Law 2 - NUR1 424 Fall 2024 Past Paper PDF

Law 2 – Confinement, Privacy & Confidentiality, and Resources NUR1 424 – Fall 2024 Lecturer: Daria Kapnik NUR1 - 424 @ Copyrighted 2024 ...

Law 2 – Confinement, Privacy & Confidentiality, and Resources NUR1 424 – Fall 2024 Lecturer: Daria Kapnik NUR1 - 424 @ Copyrighted 2024 Plan 1. 2. Confinement 3-4. Privacy, Authorization Law Confidentiality for Treatment and Resources 3. Privacy - Patient access and 1.1 Recap of Court 2.1 General Principles medical records 2.2 Parameters Orders under CCQ 2.3 Types of Confinement 3.1 General 1.2 Treatment order 2.4 Preventative Confinement 3.2 Deceased patients 2.5 Provisional Confinement 3.3. Privacy, confidentiality 2.6 Authorized Confinement and care issues regarding (Institutional) minors 2.7 Rights of the person under 4. Management of Limited confinement 2.8 Potential issues in confinement Resources and Patient Rights. NUR1 - 424 Outline 1. Authorization for Treatment 1.1 Recap of Court Orders under CCQ 1.2 Treatment order 2. Confinement in an Institution 2.1 General Principles 2.2 Parameters 2.3 Types of Confinement 2.4 Preventative Confinement 2.5 Provisional Confinement 2.6 Authorized Confinement (Institutional) 2.6.1 Motion for Authorized Confinement – Process 2.6.2 Motion for Authorized Confinement – Duration 2.6.3 Motion for Authorized Confinement – PSY content 2.6.4 Motion for Authorized Confinement – Court order criteria 2.6.5 Motion for Authorized Confinement – Renewal 2.6.6 Motion for Authorized Confinement – End of Confinement 2.6.7 Motion for Authorized Confinement – Longer Confinement 2.7 Rights of the person under confinement 2.8 Potential issues in confinement 3 Outline (cont’d) 3. Caselaw 3.1 Charles Le Moyne c. E.(F.) (CQ) 3.2 CSSS Côte-de-Gaspé c.P(C)–EYB 2013-227952 (CQ) 3.3 Hôpital Maisonneuve-Rosemont c. H. (M.) – EYB 2013-219305 3.4 J.M. c. Hôpital Jean-Talon du (CIUSSS) du Nord-de-l'Île-de-Montréal, 2018 QCCA 378 4. Privacy - Patient access and medical records 4.1 General 4.2 Deceased patients 5. Privacy, confidentiality and care issues regarding minors 6. Management of Limited Resources and Patient Rights 6.1 Key Provisions 6.2 Caselaw 6.2.1 Jasmin c Cité de la santé de Laval (AZ-90021046 (CS) 6.2.2 Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine (2007 QCCQ 5118) 6.2.3 J.O. vs. Hôpital Royal Victoria (2011 QCCS 5532) 4 1. Authorization for Treatment 1.1 Recap of Court Orders under CCQ Recap of the scenarios for obtaining the COURT ORDER Art. 16 CCQ.: when a person of full age incapable of giving consent categorically refuses to receive care; Art. 16 CCQ.: No representative can be found for delegated consent or refuses without justification; Art. 16 CCQ.: Minor over 14 refuses care (not in cases of emergency or where life or integrity threatened) Arts. 17/18 CCQ.: Care entails serious risk for minor’s health and may cause grave and permanent effects (even if over 14) 5 1. Authorization for Treatment 1.1 Recap of Court Orders under CCQ Recap of the scenarios for obtaining the COURT ORDER Art. 16 CCQ.: when a person of full age incapable of giving consent categorically refuses to receive care; Art. 16 CCQ.: No representative can be found for delegated consent or refuses without justification; Art. 16 CCQ.: Minor over 14 refuses care (not in cases of emergency or where life or integrity threatened) Arts. 17/18 CCQ.: Care entails serious risk for minor’s health and may cause grave and permanent effects (even if over 14) 6 1. Authorization for Treatment 1.2 Treatment order WHO? The party seeking to have treatment authorized (usually, the health establishment) has the burden of proof. WHAT? Must prove (on the balance of probabilities) that 1. Person does not have capacity to consent to proposed treatment; 2. Person is categorically refusing treatment 3. Proposed treatment is in the patient’s best interest (and appropriate in the circumstances) HOW? Motion + Expert reports + testimonial evidence ( for ex., there must be proof of treatment being offered and refused - usually via testimony of psychiatrist & residents); WHY? To introduce/force treatment 7 1. Authorization for Treatment 1.2 Treatment order To establish inaptitude, the Nova Scotia criteria (proposed by the Canadian Psychiatric Association and reflected in Institut Philippe-Pinel de Montréal c. A.G. 2012) are used: 1. Does the person understand the nature of the illness for which treatment is being proposed? 2. Does the person understand the nature and purpose of the proposed treatment (and other available options)? 3. Does the person understand the benefits and risks of the proposed treatment? 4. Does the person understand the risks and consequences of not undergoing the proposed treatment? 5. Is the person's ability to understand affected by their illness? 8 1. Authorization for Treatment 1.2 Treatment order This exercise intends to assess the person's ability to: - Understand & Appreciate the information and how it applies to them (“autocritique” ) - Reason & Express a choice The courts & medical professionals should be wary of the dangers of: - Confusing legal incapacity with capacity to consent - Generalizing incapacity to consent to ALL care - Not assessing capacity in the presence of cognitive impairment - Letting person’s vulnerability get in the way of respecting their categorical refusal 9 2. Confinement in an Institution 2.1 General Principles Confinement in an institution is an exceptional measure: - Contrary to the right of integrity and inviolability guaranteed under both Quebec and Canadian Charters Person must be in a state that represents a serious and immediate danger to themselves or others Pertinent legislation Civil Code of Québec + Code of Civil Procedure P-38.001 (Act respecting the protection of persons whose mental state presents a danger to themselves or to others) 10 2. Confinement in an Institution 2.3 Types of confinement 1. Voluntary confinement (patient consents and has capacity to do so); Preventive & Provisional are 2. Forced confinement: both are PRELIMINARY types of A. Preventive confinement, and usually lead to Motion for Authorized B. Provisional WHERE? confinement C. Authorized The confinement facility must be: An institution Provisional & operating a local Authorized require community service centre a written Motion equipped with the necessary facilities, or a hospital center (Articles 6 11  