)
  • The party seeking authorization (usually the health establishment) has the burden of proof
  • Must prove, on the balance of probabilities: (1) person lacks capacity to consent; (2) person is categorically refusing treatment; (3) proposed treatment is in patient's best interest
  • How? Motion + expert reports
• Nova Scotia criteria (page 8)
  • Understanding the nature of the illness
  • Understanding the proposed treatment and other options
  • Understanding the benefits and risks of treatment
  • Understanding risks and consequences of not undergoing treatment
  • Patient's ability to understand affected by illness

Confinement in an Institution (page 10-11)

• General Principles: Confinement is exceptional, violating integrity and inviolability; person must be a serious and immediate danger to themselves or others
• Types of Confinement:
  • Voluntary (patient consents)
  • Forced (preventive, provisional, authorized)
• Location: Institution operating a local community service centre, or hospital
• No one: may be confined in a health or social services institution without consent
• Danger: must be specific and detailed, not just a general statement, present and imminent danger
• Preventive: A physician can authorize without a court order if danger is grave and immediate

Specific Confinement Processes (various pages)

• Process and Procedures: Detailed motions for authorized confinement, with specific timeframes (e.g., 24-48-72-96-hours) and requirements for physicians performing examinations and documentation.
• Renewal: Procedures and legal basis for renewing confinement for up to 90 days after an initial 30-day period
• End of Confinement: How confinement ends, including court, tribunal, and physician actions
• Longer Confinement: Periodic re-evaluations with specific timelines
• Rights of a person in confinement: the use of restraint
• AWOL: communicating with DPS, returning to hospital

Privacy/ Confidentiality/ Care Issues Regarding Minors

• Parental access: Parental authority has access to a minor’s health information
• Access by other bodies: Other bodies have access to minor's health information (determined by the statutory duties of disclosure)
• Exceptions to access in regard to minors:
• Duty to report: Professionals are required if a minor’s security or development is at risk. Examples of specific actions needing reporting
• Consent: Minors under 14 years of age require consent from parental authority or tutor
• Minors over 14 years of age: capable of giving their own consent

Management of Limited Resources/Patient Rights

• Limited budgets in health sector and aging population create challenges
• Specific Acts: Rights and obligations in Act Respecting Health Services and Social Services, details of the act
• Caselaw: Legal conflicts, regulations and limitations of access to services
• Case Example Issues: Discriminatory regulations, inadequate access, procedural errors, and the right to seek judicial review. Patient rights and access to services.