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

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