2. Confinement in an Institution 2.3 Types of confinement (cont’d) No one may be confined in a Burden of health or social services proof is on institution for a psychiatric health care assessment or following a establishment psychiatric assessment seeking concluding that confinement is person’s necessary, without the person’s confinement. consent OR without authorization by law or the court.” (CCQ 26 par 1) 12 2. Confinement in an Institution 2.3 Types of confinement (cont’d) As far as DANGER goes, it is important to keep in mind that: - Grave or important danger must be detailed in a way that is 1) specific or. personalized and 2) precise, without just a generic statement, thus i. A doubt as to the dangerousness of a patient does not constitute real danger; ii. The dangerousness of a patient must be such that it is justified to maintain his confinement. The fact that the patient may become dangerous again once he or she leaves the hospital is not sufficient to constitute danger. - For more examples and definitions, please see the governmental guidelines at https://numerique.banq.qc.ca/patrimoine/details/52327/3580415 13 2. Confinement in an Institution 2.4 Preventive Person must be a danger to himself/others Danger* must be grave and immediate Court order not required (ordered by physician) Possible to get assistance from peace officer 14 2. Confinement in an Institution 2.4 Preventative Article 27 CCQ (par. 2) aka preventative confinement If the danger is grave and immediate, the person may be placed under preventive confinement, without the authorization of the court, as provided for in the Act respecting the protection of persons whose mental state presents a danger to themselves or to others (chapter P-38.001). Can be ordered by any physician (not just psy) Report to the DPS immediately 15 2. Confinement in an Institution 2.4 Preventative In the event that a physician concludes that the criterion of danger is still present and the person concerned refuses to be assessed, the authorization of the Court to proceed with a PSY must be obtained before the expiration of the 72 hour period. The purpose is to obtain a court order extending the “preventive confinement” to a “provisional confinement” for the duration of the psychiatric assessment. ideally, the notification & filing of a motion to allow for psychiatric examination done w/in 24H) 16 2. Confinement in an Institution 2.4 Preventative Section 8 of Act P-38: A peace officer may, without the authorization of the court, take a person against his will to an institution: (1) At the request of a member of a crisis intervention unit who considers that the mental state of the person presents a grave and immediate danger to himself or to others; (2) at the request of the person having parental authority, the tutor to a minor or any of the persons mentioned in article 15 of the Civil Code, where no member of a crisis intervention unit is available in due time to assess the situation. In such a case, the peace officer must have good reason to believe that the mental state of the person concerned presents a grave and immediate danger to himself or to others A unit designed to take action in crisis situations pursuant to the mental health service organization plans provided for by the legislation respecting health services and social services (LSSSS). 👉🏿People don’t necessarily go to hospital of their own free will – this is the way to allow police officers to provide family members or other designated persons 17  2. Confinement in an Institution 2.4 Preventative Section 8 (cont’d) Subject to the provisions of section 23 and to more pressing medical emergencies, the institution to which the person is brought must take charge of the person upon arrival and have the person examined by a physician, who may place the person under preventive confinement in accordance with section 7. “Any institution which, owing to its organization or resources, is unable to provide for a psychiatric examination or place a person under confinement, must immediately direct any person for whom such services are required to another institution equipped with the necessary facilities.” 18 2. Confinement in an Institution 2.4 Preventative In the event that the person accepts to be examined, this examination must be carried out within 24 hours after he has been taken in charge by the institution. (CCQ 28 par 1) For the person to remain hospitalized, the first examination must conclude as to the necessity of the confinement. If not, the person must be released. 19 2. Confinement in an Institution 2.5 Provisional Person must be a danger to himself or to others (Grave or serious danger, which is not necessarily immediate, however the risk of that danger manifesting itself is high (probable or at least, clearly foreseeable in not too distant future) Court order is required on the request (a.k.a motion) of a a physician or an interested person Obtained if patient refuses to be evaluated for the purposes of further evaluating his or her dangerousness Usually part of the order will have conclusions in which police assistance is authorized or even ordered. 20 2. Confinement in an Institution 2.5 Provisional Confinement For use in situations where person is not in a hospital, but concerned persons feel that they represent danger to themselves or to others (Section 8 of P-38) Can apply to Court to force the psychiatric examination – Art. 28 CCQ If Court believes that person presents an immediate danger to themselves or to others, will order their Provisional confinement and psychiatric evaluation (and other specific medical exams pertaining to their state e.g. blood test) + 21 2. Confinement in an Institution 2.5 Provisional Confinement (cont’d) Article 27 CCQ: (par. 1) aka provisional confinement Where the court has serious reasons to believe that a person is a danger to himself or to others owing to his mental state, it may, on the application of a physician or an interested person and notwithstanding the absence of consent, order that he be confined temporarily in a health or social services institution for a psychiatric assessment. The court may also, where appropriate, authorize any other medical examination that is necessary in the circumstances. 👉🏿 The application, if refused, may not be submitted again except where different facts are alleged. 