Class 3 Flashcards
(54 cards)
Canadian legal system operates on three levels of government:
federal, provincial, municipal
The Constitution Act of 1982 (Schedule B to the Canada Act 1982), under the separation of powers, entrusts provinces or federal governments with competence over health care matters?
provinces with competence over health care matters (certain federal laws still deal with universal principles, such as accessibility and universality of care, etc)
The scope and standards of practice for medical professionals and rights of users of health services are determined by
provincial laws and regulations.;
Ethical standards and best professional practices are often imposed by
the provincial professional orders, such as the OIIQ;
Doctrine
scholarly materials written by legal experts
Jurisprudence
power of precedent, judges follow certain thought patterns/principles, creates certainty and consistency, ensures cases are pure and just
5 basic rights patients have (AHSSS covers the rights and obligations of users and providers of health services and social services in Quebe)
The aforementioned AHSSS covers the rights and obligations of users and providers of health services and social services in Quebec.
More specifically, articles 4 to 16 speak of broad user rights, such as the right to
choose a medical professional (art. 6)
receive services in English (art. 15)
be accompanied by a person of choice (art. 11)
continuity and safety of services (art. 5)
be informed of the existence of options and of risks and benefits of each option (art. 8)
Doctors and nurses have a statutory duty
inform and to obtain free and enlightened consent, produce a correct diagnosis, treat, follow, and to respect professional secrecy.
Doctors and nurses have an
obligation of means (vs. obligation of result) towards patients.
Objective Test (for determining whether or not nurse was negligent/failed in his or her obligations):
Did the nurse act with the ordinary competence and diligence of a nurse placed in the same circumstances (nurse having the same specialty and practicing in the same type of environment)?
Must provide care that adheres to the current, generally accepted standards and practices in similar situations.
Article 1463 CCQ:
who is the hospital responsible for?
who is responsible for the nurse?
The principle is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his recourses against them.
Outside of the hospital or health center setting, the doctor is often responsible for the actions of a nurse.
Drs are not employees of the hospital, they are considered people who work there (hospital is not responsible for them)
In both cases, the hospital and the doctor may still sue the nurse – the nurse is still individually responsible for his or her wrongdoing.
Patients usually sue hospitals in a medical malpractice lawsuit and not an individual nurse (although there are exceptions).
Nurses are required to know and apply
specific recognized standards of practice in their field of specialty
Behavior that does not meet established standards of care can be considered a
breach of obligations, even if the nurse is convinced that she is doing the right thing, since intentionality is not considered a parameter for establishing fault
Committing a professional fault is distinguished from a
simple error of judgment through deviation from the standards of practice, and its assessment is based on what a “Reasonable professional” would have done in such circumstances.
Professional liability is governed by the principles of ordinary civil liability. Generally, doctors have an
obligation of means, and their conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances. Medical professionals should not be held liable for mere errors of judgment* which are distinguishable from professional fault.”
Negligence vs. Malpractice
Negligence (“failure to use such care as a reasonably prudent and careful person would use under similar circumstances”)and
Malpractice* (“improper or unethical conduct or unreasonable lack of skill by a holder of a professional or official position; often applied to physicians, dentists, lawyers, and public officers to denote negligent or unskillful performance of duties when professional skills are obligatory”
In reality, malpractice is synonymous with what? What type of offence is this?
professional negligence, giving rise to civil/professional responsibility, a civil offence.
Misconduct
more administrative, than civil, in nature.
10 CCQ (capacity & informed consent)
Every person is inviolable and is entitled to the integrity of his person. Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.
11 CCQ (capacity 7 informed consent)
No one may be made to undergo care of any nature, whether for examination, specimen taking, removal of tissue, treatment or any other act, except with his consent. Except as otherwise provided by law, the consent is subject to no other formal requirement and may be withdrawn at any time*, even verbally….
8 LSSS (capacity & informed consent)
Before giving his consent to care concerning him, every user of health services and social services is entitled to be informed of his state of health and welfare and to be acquainted with the various options* open to him and the risks and consequences generally associated with each option.
The user is also entitled to be informed, as soon as possible, of any accident …. (e.g. wrongly administered medication)
9 LSSS (capacity & informed consent)
No person may be made to undergo care of any nature, whether for examination, specimen taking, treatment or any other intervention, except with his consent.
Consent to care or the authorization to provide care shall be given or refused by the user or, as the case may be, his representative or the court, in the circumstances and manner provided for in articles 10 and following of the Civil Code.
40 Code of Ethics.
A nurse shall provide her or his client with all the explanations necessary for the client’s comprehension of the care, treatment or other professional services being provided to him or her by the nurse.
41 Code of Ethics.
When a nurse is obliged to obtain a free and enlightened consent, she or he shall (3):
When a nurse is obliged to obtain a free and enlightened consent, she or he shall:
(1) provide the client with all the information required for that purpose;
(2) ensure that the client’s consent remains free and informed for the duration of the period during which she or he provides care, treatment or other professional services;
(3) respect the client’s right to revoke his or her consent at any time.
