class2 nursing and the law

canadian law is ?/

• The Constitution of Canada: The supreme legal document that sets the rules for how government operates, how laws are enacted, and how authority is distributed. All federal and provincial laws must conform to it.

• The Constitution Act, 1982: Signed and proclaimed by Queen Elizabethu, patriating the Constitution and formally embedding the Canadian Charter of Rights and Freedoms.

• Rule of Law: Every person, organization, and level of government is subject to the law, and basic civil rights must be respected

candian charter of right-Fundamental Freedoms (Section 2)

• Freedom of conscience and religion (freedom to believe and practice as one chooses).

• Freedom of thought, belief, opinion, and expression, including freedom of the press and other media.

• Freedom of peaceful assembly and freedom of association.

candian charter of right-Democratic Rights (Sections 3 to 5

• Every Canadian citizen holds the right to vote in federal and provincial elections.

• Right to run for public office and participate in democratic governance.

candian charter of right-Mobility Rights (Section 6)

• Right of Canadian citizens and permanent residents to enter, remain in, and leave Canada.

• Right to move to, take up residence in, and pursue a livelihood (work) in any province or territory.

candian charter of right-Legal Rights (Sections 7 to 14):

• Protection of life, liberty, and personal security (Section 7).

• Protection against unreasonable search and seizure, arbitrary detention, and cruel or unusual punishment.

• Right to be presumed innocent until proven guilty, to access legal counsel upon arrest, and to a fair, public trial.

candian charter of right0equality right

• Equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

• Explicit protections based on race, national or ethnic origin, colour, religion, sex, age, or mental/physical disability.

candian charter of right-Official Language Rights (Sections 16 to 22):

• English and French are established as the official languages of Canada, possessing equality of status and equal rights in federal parliamentary and institutional use.

• Minority language educational rights for qualifying communities (Section 23).

cnadian enforcemtn and judicial remedy

• Access to Courts (Section 24): Anyone whose Charter rights or freedoms have been infringed or denied can apply to a competent court for a legal remedy.

• Supremacy Clause (Section 52): Any statute or government regulation that violates the Constitution is inconsistent and has no legal force or effect.

• Societal Purpose: Establishes the constitutional baseline for an open, democratic society anchored in equality, individual freedoms, and access to justice.

Canada Health Act (CHA, 1984)

he Canada Health Act establishes the national criteria and conditions that provincial and territorial health insurance plans must fulfill to qualify for their full cash contribution via the Canada Health Transfer (CHT).

CHA 5 criteria

The 5 Program Criteria

• 1. Public Administration: The provincial health insurance plan must be administered on a non-profit basis by a public authority appointed by the provincial government,

• 2. Comprehensiveness: Must cover all medically necessary insured health services provided by hospitals, medical practitioners , and surgical-dental work that can only be safely performed in

• 3. Universality: insured provincial residents must be entitled to insured health services on uniform terms and conditions, without discrimination based on age, income, or health status.

• 4. Portability:

• Residents temporarily absent from their home province must remain covered for emergency and necessary services.

• 5. Accessibility:

• Insured services must be provided on uniform terms and conditions without financial, geographic, or administrative barriers preventing reasonable access

CHA 2conditions

• 1. Information: Provinces and territories must provide relevant information, statistics, and annual reports to the federal Minister of Health regarding their health insurance systems.

• 2. Recognition: Provinces and territories must give public recognition to federal contributions (the Canada Health Transfer) supporting their insured health care services.

Provisions on Extra-Billing and User Charges

• Extra-Billing: Charging an insured patient an amount aboveplan covers for an insured service.

• User Charges: Any direct fee or surcharge imposed on an insured patient at the point of care for receiving an insured service.

• Financial Penalty: Any dollar amount collected from patients via extra-billing triggers a mandatory, dollar-for-dollar deduction from that province's federal Canada Health Transfer (CHT) cash payments.

Does the adult have the capacity to consent to care?

• General Legal Baseline: Capacity to consent to care is presumed in adults unless proven otherwise.

• Assessment Criteria for Incapacity: To declare an adult legally incapable of giving consent, a MD must evaluate if can understand:

  • The nature of illness.

  • The nature, purpose, and rationale of the proposed treatment.

  • The expected advantages, benefits, and foreseeable risks of the treatment.

  • risks and prognosis of refusing or the treatment.

Decision Tree Node 2: Adult consents or refuses (Capable Adult Branch)

• Requirements for Valid Consent:

  • Free: Given voluntarily without coercion, emotional manipulation, duress, or deception.

  • Enlightened (Informed): The individual has been given clear, comprehensive information required to reach an informed choice.