22 2. Confinement in an Institution 2.5 Provisional Confinement (cont’d) When a person is under preventative confinement, a 1st PSY must be carried out within 24 hours of arrival at hospital. (CCQ 28 par 1) (CCQ 28 par 2) After this first examination, a 2 nd PSY must be completed: Within 96 hours of arrival at hospital (following court order) – OR – If person was initially under preventive confinement and refused examination, within 48 hours of court order* *ex. if the patient was under 72 hour preventive confinement and refused all psychiatric evaluations. Was at hospital for 48 hours before present Motion for their forced evaluation – that’s where the 48 hour comes in. Courts don’t want patients to be there too long in limbo. But, if the patient wasn’t at hospital prior to Court order, that’s when the 96 hour limit applies. Both examinations must conclude that confinement is necessary (CCQ 30 par 1) and must be conducted by different psychiatrists. 23 ​ Forced Hospitalization Types​ Preventive​ Provisional​ Authorized Conditions​ Grave & immediate Danger to self-and/or Danger to self-and/or danger to self-and/or others others others Duration​ ​max 72 hours ​max 7 days after court ​Customarily set at 30 days order or less Clinically reviewed at 21 days if 30 days Evaluation​ Report with time, date, ​First psychiatrist evaluation ​Two psychiatric reports and facts is drawn up within 24 hours conclude the necessity of by a physician If first psychiatrist confinement evaluation concludes Observation by judge as to dangerousness, second dangerousness specifically psychiatrist evaluation mentioned legislatively within 48 hours, if already under confinement OR 96 hours Legal CCQ art. 27 CCQ art. 28 CCQ art. 30 Articles P-38 art. 2,7 Copyright © 2022art. P-38 Ingram 3 School of Nursin P-38 art. 9,10 V.1 g 2.6 Confinement in an Institution 2.6.1 Motion for Authorized Confinement - Process If one of the two physicians writing the PSYs reaches the conclusion that confinement is not necessary, the person must be released. (30 CCQ à contrario) The application for confinement must be presented to court within a maximum delay of 48 hours (Art. 28 CCQ): If both physicians reach the conclusion that confinement is necessary, the person may be kept under confinement without his consent or the authorization of the court for no longer than 48 hours. This is 48 hours AFTER the completion of the two PSYs. 25 2. Confinement in an Institution 2.6.1 Motion for Authorized Confinement - Process (cont’d) Art 396 CCP (Code of Civil Procedure) – provides 2 days for service of Motion for Confinement on patient. You can have delays abridged if things are getting tight. Motion must be served on patient as well as “reasonable” member of patient’s family or close friend within that delay (called the “Mise-en-cause”) If no such reasonable person exists, then the Public Curator is the Mise en cause. Privacy concerns: PSYs not served on Mise-en-cause, UNLESS it is the Public Curator 26 2. Confinement in an Institution 2.6.2 Motion for Authorized Confinement - Duration Maximum of 30 days If 30 days are not necessary – specify another timeframe. Patients should be released as soon as they are deemed not dangerous to themselves or to others. Judges have discretion to reduce duration based on their appreciation of evidence 27 2. Confinement in an Institution 2.6.3 Motion for Authorized Confinement – PSY content Art 29 CCQ: A psychiatric examination report must deal in particular with the necessity of confining the person in an institution if he is a danger to himself or to others owing to his mental state, with the ability of the person who has undergone the examination to care for himself or to administer his property and, where applicable, with the advisability of instituting protective supervision of the person of full age. 28 2. Confinement in an Institution 2.6.4 Motion for Authorized Confinement – Court order criteria Art 30 CCQ: Confinement in an institution following a psychiatric assessment may only be authorized by the court if both psychiatric reports conclude that confinement is necessary. Even if that is the case, the court may not authorize confinement unless the court itself has serious reasons to believe that the person is dangerous and that the person's confinement is necessary, whatever evidence may be otherwise presented to the court and even in the absence of any contrary medical opinion. 29 2. Confinement in an Institution 2.6.4 Motion for Authorized Confinement – Court order criteria (cont’d) Judges have significant discretion in these matters. Just because there’s no counter-expertise, doesn’t mean that Court will agree person requires confinement. Reports therefore need to be detailed enough to give them insight as to the patient’s condition and dangerousness. DIAGNOSIS OF MENTAL ILLNESS IS NOT SUFFICIENT 30 2. Confinement in an Institution 2.6.5 Motion for Authorized Confinement – Renewal At the expiry of the 30-day period, it is possible to extend the confinement for a maximum of 90 additional days. In order for the person to stay in confinement, a new examination must be carried out and the psychiatrist must conclude that the confinement is still necessary and indicate the duration (90 days or less). Follows similar process as initial Motion 31 2. Confinement in an Institution 2.6.5 Motion for Authorized Confinement – Renewal (cont’d) Two new PSYs should be done at the latest 48 hours before the expiry of the 30-day period. It will be still possible to extend the confinement for periods of 90 days at a time… but perhaps Motions for Treatment or Placement should be considered. 32 2. Confinement in an Institution 2.6.6 Motion for Confinement – End of Confinement Section 12 of Act P-38: Confinement ends, with no further formality, (1) As soon as a certificate attesting that confinement is no longer justified has been issued by the attending physician; (2) on the expiry of a time limit prescribed by section 10, if no psychiatric examination report has been produced by that time; (3) on the expiry of the time fixed in the judgment ordering confinement; or (4) upon a decision to that effect by the Administrative Tribunal of Québec or a court of justice. 