Laws used in Health Care Legislation

• Constitutional Law: addresses the relationship between the people and their government, it establishes, allocated, and limits public power

  • It deals with the legislation recorded in the constitution

  • Legislation: laws by the provincial or territorial legislature or by parliament

  • Once passing the necessary test one has a right to practice simultaneously accepting the responsibility to practice ethically and legally

    • Ethics: what you should and should not do

    • Laws: what you can and can not do

  • Everyone has the fundamental right of freedom to:

    • Conscience and religion

    • Thought, belief, and opinion, including freedom of the press

• Statutory Law: laws passed in Parliament (federal) or in the provincial/territorial legislatures

  • Aka a statute

• Regulatory Law: a form of law that possesses the legally binding feature of an act, since it is usually made under the authority of an act

  • Aka subordinate legislation

  • They are not made by the Parliament or the province but by the tribunal or administrative agency

  • Must be outlined either federally or provincially

• Common (CASE) Law & Civil Law in Canada

  • Common Law or Case Law: is based on a judge who decided by consulting with previous court decisions, historically established laws, interpretations, and other principles not outlined in the statutory law.

• Classifications of Law: Public & Private Law

  • Public Law: matter between an individual and society as a whole

  • Private Law: matters concerning relationships people or legal entities

  • Civil lawsuits deal with the relationship between people

• Classifications of Law: Public & Private Law/ Tort Law: when a person or their property is wronged or damaged both intentionally or not

  • Intentional Tort: when a harmful act is deliberate

    • In Healthcare it is typically seen as physical aggression or forcing unwanted medication treatment

  • Unintentional Tort: when the act causes physical or emotional damage but was not deliberate or calculated

    • Such as human error and misjudgment

  • Negligence: same is a type of torte law

    • When a healthcare provider fails to meet the standards of care provided for their profession

    • Maybe malpractice, professional misconduct

  • Litigation and the duty of care: consider the standard of competency that a “reasonable person” is expected to meet

• Classifications of Law: Public & Private Law/ Contract Law: private agreements typically enforceable by the courts that are either implied or expressed that do not violate any governing laws

• Classifications of Law: Public & Private Law/ Criminal Law: set out in federal legislation found in the Criminal Code of Canada

  • Deals with crimes against people and/or property and those deemed intolerable to society

    • Ex. murder, racism, theft

  • They must perform a wrongful act (actus reus) and a wrongful intent (mens rea)

  • In healthcare punishable crimes are

    • Using someone else’s health care (fraud)

    • Practicing surgery without a license (fraud)

    • Trafficking narcotics

    • Performing euthanasia

The Law, The Division of Power, and the Jurisdictional Framework

• The federal government retained jurisdiction of Health care for certain population groups and retains the provision of federal funds to provinces or territories

• “Peace, order and good government” (Constitution Act, 1982) allows the government to enact emergency powers allowing them to take control of what is typically the provinces’ jurisdiction

Workplace Safety

• Under federal jurisdiction

• Covered by the Workers’ Compensation Act with WHIMIS legislation

  • Both fall under the federal Hazardous Products Act

• Occupational Health and Safety

  • Provided by each province

  • To prevent workplace injuries and occupational diseases

    • To reduce the impact of a work-related injury or illness on the workers and their loved ones

  • The responsibility of overseeing the ministry or department of labor

  • Applies to all workplaces except work done by private owners and those overseen by the federal government

• Occupational Health and Safety: Objectives

  • Employees rights

    • Right to be aware of potential health and safety hazards

    • Right to take part in health and safety activities

    • Right to refuse dangerous work

• Occupational Health and Safety: Compensation Boards

  • Work with the CCOHS

  • Concentrate on rehabilitation, training, and wage replacement

  • WHMIS was created in 1988

    • Enforced in all jurisdictions

    • Named the Controlled Drugs and Substances Act

Drugs and the Law

• Controlled Drugs and Prescriptions

  • Controlled Drugs and Substances Act states who can prescribe

    • And how they are given out

  • In Hospital settings what’s called Narcotics are kept in a double-locked dispenses area

  • Or held in a machine that dispenses the mediation for them leaving a smaller margin for error

  • Can only be prescribed for therapeutic uses

• Opioid Crisis

  • Health Canada has shown an alarming rate of opioid-related deaths

  • They are trying to work with the provinces and territories to bring the number of deaths down

    • Are limiting the number of opioids prescribed

  • Regular checks are done to make sure pharmacies are doing when they can to prevent narcotics from getting into the wrong hands

    • A chain of custody is always maintained

Cannabis

• While is now legalized there are still special precautions set out by the provincial, territorial, and federally

• Most Doctors prescribing medical marijuana typically send their patients to Medical Cannabis Clinics

• Under the food and Drugs Act advertising prescription drugs had very specific regulations that Cannabis regulated or not has to follow

1. Reminder advisement: can advertise drugs using the brand name but cannot mention directly their uses

2. Disease-oriented ads: instead of using a brand name they discuss a condition and say they should ask their doctors

Health Canada’s Emergency Powers

• Quarantine Act

  • Gives the federal government control to:

