Week 13: Health Law

Health Law Readings: pg 84-91 + 1 article Understanding the Canadian Legal System - The law in Canada is roughly divided into two areas: private law and public law - Private law focuses on the relationships between individuals - Eg. between a client and a health care provider - Public law refers to the relationships between government and its citizens - Categories include tax, criminal, and constitutional law - Private law in Canada is governed by two different legal traditions: the common law and the civil law. In the common law system, judges develop the law by referring to previous court decisions (known as precedents) - Under both systems, the courts are required to apply the laws passed by the Parliament of Canada or provincial legislatures. Legislation takes precedence over any case law on the same subject. The Canadian Court System - The Supreme Court of Canada generally decided cases involving issues of national importance or uncertain areas of law. It has heard many important health care cases, including those relating to abortion, MAID, disabled access to health services, and the limits provincial governments have on private health care services - Lower courts must follow the decisions of the higher courts. In other words, provincial superior court judges must apply the legal principles set out by their provincial court of appeal or the Supreme Court of Canada, and courts of appeal must follow the decisions of the Supreme Court of Canada Understanding Health Law - The provinces have the responsibility for regulating hospitals and health professionals and matters of local concern → and regulating most of the health care system - The federal government has many areas of important responsibility, such as providing health care services for Indigenous people and the regulation of pharmaceuticals - The federal government is tasked with ensuring infection control at Canada’s borders, whereas provincial public health laws address matters such as what diseases must be reported by health professionals to public authorities, mandatory vaccine of school children, and the power to quarantine individuals who are infected with communicable diseases - One important federal law is the Canada Health Act. According to this law, provinces that have a health insurance plan for hospital and physician services that meet certain criteria are eligible for federal funding. These criteria include public administration, accessibility, comprehensiveness, universality, and portability - The constitution also includes the Canadian Charter of Rights and Freedoms. The Charter sets out a list of rights and freedoms that the government cannot infringe upon without justification. Negligence Claims Against Nurses - There are 4 claims a plaintiff must prove before a negligence lawsuit - 1. The defendant must owe the plaintiff a duty of care - 2. The defendant must breach the standard of care established by law - 3. The plaintiff must suffer and injury or a loss - 4. The defendant's conduct must cause the plaintiff’s injury - In the second element, the question for a court is whether a nurse acted reasonably in a particular situation. Because the standard is one of reasonableness and not perfection, not all mistakes or errors in judgment will lead to a successful negligence claim - There are several cases in which the courts have elaborated on the kinds of actions that may give rise to a breach of standard care: - Failing to communicate with other health professionals in a timely fashion - Failing to properly monitor and assess clients - Failing to maintain proper records - Failing to follow hospital policy - Failing to intervene when there is clear and obvious neglect or incompetence on the part of another health professional - In the second element, the requirement for injury is related to the primary purpose of negligence law, which is to compensate an injured plaintiff. Without an injury, there is no loss to compensate - Example: if you gave a client the wrong medication and it did not result in injury then there's not much the court can do - In element 4, the plaintiff’s injury must have been caused by the nurse’s actions. To prove causation, scientific and technical evidence is presented to prove that the injury would not have happened “but for” the actions of the nurse Vicarious Liability - Vicarious liability: in most cases, negligent acts by a nurse will be held by the court to be the responsibility of his/her employer, such as a physician or a hospital - That means the employer is liable for the damages Consent - A client must give consent before any medical intervention, such as a diagnostic test or treatment, takes place. A competent individual also has the right to withdraw consent at any time or refuse treatment - Such as jehovah's witnesses - Consent may be either expressed or implied by the situation - Under public health legislation, treatment of certain very serious infectious diseases may be carried out without consent - Elements of consent: - Voluntary - Competence - Referable to the treatment and provider - informed