👉🏿Warn the DPS upon discharge of patient 33 2. Confinement in an Institution 2.6.6 Motion for Confinement – End of Confinement Art. 30.1 CCQ: The person under confinement must be released as soon as confinement is no longer justified, even if the set period of confinement has not elapsed. Any confinement required beyond the duration set by the judgment must be authorized by the court, in accordance with the provisions of art. 30 CCQ (👉🏿 i.e. renewal proceeds in same way as initial Motion) 34 2. Confinement in an Institution 2.6.7 Motion for Confinement – Longer Confinement Section 10 of Act P-38: Where the court has set a duration of confinement exceeding 21 days, the person under confinement must be examined periodically to ascertain whether continued confinement is necessary, and reports of such examinations must be produced at the following times: 1. 21 days from the date of the decision made by the court pursuant to article 30 of the Civil Code; and 2. Every three months thereafter. The psychiatric examination reports shall be kept by the institution as part of the person's record. 35 2. Confinement in an Institution 2.7 Rights of the person under confinement See the Schedule of P-38, it sets out patient’s rights under confinement comprehensively (I have copied it to the last slide of this class) A person kept in confinement must be served the application for confinement, the exemption of service is exceptional; (exception = clinical) The testimony of the person is required unless the latter cannot be found or has fled or if it would be clearly useless to require his testimony or owing to his state of health. Patients allowed to communicate with outside persons (third parties) unless valid medical reason not to allow them to do so. Patient’s right to counsel (at all stages) 36 2. Confinement in an Institution 2.7 Rights of the person under confinement (cont’d) Every person confined in and receiving care in a health or social services establishment shall be informed by the establishment of the program of care established for him and of any important change in the program or in his living conditions (Art. 31 CCQ). Patients can also appeal their decisions: Tribunal Administratif du Québec - OR - Court of Appeal If the person is under 14 years of age or is incapable of giving his consent, the information is given to the person who is authorized to give consent to care on his behalf (also Art. 31 CCQ). 37 2. Confinement in an Institution 2.8 Potential issues in confinement Consent to care during confinement still needs to go through the Superior Court (so the health establishment can keep the person, but cannot treat them against their will) Use of restraints - pursuant to protocol (code white etc) – only if ordered or if emergency. AWOL - need to communicate with DPS’ office who will ask that patient be brought back to hospital via police 38  (NAME OF PERSON UNDER CONFINEMENT) You have been placed under confinement pursuant to a court decision based on two psychiatric examination reports. You have legal rights: (1) You have the right to be transferred to another institution, if your attending physician is of the opinion that such a transfer presents no serious and immediate risks for you or for others, and if the organization and resources of that institution allow it to receive you. (2) You have the right to require that you be released from confinement without delay if a psychiatric examination report, confirming the necessity of continuing your confinement, has not been produced within 21 days after the court decision and at least once every three months thereafter. In your case, the court decision was made on.............. and psychiatric examination reports were produced on the following dates:.............. (DATE OF EACH PSYCHIATRIC EXAMINATION REPORT PRODUCED) (3) You are required to submit to the psychiatric examinations referred to in paragraph 2. However, you may categorically refuse any other examination, care or treatment. If you do, your decision must be respected by the institution and by your physician, except if the examination or treatment was ordered by a judge, or in the case of emergency care or personal hygiene. (4) Even though you are under confinement, you may communicate confidentially, orally or in writing, with any person of your choice. However, your attending physician may decide, in your own interest, to prohibit you from communicating with certain persons or to impose restrictions on your communications. In such a case, the prohibition or restriction can only be temporary, and the physician’s decision must be given to you in writing and set out the reasons on which it is based. Your physician may not, however, prevent you from communicating with your representative, the person qualified to give consent to your care, an advocate, the Public Curator or the Administrative Tribunal of Québec. (5) If you disagree with a decision made to continue your confinement, or with any other decision made in your respect, you may refer your case to the Administrative Tribunal of Québec............... (ADDRESS)............................ (TELEPHONE NUMBER) (FAX NUMBER) This is how you proceed: (a) you yourself may write to the Tribunal or ask a family member or your tutor, curator or mandatary to write on your behalf; (b) you must explain in your letter, to the best of your ability, why you disagree with the continuance of confinement or the decision made in your respect; (c) your letter will constitute your application to the Tribunal, and must be sent to the above address within 60 days of the decision with which you disagree, but if you miss this deadline, the Tribunal may still decide to hear you if you give reasons to explain your delay; (d) the Tribunal may order your release from confinement or overturn the decision made concerning you, but must meet with you before reaching its decision; (e) you have the right to be represented by a lawyer at the meeting with the Tribunal, and to produce witnesses. (6) You must be released from confinement (a) as soon as a certificate concluding that confinement is no longer justified has been issued by your physician; (b) if a psychiatric examination report is not produced within the time limits set out in paragraph 2, upon the expiry of those time limits; 39 (c) on the expiry of the period of confinement fixed in the judgment; 3. Caselaw 3.1 Charles Le Moyne c. E.