• Refusal Rights: A capable adult holds the legal right to accept or refuse any treatment, even if results in clinical decline or death.

Categorical Refusal ( If No Capacity + Categorical Refusal)

•  A clear, categorical indication of refusal expressed verbally, behaviourally, or through prior formal documentation.

  • Documented refusal of specific therapies due to religious convictions

  • Refusal by an individual experiencing a medical or psychiatric condition that induces severe distrust

  • If an incapable adult manifests l refusal, care cannot simply be authorized by a substitute decision-maker; a Court Order must be obtained to administer treatment.

Has the adult completed Advance Medical Directives (AMD)?

• If Yes: Follow the written directives in the official registry/document.

• If No: Proceed to identify a legal substitute decision-maker.

Hierarchy of substitue decision maker

• Legal representative: Appointed mandatary (under a protection mandate), tutor, or curator.

• Spouse or partner: Married spouse, civil-union spouse, or common-law partner.

• Close relation: A close family relative or an individual showing a special interest (e.g., a trusted close friend).

• Public Curator: If no family member, partner, or friend can be located or is willing to act, a public curator is designated (provisional or permanent).

Guiding Principles for Substitute Consent (CCQ, Art. 12):

• substitute decision-maker must act strictly in the sole interest of the patient.

• respect and comply with any previously expressed wishes of the person

• Must ensure the proposed care is beneficial, advisable under the circumstances, and that the risks are not disproportionate to expected therapeutic benefits.

Is care required for an emergency? (CCQ, Art. 13)

• Emergency Exception Criteria: Consent is not legally required if:

  1. The life of the patient is in immediate danger or their physical integrity is threatened, AND

  2. Consent cannot be obtained in due time from the patient or a substitute decision-maker.

• Exceptions to Emergency Treatment: Consent is still strictly required if the proposed care is unusual, has become medically futile/useless, or if the expected consequences would be intolerable to the person.

ethic and law

 Laws are formal, binding rules enforced by society through courts and government.

Ethics are internal or professional standards of right conduct derived from moral thinking.

While laws generally aim to codify morality, discrepancies frequently arise: illegal actions can be morally justifiable and unethical actions can remain legal

source and system of law

• originates from constitutions (powers of government and human rights),

• statutes (enacted by federal or provincial/territorial parliaments)

• administrative rules (delegated powers to agencies and professional regulatory bodies)

• and common law (case law based on judicial precedent). Outside of Quebec (which follows French civil law), Canadian private law operates under common law.

Branches of Law:

• Public Law: Governs relationships between individuals and the government (constitutional, administrative, and criminal law). Criminal law classifies offenses as indictable (serious) or summary (less serious).

• Private (Civil) Law: Regulates relationships between individuals, focusing on contract law and tort law.

Unintentional Torts (Negligence and Malpractice):

 The most common legal claims in nursing. Negligence is the failure to deliver reasonable and prudent care.

(1) a legal duty of care existed

(2) the duty was breached

(3) demonstrable injury occurred,

(4) the breach directly caused the injury.

Intentional Torts

 Willful actions violating rights or property.

Includes fraud (deliberate deception for gain

assault (threat of imminent violence/touching)

battery (unlawful or non-consensual touching, even if beneficent), false imprisonment (unjustified detention/restraint)

defamation (slander spoken, libel written), and intentional infliction of emotional distres

Informed Consen

bodily integrity and autonomy.

(1) voluntary (free of coercion

(2) informed (clear explanation of condition, treatment, risks, benefits, and alternatives)

(3) specific to the treatment and the healthcare provider,

(4) decision-making capacity. For minors, common law uses the case-by-case "mature minor" doctrine, while adults with diminished capacity require substitute decision-makers or advance medical directives

Documentation Standards

clear, contemporaneous, concise, accurate, and nonjudgmental documentation is both a professional and legal requirement. Charting serves as admissible record evidence in malpractice litigation.

Gaps in notes can imply care was not delivered

• Privacy & Confidentiality:

• Privacy is an individual constitutional right

• while confidentiality is the provider's duty not to disclose personal information.

• Regulated federally by the Privacy Act and PIPEDA, plus provincial health privacy acts

• . Exceptions include patient consent, mandatory reporting (child abuse, certain communicable diseases), or court subpoenas.

Can laws be unethical?

• Laws are created by human beings serving in official capacities and reflect societal and political compromises that can lag behind moral progress or violate human dignity.

Can ethical actions be illegal?

• Moral duties (such as preserving human life, preventing imminent violence, or civil disobedience against unjust systems) can directly conflict with statutory law.

