Legal Structure Flashcards
1
Q
What is an independent contractor?
A
Someone contracted to perform a particular task who is not subject to the supervision of the person who contracted them.
2
Q
What is a custom in legal terms?
A
A longstanding and unvarying habit or practice which acquires the force of law.
3
Q
What is a legal action to enforce a right called?
A
Litigation.
4
Q
What is a preliminary inquiry?
A
A hearing held before a magistrate to see if there is enough evidence to go to trial.
5
Q
What is examination for discovery?
A
A pre-trial process intended to permit parties in an action access to the other’s case material to aid settlement or shorten the trial process.
6
Q
What does prima facie mean?
A
At first sight; the first impression that a matter appears to be self-evident from the facts.
7
Q
What are Conditions of Disclosure?
A
Exceptions that allow disclosure of record information to persons actively involved in the treatment of the patient.
8
Q
What is a subpoena ad testificandum?
A
Process directed to a person requiring them to attend and testify at the hearing or trial of an action.
9
Q
What is a subpoena duces tecum?
A
Process directed to a person requiring them to bring documents or other things under their control.
10
Q
What is a summons?
A
A legal document notifying the defendant to appear to address the complaint set out in the summons.
11
Q
What is a search warrant?
A
An order of the court empowering a police officer to search a specified place.
12
Q
What is a writ?
A
A legal document under seal issued from the court in the name of the Crown, authorizing the performance of a particular act.
13
Q
What is a deposition?
A
Witness verbal testimony given under oath and recorded for use in court at a later date.
14
Q
What is an interrogatory?
A
A formal set of written questions required to be answered by an adversary to clarify matters of evidence.
15
Q
What does in camera refer to?
A
A hearing or trial held in private, excluding the public.
16
Q
What is substantive criminal law?
A
A body of law that prohibits certain actions or conduct and imposes sanctions for unlawful behavior.
17
Q
What is the role of the Criminal Code of Canada?
A
It directs the application of criminal law in Canada and sets out rules to ensure a fair and just process.
18
Q
What are regulatory offences?
A
Offences under provincial statutes and municipal bylaws that are not criminal offences in the true sense.
19
Q
What is a summary conviction?
A
Less serious offences tried before a magistrate or justice of the peace with a maximum penalty of 6 months’ prison or fine.
20
Q
What is an indictment?
A
More serious offences that vary by province and are determined by the criminal code.
21
Q
What is evidence?
A
Testimony, whether oral, documentary, or real, which may be legally received to prove or dispute some fact in dispute.
22
Q
What types of evidence exist?
A
- Physical
- Oral
- Circumstantial (not direct)
23
Q
What are the rules of evidence?
A
They determine the specifics for handling the proof of a case before a judge or jury.
24
Q
What must evidence be to be accepted by the court?
A
Relevant and admissible.
25
What is hearsay?
A statement of a fact made by a person who did not personally witness the fact but was told about it by someone else.
26
What are the four basic principles for health records to be admissible as evidence?
* Documented in the normal course of business
* Kept in the regular course of business
* Made at or near the time of the matter recorded
* Made by the person with knowledge of the acts, events, conditions, opinions, or diagnoses appearing in it.
27
What makes Electronic Health Records admissible?
The system that produced them must be shown to be accurate and trustworthy.
28
What are the two types of general law governing the operation of a hospital?
* Federal law (corporate law, contract law)
* Provincial law (health-related legislation, privacy, human resources)
29
What is a contract?
An agreement creating and defining the obligations between two or more parties.
30
What is the basis of contract law in Canada?
Based on English common law of contract.
31
What is the Civil Code in relation to contract law?
In Québec, contract law falls under the Civil Code.
32
What is the basis of contract law in Canada?
Based on English common law of contract
## Footnote
In Québec, contract law falls under the Civil Code.
33
What distinguishes contract law in Québec from other provinces?
It falls under the Civil Code
## Footnote
Other provinces have adopted legislation codifying rules of certain contracts.
34
What is a contract?
