chapter I Flashcards
what factors are expanding the role of law?
- the shift from paternalistic to rights-based notions of health care: legal rights > best interests
- recognition that all capable patients can make their own decisions despite the wishes of their closest relative
- the cycle of apathy, crisis, and panic – e.g. child abuse in residential schools
- increase in complex, piecemeal legislation. no attempt to rationalize, consolidate or streamline – legislation overlaps and duplicates
- expansion of the health rubric
- politicizing of health care. e.g. wait times, hospital closings, lobbying
- increasing fiscal (government money) restraint. healthcare is the largest portion of the provincial budget
what power does the federal government have regarding health legislation?
criminal law and procedure – but must be framed as a prohibition coupled with a sanction – limited ability to regulate
laws for peace, order, and good government (POGG)
matters needing national approach e.g. airline safety
temporary measures in national emergencies e.g. pandemics
etc.
how does the federal government induce the provincial government to enact specific programs and legislation?
the federal government uses their taxing and financial power
what power does the provincial government have regarding health legislation?
authority over almost all health-related matters according to their power over hospitals – except marine hospitals
property and civil rights (contracts, property, torts, employment, commercial)
matters of a private or local nature
trades, professions, and industries within their boundaries
describe the Canada Health Act (CHA)
does not give people a right to publicly-funded health care
establishes criteria the provincial health insurance plans must meet to obtain a federal cash contribution
provides the legislative basis for the Federal-Provincial Health Accords – which sets out the funding formula
is not comprehensive, covering only “insured health services” (i.e. medically-necessary hospital care, dental surgery in hospital and physician services) and only “insured persons” (residents of the province with some exceptions)
prohibits the provincial health insurance plans from paying for insured services that are subject to “extra-billing” or “user fees”
which act provides the legislative basis for the Federal-Provincial Health Accords?
the Canada Health Act (CHA)
- Federal-Provincial Health Accords sets out the funding formula
what are the 5 pillars of medicare?
comprehensiveness
universality
public administration
portability
accessibility
what gives residents the legal entitlement to publicly-funded health services?
the provincial/territorial health insurance plans
the provincial/territorial insurance health plan may choose to publicly-fund various optional treatments
what are the common criminal code offences?
assault
sexual exploitation
providing necessaries of life
counselling, aiding, or abetting suicide
what are the types of assault?
assault
assault with a weapon/assault causing bodily harm
aggravated weapon
describe simple assault
attempting or threatening to apply force to another if one has or apparently has the present ability to carry out the threat
consent obtained by use/threat of force, fraud, or exercise of authority provides no defence
describe assault with a weapon or causing bodily harm
assault while carrying, threatening to use, or using a weapon (or an imitation weapon)
assault causing bodily harm requires a “hurt or injury” that is more than transient or trifling
describe aggravated assault
wounding, maiming, disfiguring, or endangering life
name the conditions for when consent is not considered a defence, making the case a case of sexual assault
consent of a person under 16 provides no defence to sexual assault unless the complainant is:
12/13 and the accused is less than 2 years older
or, 14/15 and the accused is less than 5 years older
what is sexual exploitation an a criminal code offense?
any sexual contact with a 16 or 17 year old by a person in a relationship of trust or authority
it is also an offence to engage in such conduct
what is a case of sexual exploitation mentioned in class?
R. c. Colas
a secondary school teacher was convicted of sexual exploitation and sentenced to 20 months’ imprisonment for having a sexual relationship with one of his students
describe providing necessaries of life as a criminal code offence
when parents/guardians fail to provide the necessaries of life without a lawful excuse to their children who are under 16 and are destitute or in necessitous circumstances or if the failure ^^ endangers their life, or likely to permanently endangers their health
what is a case of providing necessaries of life mentioned in class?