(F.) (CQ) Facts: Patient is a 20-year old male college student, and a member of the Canadian Armed Forces (Reserves). Brought to the hospital by police following a complaint made by one of his neighbours. He had been acting in a very hostile manner and accusing them of hiding a corpse in their apartment. Patient’s first hospitalization in psychiatry – no prior history of psychiatric illness. Family and friends testified that he does not represents danger to himself and/or to others. 40 3. Caselaw 3.1 Charles Le Moyne c. E.(F.) (CQ) (cont’d) Decision: Confinement ordered for a max of 21 days Although the conclusions contained in the PSYs would ordinarily be insufficient to lead to a conclusion that FE represents a danger to himself/others, the Court’s observations of his behaviour and content of his testimony suggest otherwise. When a psychotic person is acting on the basis of their delusions, they become dangerous because of their unpredictability. Confinement can be justified by a person who may act incomprehensibly/incoherently and thereby harm themselves or others. 41 3. Caselaw 3.2 CSSS Côte-de-Gaspé c.P(C)–EYB 2013-227952(CQ) Facts: Patient suffers from bipolar disorder (manic, psychotic phase). Hospital seeking to renew her confinement (has been in the hospital on two back-to-back 30 day confinement orders) Doctors feel her lack of insight and judgment, combined with her irritability and persecution complex continue to make her a danger to herself/others. 42 3. Caselaw 3.2 CSSS Côte-de-Gaspé c. P.(C.)(cont’d) Decision: Motion dismissed (confinement ends) The patient is no longer aggressive or menacing. She wants to go home and accepts her diagnosis and the need to take her medication. A person’s prior behaviour does not justify their continued confinement. The danger must be present in the short/medium term. Confinement orders must not be used in order to try to attain more optimum treatment of a person’s illness. The Court did not see any “danger signs” in the patient’s behaviour in Court. 43 3. Caselaw 3.3 Hôpital Maisonneuve-Rosemont c. H.(M.)–EYB 2013-219305 Facts: MH is a 33 year old man, in good physical health. He is unemployed and lives off social assistance. Suffers from schizotype personality disorder with delusional tendencies. He is refusing his treating psychiatrist’s suggestion to take antipsychotic medication via injection because due to the side effects associated with this medication. In spite of his colourful past, he has never been under medication (except for one brief period) 44 3. Caselaw 3.3 Hôpital Maisonneuve-Rosemont c.H.(M.)–EYB2013-219305 Decision: MH’s refusal is maintained Presence of a psychiatric order does NOT mean a person lacks legal capacity Refusal to obtain treatment for a psychiatric disorder does not make them incapable of refusing treatment. MH understands that he will keep “making mistakes” if unmedicated. He insists that he will follow every other aspect of the treatment plan The fact that treatment would be beneficial for a patient does not cancel their right to choose to forego treatment. 45 3. Caselaw 3.4 J.M. c. Hôpital Jean-Talon du (CIUSSS) du Nord-de- l'Île-de-Montréal, 2018 QCCA 378 Facts: The Appellant, JM, was taken to the Respondent’s hospital on 17.08.17 after uttering death threats at a stranger in a park. He was placed in preventive confinement. The next day, JM was subjected to a psychiatric examination, which, according to the Hospital, he has consented to. The psychiatrist’s report concludes that JM is afflicted with paranoid psychosis and early schizophrenia and, given the dangerousness of the appellant, recommends 21 days of temporary confinement. On 21.08.17, another psychiatrist met with JM for a second psychiatric examination, but the latter did not consent. This psychiatrist has nevertheless made the conclusion as to JM’s psychotic disorder and its dangerousness, also recommending a 21-day confinement. The Respondent has served JM with a motion for confinement on 22.08.17, and the Court of Quebec granted the motion 2 days later, despite JM’s argument of unlawfulness of preventive confinement, which would have exceeded the term prescribed by section 7 of P-38. 46 3. Caselaw 3.4 J.M. c. Hôpital Jean-Talon (cont’d) Decision: Appeal granted (Court of Quebec’s decision is overturned) The trial judge has erred in finding that JM has consented to the 2nd psychiatric examination and has confused consent to preventive confinement and consent to a psychiatric assessment. The report has specifically stated that JM had refused to cooperate with the assessment and thus, the judge should have excluded the report’s findings, which would have prevented her from granting the motion, since 30 CCQ explicitly requires 2 psychiatric reports. If the Appellant posed a danger to himself or to others, the Hospital, faced with the refusal of the second examination, was required to petition the court for an assessment order under 27 CCQ and if proven necessary, it could have subsequently petitioned the court under 30 CCQ. The court also notes that the psychiatric reports do not sufficiently explain the conclusion as to the dangerousness of the Appellant. The court concludes that JM was unlawfully kept under preventive confinement after the expiry of the period of 72 hours provided for under article 7 of P-38, noting that the hospital should have obtained the judicial extension under par 3 of article 7 of P-38, or released JM no later than 21.08.17, at the end of the preventative confinement period. 47 3. Caselaw 3.4 J.M. c. Hôpital Jean-Talon (cont’d) Notes: Given the protection awarded by the Charter, consent is a key element and confinement against the will of a person is an exception, which under law, must be interpreted restrictively. When a person presents a serious and immediate danger, he can be placed under preventative confinement for a maximum of 72 hours. Unless a court order is obtained within this 72-hour period, physicians are not allowed to extend the confinement out of their own volition and are required to release them. Like any other health care intervention/(soin), psychiatric assessment requires the informed consent of the person and their ability to consent must imperatively be verified prior to submitting the patient to a psychiatric evaluation. The obligation to inform the patient is incumbent on the physician/institution, who must also inform the user of his right to refuse the psychiatric evaluation. In the absence of consent, the health establishment must file a motion for temporary confinement, specifying the nature of the danger that one seeks to prevent, and petition the court for the authorization to to submit to a psychiatric evaluation. The reports based upon the psychiatric evaluations must include the demonstration, and not simply the affirmation, of the danger posed by the patient, but must be sufficiently detailed to enable the judge to be convinced of the danger posed by the patient and of the need for the requested custody. 