The Law and Health Care
Chapter 8
Copyright 2016
2010 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Learning Objectives
4.1 Describe the laws used in health care
legislation and their classifications.
4.2 Explain the federal and provincial jurisdictional
framework in Canada.
4.3 Outline the concerns about and the issues
related to health cares being a right.
4.4 Discuss the legality of offering private services
in Canada.
Learning Objectives
4.5 Understand the basic principles of consent to
treatment.
4.6 Discuss the health record and issues
surrounding the privacy of health information.
4.7 Describe the role of self-governing health care
professions in legal matters.
4.8 Identify some other important legal issues in
Canadian health care.
Canadian Charter of Rights and
Freedoms
Under the Constitution, everyone has the
following fundamental freedoms:
Freedom of conscience and religion
Freedom of thought, belief, opinion, and
expression, including freedom of the press
Freedom of peaceful assembly
Freedom of association
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Statutory Law versus
Regulatory Law
Statutory laws are the laws passed in Parliament (i.e.,
at the federal level) or in the provincial or territorial
legislatures.
Regulatory law possesses the legally binding feature of
an act; however, regulatory law is made by delegated
persons or organizations, such as an administrative
agency or a tribunal.
For example, the Food and Drugs Act enables Health Canadas
food and drug regulations
In health care, regulatory law affects hospital boards,
health care institutions, and bodies governing health care
professionals.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Common (Case) Law and
Civil Law in Canada
The legal system in all provinces and territories
except Quebec is based on common law.
Common law, also called case law, results
from judges decisions, which are based on
precedentsrulings other judges made in
previous similar cases.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Tort Law
Tort law covers wrongful acts, intended or not,
that result in harm or damage to another
person or another persons property.
Health care professionals may be accused of
a tort if a patient experiences physical or
emotional injury resulting from something the
health care professional did, whether
intentionally or unintentionally.
Unintentional torts may result from acts of
outright negligence, misjudgment, or human
error.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Negligence
Negligence, also referred to as malpractice, occurs
when a health care professional fails to meet the
standards of care of his or her profession.
Negligence can result from
Forgetting to perform an action
Not caring or confirming whether a particular action is performed
Intentionally or unintentionally providing improper or substandard
care
Providing a patient with unclear instructions
Failing to successfully instruct a patient in how to follow a
treatment plan
Professional misconduct is behaviour or some act or
omission that falls short of what would be proper in the
circumstances, such as
Deviating from a professions standards of practice
Violating the boundaries of a professionalpatient relationship
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Other Types of Law
Contract law concerns legally binding contracts
voluntary agreements between two or more parties.
A breach of contract occurs when one of the parties fails to
meet the terms of the agreement.
Criminal law deals with crimes against the state or
crimes deemed intolerable within society, such as
murder, racism, and theft.
In the health care field, examples of crimes punishable
under criminal law include
Using a health card fraudulently
Practising surgery without a licence
Trafficking narcotics
Performing euthanasia
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
Federal and Provincial Jurisdictional
Framework
Initially, the provinces assumed responsibility for
the establishment, maintenance, and
management of hospitals, asylums, charities in
and for the province, other than for marine
hospitals.
The federal government retained authority over
Health care for certain population groups
The provision of federal funds to the provinces and
territories
Certain components of health care activity covered
by the Criminal Code of Canada
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
10
Occupational Health and Safety:
Jurisdictions
The federal government manages labour affairs for
Employees of the federal government and of federal
corporations
Individuals working in occupations that cross provincial and
territorial lines
The federal public service sector
Each province and territory hosts an occupational
health and safety agency, which enacts legislation for
ensuring a safe workplace for all Canadians.
Workers Compensation Boards concentrate
specifically on assisting injured employees by providing
wages, rehabilitation, and training.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
11
Drugs and the Law
Canadas drug laws are covered primarily by
federal legislation called the Controlled Drug
and Substances Act, which
Categorizes drugs based on their potential for harm
Outlines for hospitals and health care professionals
Who can prescribe controlled drugs
How to dispense and monitor controlled drugs in facilities
It is illegal for any medical practitioner to
administer, prescribe, or provide a person with
narcotics except for legal, therapeutic purposes.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
12
Health Canada Emergency
Powers
Under the Constitution, the federal government
can enact laws to manage health-related
emergencies of national concern.