R. v. J.(S.)
couple was charged with
1. aggravated assault
2. failing to provide the necessaries of life to their child thereby endangering his life
3. failing to provide the necessaries of life to their child who was in necessitous circumstances
the charge of aggravated assault against the couple had to be dropped nor was there enough evidence to prove that the couple’s failure to seek medical attention endangered the child’s life.
but, all the doctors agreed that when the child entered hospital, he was malnourished and anemic, and had vitamin C levels consistent with scurvy, three open wounds, a skin condition so severe as to require transfusions, and scarring all over his body.
couple was convicted of failing to provide the necessaries of life to their child who was in necessitous circumstances because they failed to get their son needed medical treatment in the weeks between his arrival in Canada and his hospital admission
describe counselling, aiding, or abetting suicide as a criminal code offence
must deliberately encourage, assist or induce, the person to commit suicide. merely advising or providing info is not enough.
a person’s consent to having death inflicted on themselves provides no defence
what effect did the case: Carter v. Canada have on the MAID law?
created a narrow exception to criminal liability regarding physicians providing MAID to competent adults with grievous and irremediable medical conditions causing enduring and intolerable suffering
did not create a legal right to MAID
what are the 3 parts to civil action?
pleadings
examination for discovery
trial
describe the pleading stage of civil action
statement of claims sets out the plaintiff’s case against the defendant
statement of defence sets out the defendant’s response to the claim.
if the defendant fails to respond, the plaintiff will get a default judgement
describe the examination of discovery stage of civil action
pre-trial legal proceeding: parties examine each other’s witnesses and documents
vast majority of cases are abandoned or dismissed on preliminary motions or settled prior to trial
describe the trial stage of civil action
parties present evidence and arguments in court
judge/jury considered evidence, issues a decision, and determined what remedy is given
plaintiffs must prove they have suffered a loss or harm that is recognized as being somewhat recoverable
what is a damage award?
the most common remedy from a trial
only gives the plaintiff a legal right to seek recovery and not the actual money awarded
what are the types of common law tort actions?
battery
assault
false imprisonment
describe battery, a common law tort action
intentional bringing about of harmful or socially offensive physical contact with the person of another
any nonconsensual physical contact is viewed as offensive, except for “socially accepted practices”
the plaintiff doesn’t have to be physically harmed by the battery or aware of it at the time. once physical contact is proven, the defendant will be held liable unless they can establish a defence
the mistaken belief that the plaintiff consents provides no defence
what is a case of battery (tort) mentioned in class?
Toews (Guardian ad litem of) v. Weisner
Weisner was a nurse providing vaccinations of HepB at school.
Neither of Toews’ parents signed the consent form and Toews told Weisner her parents did not want her to be vaccinated
but, Weisner believed Toews’ mother provided oral consent, vaccinating Toews. No harm resulted but Weisner was held liable in battery for $1000
describe assault, a common law tort action
**defined more narrowly in tort law than in criminal law
intentional creation in the mind of another of a reasonable fear of imminent physical contact
if the defendant had the apparent intent and ability to bring about a physical contact, it is irrelevant whether they intended or had the ability to do so – issue dependant on whether the plaintiff reasonably believed they were about to be touched.
tort includes a threat of any immediate harmful or socially offensive physical contact
describe false imprisonment, a common law tort action
intentional bringing about of a total restraint of movement of another person
once plaintiff proves that they were restrained, even momentarily, the defendant will be held liable unless they can establish a valid defence
describe individual liability
health professionals are independent decision makers who are accountable for the decisions that they make.
it is no defence to a civil suit or prosecution for a health professional to argue that “I was only following orders or management policy.”
administrators can be held civilly liable in negligence for their own conduct, including screening, hiring, placing, and monitoring subordinate staff.
non-professionals who purport to provide professional services are held to the standards of a professional.