A voluntary agreement between two or more parties that creates a legal relationship and legally enforceable obligations
## Footnote
It is a legally binding promise.
35
What can the offended party do if one party does not fulfill its promise?
Ask the courts to force compliance or demand compensation in the form of damages.
36
What are the key elements required for a contract?
* Mutual consent
* Contractual capacity
* A purpose
* Valuable consideration or lawful cause
* Compliance with formalities
## Footnote
The last element is not required in all cases.
37
What is meant by 'contractual capacity'?
The mental ability to keep a promise made.
38
What is 'consensus ad idem'?
A meeting of the minds.
39
What is the difference between an offer and an invitation to treat?
An offer indicates preparedness to form a binding legal agreement, while an invitation to treat invites others to make an offer.
40
List the most common types of contracts.
* Contract of sale
* Lease and hire of services
* Lease and hire of things
* Mandate
## Footnote
A mandate involves giving another power to represent you.
41
What are the three aspects that must be contained in the acceptance of an offer?
* Clearly communicated
* Occur in the specified manner
* Unconditional, without changes
42
What are the circumstances under which acceptance cannot occur?
* Misrepresentation
* Mistake
* Duress
* Undue influence
43
What is the doctrine of privity?
Only the parties or their power of attorney to a contract can enforce a term or condition of a contract.
44
What is the Statute of Frauds?
An early example of statutory contract law that identified circumstances requiring written contracts.
45
What contracts require a written contract according to the Statute of Frauds?
* Contracts for sale of land
* Contracts with obligations beyond one year
* Contracts promising to pay the debt of another
* Contracts for gifts in consideration of marriage
* Promise of an executor to pay the debts of the deceased
46
What distinguishes a void contract from a voidable contract?
* A void contract is not enforceable by law.
* A voidable contract is valid but one party may reject it, making it void.
47
What is a unilateral contract?
A contract where only one party promises something.
48
What is a bilateral contract?
A contract where each party promises something to the other party/parties.
49
What is the difference between verbal and written contracts?
A verbal contract uses spoken or written words, while a written contract is a documented agreement.
50
What are implied contracts?
Contracts that are not explicitly stated but are understood to exist based on the actions or circumstances.
51
What is an example of an implied contract in healthcare?
Emergency treatment for unconscious patients unable to sign consent.
52
What happens when a party is in breach of contract?
The offended party can ask the court to force compliance or seek damages.
53
What are the types of breach of contract?
* Minor, partial, or immaterial breach
* Material breach
* Fundamental breach
* Anticipatory breach
54
What is a fundamental breach?
A breach so basic that it allows the offended party to end performance of the contract and sue for damages.
55
What is anticipatory breach?
It is clear that performance will not be met when due, allowing the non-breaching party to consider the breach immediate and to end the contract and sue for damages.
56
What does termination of contract involve?
Contracts may include terms of cancellation as a termination clause, affecting both parties.
57
What is required for a party to terminate a contract?
A period of notification is stipulated, with failure to give adequate notice leading to financial penalties.
58
What is defamation?
A tort that occurs when a false and derogatory statement is made about a plaintiff without lawful justification.
59
What must a defamatory statement do?
Affect the person's reputation and lower their character in the eyes of reasonable people.
60
What is required for a plaintiff to claim defamation?
The plaintiff must have a reputation to be defamed.
61
What is publication in the context of defamation?
The statement must be published, such as placing it in a health record.
62
What are the two types of defamation?
* Libel: Written
* Slander: Spoken
63
What is the legal context of health information and defamation?
Very few cases of defamation involving health information exist in Canadian case law.
64
What defense may apply to defamation claims?
Defense of qualified privilege may apply if statements are made in the performance of duty.
65
What can lead to loss of qualified privilege?
If the entry was made maliciously.
66
How can organizations minimize defamation claims?
By training staff to adhere to basic style requirements for recording information.
67
What is a key factor in avoiding defamatory information in patient records?
Relevancy.
68
What should be used to assess acceptable entries in records?