48  4. Privacy - Patient access and medical records 4.1 General Hospital owns the medical *Medical professional record, may deny access if BUT info Patient has right to access information therein there is a significant likelihood of a in his own medical records* belongs to substantial adverse patients effect on the The patient also has the right to correct patient’s physical, information in his or her file that is mental or emotional health, or harm to a inaccurate, incomplete or ambiguous. third party. Right of access not absolute: Medical professional may deny access if there is a significant likelihood of a substantial adverse effect on the patient’s physical, mental or emotional health, or harm to a third 49 4. Privacy - Patient access and medical records 4.1 General (cont’d) AHSSS/LSSSS, Article 17 Click user “Every to edit Master 14 years of agetextorstyles over has right of access Second to his record. levelHowever, the institution may deny Third level him access to it temporarily if, on the advice of his attending physician Fourth level or the physician designated by the Fifth level executive director of the institution, communication of the record or any part thereof would likely be seriously prejudicial to the user’s health. In that case, the institution, on the recommendation of the physician, shall determine the time at which the record or the part thereof to which access has been denied can be communicated to the NUR1 - 424 user, and notify him thereof.” Copyright © 2022 Ingram School of Nursing V.1  4. Privacy - Patient access and medical records 4.1 General (cont’d) McInerney v. MacDonald, 2 S.C.R. 138 Here, Patient wanted a copy of the entirety of her file and Doctor has refused to provide her with the parts of the file provided by the other medical professionals, referring her to them directly. The Supreme Court confirms that medical professionals have a discretion to deny access – but that it is limited: - The onus lies on the doctor to justify an exception to the general rule of access - Medical professionals must have continued access to records to provide proper treatment. As such, “the patient is entitled to reasonable access to examine and copy the records provided the patient pays a legitimate fee for the preparation and reproduction of the information.” 51 4. Privacy - Patient access and medical records 4.2 Deceased patients Section 23 of the LSSSS: The heirs, legatees by particular title and legal representatives of a deceased user are entitled to be given communication of information contained in his record to the extent that such communication is necessary for the exercise of their rights in such capacity. The spouse, ascendants or direct descendants of a deceased user are entitled to be given communication of information relating to the cause of death of the user, unless the deceased user entered in writing in his record his refusal to grant such right of access. The holder of parental authority is entitled to be given communication of the information contained in the record of a user under 14 years of age even if the user is deceased. However, that right of access does not extend to information of a psychosocial nature. Notwithstanding the second paragraph, persons related by blood to a deceased user may be given communication of information contained in his record to the extent that such communication is necessary to verify the existence of a genetic or hereditary disease. 52 5. Privacy, confidentiality and care issues regarding minors Confidentiality issues specific to minors: 1. Parental access to a minor’s health information 2. Access by other bodies to minor’s health information 3. Statutory duties of disclosure 53 5. Privacy, confidentiality and care issues regarding minors 21. LSSSS The holder of parental authority is entitled to have access to the record of a user who is a minor…. Except (see next slide) 22. LSSSS The tutor, curator, mandatary or the person who may give his consent to care for a user is entitled to have access to the information contained in the record of the user to the extent that such communication is necessary for the exercise of that power….. 54 5. Privacy, confidentiality and care issues regarding minors Exceptions to 21 LSSSS: an institution shall refuse access where: 1) The user is under 14 years of age, and an intervention within the meaning of the Youth Protection Act has been made in his regard or a decision respecting him has been made, and the institution, after consulting the director of youth protection, determines that communication of the record of the user to the holder of parental authority will or could be prejudicial to the health of the user; 2) The user is 14 years of age or over and, after being consulted by the institution, refuses to allow his record to be communicated to the holder of parental authority and the institution determines that communication of the record of the user to the holder of parental authority will or could be prejudicial to the health of the user. 55 5. Privacy, confidentiality and care issues regarding minors Commission des droits de la personne et des droits de la jeunesse: Can investigate any situation where it believes that the rights of a child or of a group of children have been encroached upon by persons, institutions or bodies. (s.23 Youth Protection Act) May enter any facility maintained by an institution to consult on the premises the record relating to the case of a child and make copies thereof (s. 26 Youth Protection Act) Director of Youth Protection: If the director decides to act on a report regarding a child and if he deems it necessary to ensure the protection of the child, the director may enter a facility maintained by an institution to examine the record kept on the child and make copies of it. (s. 36 Youth Protection Act) 56 5. Privacy, confidentiality and care issues regarding minors Duty to report (“signalement”) – pursuant to s.38 ff of Youth Protection Act Every