chapter IV Flashcards
what are the factors that negate consent?
mistake
fraud
duress
public policy
describe mistake, as a factor negating consent
applies when plaintiff (patient) consents to treatment based on a mistaken belief and the defendant (healthcare practitioner) was responsible for creating that mistaken belief.
if a third party was responsible for the mistaken belief, the patient’s consent is not negated
describe fraud, as a factor negating consent
fraud will negate consent if the defendant was responsible for the fraud or aware of the fraud.
fraud only negates consent if it relates to the “nature of the act,” and not a “collateral matter”
fraud includes:
- knowingly making a false statement
- making a statement in disregard for its truth
- creating a misleading impression by omitting relevant information
describe duress, as a factor negating consent
defined narrowly: threat of immediate physical harm
reluctant consent is not duress
- condition of employment or enrolment in school
- condition of probation or parole
- Independent Medical Examination
describe public policy, as a factor negating consent
consent negated for sense of justice or fairness
some acts cannot be consent to as a matter of public policy (e.g. cannibalism, sex causing serious injury or death)
what resulted from the case: R. v. Mabior (HIV)
the court stated that fraud as to the possible harmful consequences of an act will negate consent, but only if the fraud physically harmed the complainant or exposed him or her to significant risk of serious bodily harm
describe the case: Noberg v. Wynrib
a case of exploiting a position of trust
woman was addicted to narcotics and her doctor offered to prescribe her more in exchange for sex
ruling: court said the doctor breached his fiduciary duty and that the woman wouldn’t have consented otherwise
no battery, but it was considered negligence
according to the criminal code, what actions can be done without consent?
blood samples from unconscious person suspected of impaired driving causing bodily harm or death, in some circumstances
DNA samples from individuals reasonably believed to have committed sexual, violent, terrorist, or other designated offences
can those on probation/parole be treated without consent
conditions of probation and parole do not provide authority to treat without consent (offender can choose to face legal consequences instead)
what is the Ontario Health Protection and Promotion Act (HPPA)?
inspect premises, investigate potential health hazards; make seizures
order self-isolation, exam, refraining from conduct that would expose others to infection (for those who may have communicable disease)
order immediate medical treatment of those with a virulent disease
court orders for non-compliance
what is the Immunization of School Pupils Act?
does not provide for compulsory immunization. parents may seek exemption on medical, religious or conscientious grounds.
parents seeking exemption must complete “immunization education session”
MOH may require school to suspend/exclude:
- a student who is neither immunized nor exempted
- a student who is exempted if there is outbreak
what is the Federal Emergencies Act?
authorizes cabinet, after consulting with provinces, to declare a “public welfare emergency” if there is an urgent, critical and temporary situation that seriously endangers the public
gives cabinet extensive powers to, among other things, restrict travel, use and dispose of property, distribute essential goods/services (+ related sanctions)
may be challenged under the Charter or administrative law principles
what is the Ontario Emergency Management and Civil Protection Act?
broad definition of emergency
gives cabinet powers to make orders; regulating movement, closing businesses and facilities, procuring goods and services, and other measures
what’s a common law right regarding end of life decision making?
refusing or withdrawing from life-prolonging treatment
&
demanding that others withdraw the life-prolonging treatment
– continuing or initating is not within common law rights
describe the case: Malette v Shulman (end of life)
physician was held liable for $20,000 in battery for giving several units of blood to a critically injured, unconscious woman who otherwise would have likely died.
the physician was aware that her purse contained a card indicating that, as a Jehovah’s Witness, she did not want to be given blood