Practice case studies and role-playing.
69
Fill in the blank: Defamation is a _______.
tort
70
True or False: Anticipatory breach allows the offended party to sue for damages.
True
71
What is an indicator of risk-prone records?
Conjecture, expansive speculation, and editorializing.
72
What happens if a party terminates a contract?
It usually greatly affects the other party.
73
What is required for a statement to be considered defamatory?
It must be a false and derogatory statement about the plaintiff.
74
What type of health care system does Canada have?
Universal, single-tier system
## Footnote
Canada’s health care system provides all medically necessary services without co-payments or deductibles.
75
What is the main focus of the Canada Health Act (CHA)?
Hospital and physician services
## Footnote
The CHA does not cover all health services, leading to under-inclusiveness.
76
What are the two main sources of legal obligations in the Canadian legal system?
* Legislation
* Case law
## Footnote
Legislation is drafted by provincial or federal governments, while case law is developed through previous court decisions.
77
What does 'ultra vires' mean?
Beyond the powers
## Footnote
A law can be struck down if it is beyond the scope of the government that enacted it.
78
What powers do provinces have related to health according to Section 92 of the Constitution?
* Regulate hospitals
* Manage long-term care homes
* Authority over property and civil rights
## Footnote
This section grants broad jurisdiction to provinces regarding health matters.
79
What does the Peace, Order and Good Government (POGG) clause allow?
Laws for matters not assigned exclusively to provinces
## Footnote
It can be exercised during emergencies or national concerns.
80
What must a plaintiff establish in a negligence claim?
* Duty of care
* Breach of duty
* Sustained loss
* Causation
## Footnote
The plaintiff must prove these elements on a balance of probabilities.
81
What is the standard of care in negligence law?
Legal obligation to act reasonably
## Footnote
The standard is higher for specialists than for general practitioners.
82
What types of damages can courts award in negligence claims?
* Pain and suffering
* Special damages
* Compensation for lost income
* Future medical care costs
## Footnote
These damages must be legally recognized injuries.
83
What is the 'but for' test in causation?
Determines if the injury would have occurred but for the unreasonable medical care
## Footnote
This test is used to establish a direct link between breach and injury.
84
What are common defenses in a negligence claim?
* Treatment met standard of care
* Plaintiff's unreasonable conduct
* Claim was filed after limitation period
## Footnote
These defenses challenge the plaintiff's arguments.
85
What is a health record required to include?
Concise, clear, and accurate information
## Footnote
All entries must be dated and signed or initialed.
86
What is the role of professional practice standards?
Regulations and standards differ by province
## Footnote
Professional colleges have their own standards and guidelines.
87
What is negligence?
Failure to take proper care
## Footnote
Negligence is a tort, which is a wrongful act or infringement.
88
What does the term 'duty of care' refer to?
Legal obligations arising from a close relationship
## Footnote
This often occurs in a professional-patient context.
89
True or False: The federal government is responsible for providing health services to individuals living on reserves.
True
## Footnote
This is part of the federal government's responsibilities.
90
What is negligence?
Negligence is a failure to take the proper care in doing something.
## Footnote
Negligence is classified as a tort.
91
Define tort.
A tort is a wrongful act or infringement of someone else’s rights that can lead to civil legal liability.
92
What does tort law encompass?
Tort law encompasses acts or omissions that result in harm or damage to another person or their property.
93
How is negligence defined in health care?
Negligence in health care occurs when the care provided does not meet the established or expected level of care.
94
What is another term for negligence in the health care sector?
Medical malpractice.
95
List the five criteria for negligence in health care.
* There must be a duty recognized by law to conduct oneself according to a certain standard
* There must be a breach of duty
* The person to whom the duty is owed must be injured
* There must be a reasonably proximate connection between the failure to live up to the proper standards and the injury
* The injured party must not have done anything which would make their injuries worse.
96
What is the basic standard of care in negligence law?
The standard of care is that of a 'reasonable person of ordinary prudence'.
97
How is the standard of care elevated for medical professions?