professional or employee of an institution who, by the very nature of his profession, provides care or any other form of assistance to children and who, in the practice of his profession, has reasonable grounds to believe that the security or development of a child is or may be considered to be in danger must bring the situation to the attention of the Director of Youth Protection without delay. Examples of when “security and development” IS in danger (section 38): Child is abandoned or neglected, Child is subjected to “psychological ill-treatment” or sexual or physical abuse, or Child has “serious behavioural disturbances” 57 5. Privacy, confidentiality and care issues regarding minors Examples of when “security and development” MAY BE in danger (section 38.1) Child leaves his own home, foster family, rehab center or hospital without authorization while his situation is not under responsibility of DYP Child is of school age and does not attend school or is frequently absent without cause 58 5. Privacy, confidentiality and care issues regarding minors – recap from last class Minors under 14 years of age: (Art. 14 CCQ) Consent required by the state of health of a minor is given by the person having parental authority or by his tutor. Minors over 14 years of age: (Art. 14 CCQ) May give consent alone to care required by the state of health (Persons having parental authority or tutor must be informed if his state of health requires that he remain in a health/social services establishment for over 12 hours) Court Order is Required: when necessary to cause a minor fourteen years of age or over to undergo care he refuses, except in the case of emergency if his life is in danger or his integrity threatened, in which case the consent of the person having parental authority or the tutor is sufficient. (Art. 16 CCQ) Therefore, if there is an emergency – parental consent is acceptable. 59 6. Management of Limited Resources and Patient Rights Limited budgets allocated to the health sector, coupled with our aging population produces some real tension between the demands made on the health care system and its ability to meet those demands (financially, terms of staff allocation, availability of equipment, specialists, etc.) LSSSS aims to mediate between these realities. 1. Rights and obligations contained in Act Respecting Health Services and Social Services (LSSSS) 2. What happens when these rights are in conflict? 2.1: Jasmin c Cité de la santé de Laval, AZ-90021046 (CS) 2.2: Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine (2007 QCCQ 5118) 2.3: JO vs. Hôpital Royal Victoria (2011 QCCS 5532 60  6. Management of Limited Resources & Patient Rights Every person is 6.1Key provisions (LSSSS) entitled to receive, with continuity and in a personalized AHSSS/LSSSS, Articles 4 to 16 Click to edit Master text styles and safe manner, Second level health services and Every person is Patients have the right to: social services Third level entitled to choose Continuity Fourth level and safety of services (art. 5)​ which are he professional or Receive Fifth services level in English (art. 15) ​ scientifically, he institution from humanly and whom or which he Be accompanied by a person of choice socially wishes to receive (art. 11)​ all within appropriate. health services or Choose a medical professional* the(art. material 6)​ ocial services. Nothing in this Act limits of the hall restrict the institutions reedom of a providing V.1 6. Management of Limited Resources & Patient Rights 6.1Key provisions (LSSSS) AHSSS/LSSSS, Click Article to edit Master text styles 13 Second level “The right to health services and social services Third level and the right to choose Fourth level a professional and an institution as provided Fifth level in sections 5 and 6 shall be exercised within the framework of the legislative and regulatory provisions relating to the organizational and operational structure of the institution and within the limits of “We the human, will get to you – material and financial resources at its disposal.” NUR1 - 424 We will do our best with the limite V.1 6. Management of Limited Resources & Patient Rights 6.2.1 Caselaw (Jasmin c Cité de la santé de Laval (AZ-90021046 (CS)) Facts: Plaintiffs (ob-gyn affiliated with the center and patients residing outside of the “designated municipalities) were asking for order declaring that two regulations adopted by hospital regarding accessibility to obstetrical and diagnostic services be declared null & void. Due to overwhelming demand, Hospital was trying to restrict access to obstetrical and certain diagnostic services only to residents of certain municipalities. The Hospital (defendant) was insisting that it had no choice but to adopt these policies to reduce its operating deficit due to budgetary restrictions placed on it by government. The defendant has also argued that the regulations set in place have been approved by the Health minister, adding that other hospitals in and around Laval that could provide these services to the population that would no longer be able to receive care from them. 63 6. Management of Limited Resources & Patient Rights 6.2.1 Caselaw (Jasmin c Cité de la santé de Laval) cont’d Decision: The Hospital cannot refuse to serve a patient on the basis of their residence. Reasons: Regulations deemed to be “discriminatory” in that they created preferential categories of users on the basis of their residence, contrary to Sections 5, 6 and 13 of LSSSS. The hospital could refuse to provide certain types of care if it is not available as a general rule in the hospital. But the moment it is available to one patient, it must be available to all. The regulations were held to be “ultra vires” hospital’s jurisdiction. 64 Jasmin v. Cité de la santé de Laval- recap Due to overwhelming demand Hospital adopted regulations to restrict access to obstetrical services to residents of certain municipalities. Challenged by OB-GYNs from hospital and patients who were restricted from accessing services. Ruled Discriminatory based on LSSSS article 5, 6, 13 Decision: If available to one patient, must be available to all. The hospital cannot refuse to The hospital did not have the right to make these regulations (“ultra vires”) serve a patient on the basis of their residence. 