 Legal Foundations in Canada

How does Canadian law impact nursing practice?

• It delineates and authorizes the legal scope of nursing through provincial nursing practice and regulatory acts.

• It sets standards of civil liability (tort law) and criminal accountability (the federal Criminal Code) for nursing acts and omissions.

• enforces professional competence through regulatory bodies (administrative law) whose primary statutory mandate is the protection of the public.

Thinking specifically about death and dying, what parts of the legal framework apply?

• Federal Criminal Law: The Criminal Code of Canada governs provisions and legal exemptions regarding Medical Assistance in Dying (MAID) and homicide/negligence prohibitions.

• Provincial Statutory Law: Provincial consent and advance directive legislation (such as substitute decision-making acts and health care consent acts).

• Constitutional Rights: Charter of Rights and Freedoms (right to life, liberty, and security of the person).

negligence

• Negligence is the failure to provide a reasonable and prudent standard of care, resulting in unintentional injury or harm through an act of omission (failing to act) or commission (acting improperly).

• A nurse is held legally liable in a civil negligence suit when all four elements are established:

1. A duty of care existed between the nurse and the patient.

2. The nurse breached that duty by providing care falling below accepted professional standards.

3. The patient suffered demonstrable injury or harm.

4. The injury resulted directly from the negligent conduct or omission of the nurse

liable when practicing beyond their certified competencies, making preventable medication errors, or failing to maintain up-to-date knowledge.

Tort

 A civil wrong or injury resulting from someone else's action or omission

Fiduciary Duty / Duty of Care

• The legal and ethical obligation to act beneficently and prevent foreseeable harm to another who places trust in the professional.

• Foreseeability

Having the specialized professional knowledge to recognize that a particular action or omission could lead to patient harm.

Assault vs. Battery:

 Assault is the intentional threat or attempt to cause harm using force (no contact required); battery is any unlawful, unwarranted, or non-consensual physical contact (even if beneficent)

false imprisionment

• Unjustified detention or confinement without consent or legal authority.

Defamation (Slander and Libel):

 False or derogatory remarks damaging a person’s reputation (slander is verbal; libel is written).

• legal requirements of documentation align with what is found in the OIIQ and CNA codes of ethics?
  
  

  • Legal Alignment

Legally, the medical chart is a "business record" and primary piece of evidence in court.

Incomplete or absent notes leave the quality of care defenseless and may lead courts to conclude that undocumented care was never delivered

ethical alighment found in cna and oiiq

• emphasize that objective, truthful, and timely documentation is a core professional responsibility. Falsifying or altering charts is professional misconduct. Both codes require nurses to refrain from speculative, judgmental statements to preserve patient dignity, respect autonomy, and avoid libel.

• What are the essential requirements of informed consent?

• Voluntary: Given freely without coercion, manipulation, or undue influence.

• Informed: The patient must receive complete, comprehensible information covering their medical condition, the nature and purpose of treatment, anticipated benefits, risks, alternatives, and the consequences of refusing care.

• Specific to Treatment and Provider: Consent it applies directly to the specific procedure and the specific clinician performing it.

• Capacity: The patient must have the legal and mental capacity to understand the relevant info

• In what types of situations can consent be delegated and what are the key features of this delegation?

Situations: When an adult patient is formally deemed to lack decision-making capacity due to cognitive impairment, acute delirium, advanced dementia, or unconsciousness.

key feature of delegation

• governed by provincial substitute decision-making statutes.

• Authority falls to legally appointed proxies or statutory family hierarchies.

• The substitute decision-maker is legally and ethically obligated to replicate what the patient would have decided based on known prior expressed wishes or make decisions in the patient's best interests.

• What considerations arise in pediatric consent (A.C. v. Manitoba, Tyrell Dueck)?

• Capacity is dynamic and developmental; it does not suddenly appear at age 18.

• Under common law, adolescents can be deemed mature minors on a case-by-case basis depending on intelligence, maturity, and understanding of treatment consequences.
  
  

• Ho courts can still intervene to order life-saving treatment for a minor under 16 if deemed in their "best interests," even if the minor objects on religious grounds.

• Parental refusal of life-saving care for a child triggers child welfare intervention to protect the child's right to survival.

What did Starson v. Swayze establish regarding capacity to refuse treatment?

• The Supreme Court of Canada affirmed that a competent person retains the absolute right to refuse medical treatment even if that decision is contrary to medical advice

• As long as the individual demonstrates that they can understand the nature of the condition and appreciate the consequences of their choice, they cannot be deemed legally incapable merely because they refuse a recommended therapy.