It is elevated to a standard of proficiency and skill set.
98
What are some issues related to health information management?
* Retention
* Storage
* Disposal
99
What is the maximum retention period for health information?
The maximum retention period should be established for each purpose for which health information is maintained.
100
What is the legislative retention period for the Canada Revenue Agency?
Eight (8) years.
101
What should medical donor records be kept?
Indefinitely.
102
What are the considerations for storage of health records?
Microfilming and digital scanning can significantly reduce costs.
103
What should be done with health information after the retention period has passed?
The information should be destroyed.
104
What are the positives of digital information?
* Quick access
* Retention
* Portability
* Transformation for analysis
* Better quality of care?
105
What are the negatives of digital information?
* Cost
* Breach
* Destruction.
106
What responsibilities do facilities and providers have regarding health information?
They are responsible for protecting the privacy and security of health information until it is effectively destroyed.
107
What is the ultimate limitation period in Ontario under the Limitation Act?
15 years.
108
What is the discovery rule in Canada regarding limitation periods?
The limitation period does not begin until the wrongful act is discovered or could have been reasonably discovered.
109
What is the role of the Canadian Medical Protective Association (CMPA)?
The CMPA provides advice and assistance when medical-legal difficulties arise and resources to help manage risk.
110
True or False: Most physicians in Canada carry malpractice insurance.
False.
111
What should a formal process for information destruction include?
A log to record what, how, and when information was destroyed.
112
What are the Canadian laws that regulate health information?
Privacy Act, Access to Information Act, PIPEDA, PHIPA, FIPPA, QCIPA
## Footnote
These laws operate at both federal and provincial levels.
113
What is the definition of privacy according to the Supreme Court of Canada?
The right of the individual to determine when, how, and to what extent he will release personal information about himself.
114
What are some basic features of personal health information legislation?
* Require consent for collection, use, or disclosure of personal information
* Address safeguards and complaints process
* Allow access to personal information
115
What remedies do individuals have when their privacy is not adequately protected?
Individuals may lodge complaints with privacy commissioners and seek corrections or remedies related to their information.
116
What are some health privacy challenges in the context of patient safety?
* Balancing privacy with health and safety of third parties
* Health system purposes
* Health research and new health technologies
117
What is the Personal Health Information Protection Act (PHIPA)?
A provincial law in Ontario that governs the collection, use, and disclosure of personal health information.
118
Fill in the blank: Personal health information generally applies to information held by _______.
[custodians or trustees]
119
What is presumed regarding the collection, use, or disclosure of personal health information?
It is presumed to be done with the consent of the individual.
120
What are some exceptions to consent for sharing personal health information?
* Information shared within the circle of care
* Notifying family and close relations
* Protecting a third party from harm
* Administrative purposes
121
What rights do individuals have regarding access to their personal health information?
Individuals have the right to access and request corrections to their personal health information.
122
What must custodians do to safeguard personal health information?
* Protect against theft or loss
* Prevent unauthorized access
* Adopt reasonable safeguards for confidentiality, security, accuracy, and integrity
123
What is the role of information and privacy commissioners?
To oversee compliance with privacy legislation and address complaints related to privacy breaches.
124
True or False: Information and privacy commissioners have the power to compensate individuals for privacy breaches.
False
125
What are some contemporary issues affecting the regulation of health information?
* Patient safety movement
* Quality improvement information
* Privacy and health research
* Privacy and health technology
126
What is a computerized health information system according to CHIMA?
An electronic patient record residing in a system designed to support users with accessibility to complete and accurate data.
127
Why is digitization of health information necessary?
* Improves care
* Quick retrieval of information
* Less effort in information sharing
* Pressure to use digital communication
128
What guidelines should be followed when using digital information?
* Time, date, and author must be recorded
* Policies should outline correction procedures
* Special codes for memory destruction should be restricted
129
What is the need for standards in information linkage?
Connectivity and interoperability depend on consistency of health information and use of data standards.
130
What is a Privacy Impact Assessment?