6. Management of Limited Resources & Patient Rights 6.2.2 Caselaw (Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine (2007 QCCQ 5118)) Facts: Plaintiff fell and broke her right wrist at home. She went to emergency room after her fall and the triage nurse classified her case as a “category 3” emergency. She waited from 17h10 until 23h00 before seeing a doctor. She did not receive any pain medication or a splint until that time. She needed to return the following day for her cast (which eventually needed to be removed & replaced 2 days later). She is suing the hospital in Small Claims due to her “inappropriate” care and her “abnormally” long wait in the emergency room. 66 6. Management of Limited Resources & Patient Rights 6.2.2 Caselaw (Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine) cont’d Decision: Decision: Plaintiff’s case was dismissed. Plaintiff’s case dismissed. Reasons: Ideally, category 3 patients should be seen within 30 minutes of triage, but this is only an ideal objective, not a legal obligation or an obligation of result. Delays need to be evaluated on the basis of how busy the emergency room is on a given day and the hospital’s limited resources. Note Hospital personnel testified that average wait that day in the emergency room was about 9 hours due to number of people (a very busy day). Only one doctor on call that day, but the hospital had called in additional nurses. But no other doctors available – Court held that hospital did the best it could do with the limited resources at its disposal. 67 6. Management of Limited Resources & Patient Rights 6.2.2 Caselaw (Noël-Voizard c. CSSS Lasalle et du Vieux-Lachine) cont’d Para 48: Il n'existe pas, en droit québécois, de responsabilité sans faute. Pour réussir, la demanderesse doit faire la preuve d'une faute commise par l'hôpital engendrant des séquelles pour la demanderesse. Or, malheureusement et même si le Tribunal est bien conscient que madame a été souffrante pendant son attente, rien ne démontre qu'une faute a été commise par le Centre hospitalier. Il appert de la preuve que madame a été prise en charge, que des radiographies ont été prises rapidement et que le médecin, le soir du 17 mai 2004, a rencontré la patiente mais que devant l'obligation de mettre une emplâtre et l'absence d'orthopédiste ce soir-là à l'hôpital, il a retourné madame à son domicile pour qu'elle soit revue le lendemain matin en orthopédie, ce qui a été fait. Para 50: Tel que déjà mentionné, même si le Tribunal déplore la lenteur du système et surtout le fait que madame a dû patienter plusieurs heures dans une salle d'attente inconfortablement installée, le Tribunal ne peut en attribuer la faute civile au Centre hospitalier. Celui-ci répondait à la demande compte tenu des effectifs qu'il avait en place pour ce faire. 68 6. Management of Limited Resources & Patient Rights 6.2.3 Caselaw (J.O. vs. Hôpital Royal Victoria (2011 QCCS 5532)) Facts: JO was a dialysis patient at RVH who was well known for being extremely verbally abusive to all members of the Hospital’s staff and doctors. After much discussion, his treating team declined to put him on the active kidney transplant waiting list, largely due to behavioural issues that they felt made him an unsuitable candidate. JO instituted proceedings to obtain an injunction to be put back onto the active list & to force doctors to perform a transplant once a kidney became available. Note that - JO has already been transferred from another hospital because had been physically aggressive with a nurse (threatened to kill her). He was sending piles of registered letters, using abusive language, firing everyone left and right if they didn’t do what he said. Had no treating/theraputic relationship whatsoever with his nephrologist, Dr Cybulsky. - Injunction was also to force doctors to perform transplant if a kidney became available. He was rather paranoid, felt that there was massive conspiracy with Quebec Transplant & hospital to deny him access to a kidney. 69 6. Management of Limited Resources & Patient Rights 6.2.3 Caselaw (J.O. vs. Hôpital Royal Victoria) cont’d Hospital “counter-sued” in order to obtain an order allowing them to transfer his care to another health care establishment, should one be found that would be willing to take him on (easier said than done). They had tried to transfer him but he refused to consent to allow another professional to study his file – because of right to privacy, were at an impasse. Furthermore, because he had right to choose establishment, couldn’t refuse care for his life-saving dialysis treatments. Para 39: La greffe d'un rein suppose un long travail de préparation et un long suivi après greffe qui exige une étroite collaboration de l'équipe incluant le patient. Il n'est peut-être pas nécessaire de s'aimer dans ce genre de relation, mais il est contre-indiqué de se détester. Transplant involves long-term care – care for rest of a patient’s life. Impossible to provide that kind of care if there is no longer a therapeutic relationship. Dialysis care is impossible to provide in this context as well. But he has to be transferred to another Hospital in order to receive this care – RVH can’t just drop him (Art. 5 LSSSS). (Note that the transfer process didn’t eventually take place – Mr. O wound up calming down and he continues to be followed at RVH.) Also, an interesting point that echoes our first class is made by court by citing Ferland c. Québec (Ministère de la Santé et des Services sociaux), (C.S., 2004-07-12) : other than for vital services, such as dialysis, nothing in LSSSS obliges a doctor or a nurse to treat the patient, and the Doctors’ Code of Ethics allow them to put an end to a therapeutic relationship because of patient’s abusive behaviour; 70 6. Management of Limited Resources & Patient Rights 6.2.3 Caselaw (J.O. vs. Hôpital Royal Victoria) cont’d Decision: Mr. O could not force his treating team to put him on the active kidney transplant waiting list. Furthermore, given his behaviour, Motion to have his dialysis care transferred to another hospital was granted. Reasons: Mr. O had systematically destroyed his therapeutic relationship with his treating team. Although Hospital had an obligation to continue to provide him with life-saving care (dialysis), they could not be forced to perform a transplant under the circumstances. Furthermore, Mr. O’s behaviour made it impossible for Hospital to continue to provide dialysis care. 71 THANK YOU for your attention! 72