    • Divert aircraft and cruise ships

    • Designate quarantine facilities anywhere

    • Restrict and prohibit travelers from entering Canada

  • Environmental Health officers have also been created and given the authority to assess, screen, and detain others who pose to be a health risk

  • International Health Regulations

    • Outline strategies to prevent the global spread of infectious diseases

    • They work to screen six different infectious diseases around the world to prevent the World-Wide Spread

Health Care as a Right

• Canadian Charter of Rights and Freedoms

  • Guarantee Canadians certain rights and freedoms subjective by reasonable limits

  • It demands everyone be treated equally and fairly

  • Section 7: life liberty and security of person

    • 3 things to consider if a person’s rights have been violated

      • Medically resources are available at the time they were needed

      • Demands made on those resources

      • Urgency of needs

  • Section 15: Equality

    • Every individual is equal before and under the law and has the right to equal protection

    • Equal benefit of the law without discrimination

      • Based on race, national or ethnic origin, color, religion, sex, age

    • Mental or physical disability

  • Private health care becoming ever more common with the rising wait times

• The Law, Constitution, and End-of-Life Issues

  • Must be sixteen to outline decisions based on their health

  • Instructional directives: can be either specific or general, they outline a person’s requests in presumed circumstances

  • Proxy Directives: general instructions are given, however, the decision maker has the latitude to make decisions on a situational basis

• Medically Assisted Suicide

  • Types of MAID

    • By a healthcare provider where they inject a fatal dosage of medication

    • Or maybe prescribed for the patient to take at home

  • Eligibility for MAID:

    • Over 18

    • Mentally competent

    • Have a valid healthcare card

    • Have a serious illness, disease, disability, or irreversible condition

      • No hope of getting better

      • Unbearable pain

      • Death is reasonable and foreseeable

  • A consent form must be filled out

  • Patient must be fully aware of the process

The Legality of Private Services in Canada

• Health insurance cannot be bought for medically necessary procedures

• Some private companies only work with non-essential services being fully legal since it doesn’t interfere with the Canadian Health Act

  • They are mainly testing clinics

Informed Consent to Treatment

• Informed consent must be provided before any course of action

  • Informed consent: understanding, consenting to, the treatment and its foreseeable risks

• Consent must be informed and voluntary

  • Informed: understand the procedure or treatment

  • Voluntary: must not feel compelled or pressured

  • Has the right to withdraw consent at any time

• Consent for deceased Organ Donation

  • Must be 16 years old

  • Has to sign a donor card

  • Cannot be sold

Types of Consent

• Express Consent: can be written or oral: it indicates a clear choice on the part of the patient

• Written Consent: signed by the patient, dated, and witnessed

  • Provides a healthcare provider with evidence of consent

• Oral Consent: spoken over the phone or in person

  • Equally as binding as written consent

• Implied Consent: because the individual seeks the care of a physician or other healthcare provider

• A competent person receiving the intervention that most often gives consent for the treatment

  • Children are allowed to consent as long as they fit the previous statements

The Health Record

• One’s health record contains: numerous and varied reports including an admission sheet, patient history, medication records, diagnostic reports, medical or surgical records, flow sheets, and interdisciplinary notes

• Clinics typically maintain a cumulative profile

  • Cumulative profile: diagnostic report, consultation reports, and history sheets

• When health records are stored the patient must always know who has their records

• Personal Information Protection and Electronic Documents Act: protects personal information preserved for the private sector

  • Defines personal information: as information about an identifiable individual

    • Name, address, telephone number, gender,

    • Identification numbers, income, or blood type;

    • Credit records, loan records, the existence of a dispute between a consumer and a merchant, and intention to require goods of service

• Confidentially: all healthcare providers must legally and ethically keep all health information confidential

  • Moral and legal obligation to keep a patient’s health information private

• Security

  • Health records are to secure and safe

    • Protected from fire damage as well as other economic disasters

  • Electronic records are to be encrypted software and password protection

• Electronic Health Information requirements

  • Electronic Medical Records: housed in one facility and only affect care at the one facility

  • Electronic Health Records: provide the “bigger picture”. Comprised several sources

Health Care Professions and the Law

• Are all supposed to have their ability insurance

• A union: is an organization that represents and advocated for its members usually regarding employee-employer issues

  • They represent groups of workers

• Are not legally obliged to represent members in anything other than labor regulations

• Essential services do not have the right to strike and must submit any disputes to arbitrations

• When a human error occurs the patients have the right to know all relevant facts

  • An apology is not an admission of fault

• Dear John Letter: written document stating the termination of care

• Use of restraints

  • Typically used for impaired or psychiatric conditions

  • Restraints: can be mechanical, environmental, physical, or chemical

• A patient can leave the hospital at any time

  • They are typically asked to sign a release form from the hospital

• Good Samaritan Law: protect anyone who offers help to a distressed person if something goes wrong

• Whistle Blowing: someone who reports misconduct to organizations willing to take corrective action