For example, the Quarantine Act, updated in
2005, allows the federal government to
Divert aircraft or cruise ships
Designate quarantine facilities
Restrict or even prohibit travellers who represent a
serious public health risk from entering Canada
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
13
Health Care as a Right
Many Canadians regard health care as a
fundamental right, even though it is not specifically
identified in the Canadian Charter of Rights and
Freedoms.
Health care is a legal right under the Canada
Health Act, but this right is limited by conditions of
the act, such as the concept of medically
necessary services
Challenges relating to the right to health care
often arise under sections 7 and 15 of the Charter.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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The Legality of Private Services
in Canada
The concept of medically necessary plays a
huge role in what private clinics can legally offer
Canada has always had some level of private
health care and private health care services vary
from province to province
Doctors may work in either a public or a private
system or in both
Independent health care facilities rely on
referrals from doctors
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Informed Consent to Treatment
In order to provide informed consent, a patient
must understand, consent to, and accept the
treatment and its foreseeable risks.
When doubt exists about a persons capacity to
understand the information provided, the health
care professional must determine whether the
person is capable of giving consent to
treatment.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Elements of Informed Consent
Consent must be informed and voluntary
When a treatment is recommended, patients must
understand
The treatment or procedure recommended
The risks, side effects, benefits, and expected outcomes
The implications of refusing
Alternatives to the proposed treatment
Patients must not feel
Compelled to make a decision for fear of criticism
Pressured toward any particular decision
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Types of Consent
Express consent can be written or oral and
indicates a clear choice on the part of the patient
Written consent is required for all major medical
interventions. Most consent forms have to be
signed by the patient, dated, and witnessed.
Oral consent is given by spoken word over the
phone or in person and is equally binding.
Implied consent occurs by virtue of the fact that
an individual seeks the care of a physician or
other health care professionals.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Who Can Give Consent
A capable person receiving the intervention most
often gives consent for the treatment. If an
individual is not capable, consent may be
provided by the
Power of attorney or other legal representative
Next of kin, usually in a predetermined order
No specific age defines a minor when it comes to
consent to treatment.
As long as the minor fully understands the
treatment and its risks and benefits, health care
professionals must respect his or her wishes.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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The Health Record
The health record is an accumulation of
information relating to a persons interaction with
health care services.
A health record in a hospital setting will have
more components than one in a clinic setting.
Health care providers must, by law, record
information concisely, clearly, and accurately.
All entries must be dated and signed or initialled.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Ownership of Health Information
The health care facility that collects the
information and creates the health record owns
the patients physical chart.
The health information itself, however, belongs to
the patient.
Patients retain the right to request a copy of their
information.
When a third party requests a patients health
information, the patient must provide written
consent for its release, or a court of law may
order the release of such information.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Federal Legislation and Privacy
Laws
Each of Canadas provinces and territories implements
its own privacy legislation.
Two related federal acts contribute to this protection:
The Privacy Act limits the private information federal
government departments and agencies collect from individuals
The Personal Information Protection and Electronic Documents
Act (PIPEDA) protects personal information preserved in the
private sector
In most jurisdictions, personal information collected by
health care facilities remains under the protection of
province- or territory-generated, public-sector legislation.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Confidentiality
Health care professionals must legally and ethically
keep all health information confidential.
Any health care professional involved directly in a
patients case (i.e., the patients circle of care), legally
has access to that patients information.
In the hospital setting, the circle of care may include
Doctors
Nurses
Social workers
Physiotherapists
Other members of the health care team
Administrative personnel
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Electronic Health Information
Requirements
Both electronic and hard copy records are
subject to the principles of confidentiality and the
protection of health information.
With the support of the Canadian Health
Information Management Association, several
organizations, including the Canada Health
Infoway, are working toward introducing
electronic health information systems at a
national level.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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Regulated Health Care Professionals
All regulated professions have a system in place
for dealing with complaints against their
members and for dealing with members charged
with an offence.
Patients who have complaints against health
care professionals may launch a legal complaint
as well as a complaint to the related regulatory
organization.
Every profession has a code of ethics that
provides moral and ethical guidelines.
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Other Legal Issues in Health Care
Some important legal issues in Canadian health
care include
The use of restraints
Patient self-discharge from a hospital
Good Samaritan laws
Whistleblowing
Legislation governing these areas is sometimes
ambiguous.
Copyright 2016 Elsevier Canada, a division of Reed Elsevier Canada, Ltd.
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