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

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