The Law and Health Care

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

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  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

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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

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