A tool used to identify potential privacy risks of new or redesigned technology, programs, or services.
131
What is a Vendor Licensing Agreement?
Licenses extended to health information vendors that develop solutions to support data submission.
132
What is data suppression?
The process of withholding or removing selected information to protect identities and personal information.
133
What are the three legal issues for digitized health information?
* Confidentiality, privacy, and security
* Substandard practices for digitized information
* Use and disclosure in court
134
What is a challenge associated with application service providers holding health information?
Information may be held in remote locations and across various jurisdictions.
135
What is a concern regarding the sharing of genetic material?
The relevance of consumer privacy is questioned as genetic material can be shared among multiple people.
136
What issue arises when companies do not educate customers on information sharing practices?
Customers may be unaware of how long a company holds their information and the extent of sharing with others.
137
What do media attention and consumer advocacy groups suggest about companies?
Companies do not go far enough to educate their customers on information sharing practices and retention periods.
138
What is the legal issue related to substandard practices in health information?
Negligence with the digitization of health information and information linkage.
139
What are common errors associated with digitized health information?
* Failure to read
* Wrong linkage of information
* Misreading
* Typographical errors
140
What must be established for a healthcare facility to be found negligent?
A standard exists and the facility has failed to live up to that standard.
141
What guidelines should be followed to avoid substandard practices?
Guidelines should not be too high or too low.
142
What can lead to litigation in healthcare?
* Failure to provide timely information
* Non-read orders
* Misreading orders
* Tardy entries
* Typos for vital signs/drug dosage
* Entries into the wrong record
* Faulty transmission or linkage error
143
What can negligence in healthcare stem from?
* Improper storage
* Limited systems
* Reliance on computers
144
What do provincial statutes outline regarding healthcare data?
How to securely link, access, and use computer systems for health care data.
145
What should be completed prior to obtaining a new system in healthcare?
Confidentiality/Privacy Standards and Privacy Impact Assessments.
146
What can compromise confidentiality and privacy in computer systems?
* More access
* Curious staff
* Hacking
147
What safeguards can be developed to enhance security?
* Unique identifiers
* Biometrics
* Access codes
148
Is legislation typically technology neutral?
Yes, legislation is typically technology neutral.
149
What must be consulted when creating policies and procedures for healthcare data?
IT and Legal.
150
What are the prerequisites for the admissibility of electronic records into evidence?
* Authentication
* Best evidence rule
151
What must electronic recordings be made in?
The usual and ordinary course of business.
152
What does proper use and disclosure of digital information require?
Appropriate controls for access and obtaining data.
153
What should health agencies consider when developing policies?
A list of questions outlined on Pg 135.
154
What is mandatory for staff in relation to confidentiality?
Education on the importance of confidentiality and consequences of breaches.
155
What percentage of cybersecurity insurance claims are due to human error?
90%
156
What is the foundational element of artificial intelligence?
Large datasets, most held by public agencies.
157
What should be understood when using technology in healthcare?
The ethical decision-making framework and legal requirements.
158
What is a concern regarding transmitting health information?
Transmitting via fax or email.
159
What constitutes a breach of confidentiality in fax transmissions?
Sending a transmission to the wrong party.
160
What should be the location of fax machines to ensure security?
Not located in high traffic areas or unsecured locations.
161
What should be established regarding fax and email use?
A clear policy.
162
What is required for the transmission of personal health information by fax?
Authorization for the transmission.
163
What becomes part of the health record when placed in a patient's chart?
Emails and faxes.
164
What should facilities develop for the destruction of unneeded fax copies?
An approach focusing on document determination and authorized destruction.
165
What should be done to ensure the security of electronic communications?
* Select proper equipment
* Educate staff
* Develop transmission policies
166
What should be included in a covering letter with faxed information?
* Name, address, and phone number of the sender
* Name, address, and fax number of the receiving party
* Notice of confidentiality
167
What are some risk management techniques for fax transmissions?
* Unauthorized transmission
* Illegible transmission
* Failure to follow up on requisitions
