Legal System Homer Yang Professor in Anesthesia Director of Professionalism Faculty of Medicine

MCC Objectives Key Objective: Given a situation that may result in the involvement of the legal system, the candidate will be able to identify the appropriate laws which apply to the particular situation and access and engage with the appropriate body.

MCC Objectives Enabling Objectives 1.recognize the various sources of laws in Canada (e.g., federal and provincial statutes, the common law, the Civil Code of Québec, licensing and regulatory bodies) as they apply to the practice of medicine; 2.be familiar with the principles underlying the important court, tribunal and other legal decisions that affect the practice of medicine; 3.identify situations in which consultation or referral are appropriate (e.g., legal advice, child protection services).

Four basic axioms of Ethics Autonomy Beneficence Non-maleficence Justice Confidentiality Truth-telling

Canadian Legal System laws by statute, either federally, provincially, or territorially, including the Civil Code in Québec common law (except in Québec)

Legal Actions Criminal – To secure a conviction and punishment for a crime Civil – To resolve disputes between two parties or more – Common law tradition in all provinces & territories except Québec – Civil-code in Québec

Laws The common-law tradition – not all written down as statutes – Based on rules from precedents, judges make later decisions in similar cases – law cannot be found in any code or body of legislation, but only in past decisions – One advantage is it’s flexibility: adapts to changing circumstances because judges can announce new legal doctrines or change old ones – The judge is more like a referee

Laws The civil-code law tradition – Based on Napoleonic Civil codes – contains a comprehensive statement of rules, framed as broad, general principles to deal with any dispute that may arise – Unlike common-law courts, civil-law system first looks to a civil code, then refers to previous decisions to see if they’re consistent. – The judge is more like an investigator

Laws in Canada Constitution with Charter of Rights (1982) has expanded judicial role in reviewing laws Provincial courts > Provincial Court of Appeals > Supreme Court of Canada Tribunals e.g. CPSO Discipline Committee – Less formal, less expensive, faster, not necessarily lawyers involved although CPSO ones tend to have lawyers – Members make decisions & are expected to have special knowledge about the topic – Consider evidence, & apply legislation / policies / case law related to the case – Established & members appointed by federal / provincial / municipal / institution by-laws

“Governance” of physicians Hospital privileges / University Appointment Credentials / Evaluations / CME Licensure by provincial colleges (CPSO / FMRAC) LMCC CCFP RCPSC

Governance of Healthcare Hospitals are regulated by provinces / territories (hospital act) Physicians are governed by provinces / territories – Medical act; hospital act; college by-laws and regulations; hospital by-laws and regulations – Self-regulated by colleges of physicians & surgeons of provinces / territories – Trainees are accountable to the Faculty of Medicine or equivalent & to the facility on rotations

Negligence Common Law (outside of Québec) – Duty of Care Physician owes a duty of care when a physician has knowledge of a patient – Breach of standard of care Care or skill as applied in similar circumstances by a colleague, a normal prudent practitioner. Not perfection – Harm or injury must be present – Causation of or contribution to harm by the breach Residents & medical students have been sued too Much of medical negligence is tort (harm caused by a tortious act), not breach of contract

Negligence Professional civil liability (Québec) – Fault – a physician has not acted as a prudent physician of similar training and experience – Damages – bodily, moral, or material – Causation – as a result of the physician’s fault

Professional Misconduct (CPSO) Ontario Regulation 856/93 under Medicine Act 1991 Section 1(1) - 1(4). 1(1) has 34 items of misconduct; i.e. 1.Contravening a term, condition or limitation on the member’s certificate of registration. 2.Failing to maintain the standard of practice of the profession. 3.Abusing a patient verbally or physically. 4.Practising the profession while the member’s ability is impaired. 1.the profession while the member knows that he or she has deficient clinical ability, as defined in section 26 of Ontario Regulation 114/94 (General) made under the Act. 2.Practising the profession during the period after the member is notified by the College that he or she has deficient clinical ability, as defined in section 26 of Ontario Regulation 114/94 (General) made under the Act, and before the member is notified by the College that he or she no longer has deficient clinical ability. 5.Having a conflict of interest. 6.Prescribing, dispensing or selling drugs for an improper purpose…..

CPSO Discipline Committee Revoke a physician’s certificate of registration Suspend a physician’s certificate Impose limitations & terms on the certificate Fine no more than $35000 to the Minister of Finance In the case of a sexual abuse, reimburse College for funding for counselling and therapy, & posting security Order payment of hearing costs & expenses

CMPA test question A 50-year-old woman has an elective cholecystectomy. She experiences a complication and is frustrated by the lack of information given to her by the surgeon post-operatively. She questions why the complication occurred and as a result launches a legal action. What principle of law is the claim likely based on? Choose the best answer. 1.Breach of fiduciary duty in the doctor-patient relationship 2.Failure to provide value for the taxes she paid into the healthcare system 3.Negligence or civil liability (fault) related to the performance of the surgery 4.Breach of contract 5.Assault and battery acpm.ca/cmpapd04/docs/ela/goodpracticesguide/pages/patient_safety/Test _Yourself/test_yourself-e.html

Resources council/committees council/committees acpm.ca/cmpapd04/docs/ela/goodpracticesgu ide/pages/patient_safety/Legal_liability/profe ssional_civil_liability_in_quebec-e.html acpm.ca/cmpapd04/docs/ela/goodpracticesgu ide/pages/patient_safety/Legal_liability/profe ssional_civil_liability_in_quebec-e.html