describe vicarious liability
imposed on individuals based on their relationship with the wrongdoer and not personal fault on their part
vicarious liability doesn’t diminish the employee’s personal liability
vicarious liability applies to “master/servant” relationships, but not to independent contractors
compare vicarious liability before and now
traditionally, employers were only held vicariously liable for civil wrongs that employees committed in the “course of employment”
now, employers have been held vicariously liable for civil wrongs that volunteers, trainees, and students commit in carrying out tasks under the employer’s directions
traditionally, employers were not vicarious liable for their employees’ intentional criminal acts, because this was viewed as outside the scope of employment
principles of vicarious liability were expanded following public scandals over the abuse of children in residential schools.
initially, the Supreme Court defined liability in terms of whether employer puts the the employee ins a position of trust, control, or power over the plaintiff that increased the likelihood of sexual/physical abuse
what two sub issues does the current vicarious liability test entails?
- vicarious liability is imposed if the existing cases clearly establish its applicability in the circumstances (e.g. traditional employer/employee)
- party may be held vicariously liable if the party is in a sufficiently close relation with the wrongdoer AND there is a significant connection between the wrongful act and the wrongdoer’s assigned task or authorized conduct
what is a case of vicarious liability mentioned in class?
Roman Catholic Episcopal Corporation of St. John’s (“Archdiocese”) v. John Doe
vicarious liability imposed on the Archdiocese for a priest’s sexual abuse of choir boys, because the relationship between the diocese and the priest was sufficiently close and there was a significant connection between the priest’s assigned tasks and the abuse.
what does the Child, Youth, and Family Services Act (CYFSA) govern?
the legal principles applicable to various services provided to children
the age of consent for those services
the mandatory reporting of children in need of protection
what does the Coroners Act govern?
provincial coroners’ responsibilities
duty of health professionals and institutions to report specified categories of deaths to the coroners
the duty that everyone has to report unexpected and suspicious deaths to the police or a coroner
what does the Health Insurance Act do?
establishes the administration of OHIP
defines the terms “insured services” and “insured persons”
establishes the rules for paying health practitioners and facilities
voids any private insurance contract for insured services provided to insured persons
taken together, OHIP and the health insurance act gives insured persons a legal right to insured services
what does the Health Protection and Promotion Act do?
governs boards of health and their public responsibilities which include:
monitoring communicable diseases
overseeing sanitation and immunization and programs
providing public health education
inspecting restaurants, food processing plants, and other facilities
governs the obligations of health facilities and regulated health professionals to report communicable, reportable, and virulent diseases to the medical officers of health (MOHs)
what does the Limitations Act do? describe the amendments made
created a standard limitation period of 2 years for almost all civil actions
postponing the onset of the limitation period has important implications for record keeping, especially in the case of children
amendments eliminated the limitation period for:
all sexual assault
other sexual misconduct or other assaults involving those under 18
any assaults committed in an intimate relationship
what does the Mental Health Act (MHA) govern?
administration of psychiatric hospitals
the criteria for voluntary, informal, and involuntary admission
community treatment orders
what does the Regulated Health Professions Act do?
establishes the colleges and legislative framework governing Ontario’s 26 self-regulated health professions
along with the Health Professions Procedural Code, they set out the:
registering of applicants
scope of practice
process of investigating complaints and disciplining members
mandatory reporting of sexual abuse of patients
unfitness and incapacity
the colleges typically issue detailed guidelines and policies that its members are expected or required to follow
when does a limitation period begin to run?
the plaintiff knew or ought to have known the facts upon which the wrongful act was based
understood the harms that wrong caused
was physically, mentally, and emotionally able to bring an action
what does the Public Hospitals Act do?
governs administration of public hospitals
provides for provincial funding of hospitals
what does the Social Work and Social Service Work Act do?
sets out a similar framework (to the Regulated Health Professions Act) and set of procedures and rules governing social workers and social service workers
what does the Gift of Life Network Act governs?
inter-vivos (live) and post mortem donations of organs and tissues
post mortem donations of bodies for transplant, education, and scientific purposes
