Week 4 Flashcards
Freedom of Information and Protection of Privacy Act
(FOIPPA)
This Act creates the Office of the Information and Privacy Commissioner of British Columbia and sets
out rules for collecting, using and disclosing personal information by “public bodies,” which include
provincial government ministries, provincial agencies, boards, Crown corporations, municipalities,
school boards, hospitals and professional regulatory bodies such as BCCNM.
A list of public bodies is
included in a schedule to the Act.
Personal information includes anything that uniquely identifies a person, such as their name, address,
age, sex, religion and information about health care, education, financial, criminal or employment
history.
The Act also gives members of the public the right to access records in the custody or control of a
public body. Individuals may access personal information about themselves, including information
about their health care history. They may also request that their personal information be corrected.
There are, however, exceptions to a person’s right to access information under the Act, including, for
example, restrictions on the disclosure of records that would result in an unreasonable invasion of someone else’s personal privacy.
A public body may also refuse to disclose an applicant’s own personal information if doing so could reasonably be expected to result in immediate and grave harm to the applicant’s safety or mental or
physical health. To help make this decision, the head of the public body may disclose the information
on a confidential basis to a health professional, including a registered psychiatric nurse, registered
nurse or nurse practitioner, and ask for an opinion on whether disclosure could reasonably be
expected to result in such harm. (The Freedom of Information and Protection of Privacy Regulation
does not give licensed practical nurses the authority to provide such an opinion.)
The Act also prevents the unauthorized collection, use or disclosure of personal information by
public bodies; establishes a complaint system; and requires public bodies to appoint an information
and privacy officer to ensure compliance with FOIPPA
Privacy Act (BC)
In British Columbia, a person can sue under this Act for breach of privacy. Although “privacy” is not
defined, the courts will consider the circumstances and the relationship between the parties when
considering whether a person’s privacy rights have been violated. Under this legislation, a nurse who
breaches the duty to maintain confidentiality of information about a patient, without the patient’s
consent or other lawful or ethical excuse, may be liable for damages.
Privacy Act (Federal)
The federal Privacy Act is the federal counterpart to the parts of FOIPPA that govern the collection,
use and disclosure of personal information in the public sector (see above). It governs the collection,
use and disclosure of personal information by federal government institutions. This includes, for
example, federal correctional institutions where nurses may be employed.
Health Professions Act
This Act regulates 25 health professions that are governed by 20 regulatory colleges. This includes
BCCNM, which was formed on September 1, 2020 by amalgamating the British Columbia College of
Nursing Professionals (BCCNP) and the College of Midwives of British Columbia (CMBC) into one
college. BCCNM continues to govern the four designated health professions of nursing, psychiatric
nursing, practical nursing, and midwifery.
Each health profession college established under this Act regulates its registrants’ practice and
professional conduct in accordance with the Act, the applicable regulations and the college’s bylaws.
Regulations established for each designated profession also specify reserved titles and set out the
scope of practice for the profession.
This includes three separate regulations for licensed practical nurses (the Nurses (Licensed Practical) Regulation), for registered psychiatric nurses (the Nurses (Registered Psychiatric) Regulation), and for registered nurses and nurse practitioners (the Nurses
(Registered) and Nurse Practitioners Regulation).
Matters addressed in college bylaws include educational and other requirements for registration in the profession; internal governance and administration of the college, including board elections, committee structures and general meetings; continuing competence and quality assurance; and certain aspects of professional conduct review and discipline. Colleges also establish standards of practice and professional ethics governing the conduct of their registrants.
Every health profession college has a duty to serve and protect the public, and to exercise its powers
and carry out its responsibilities in the public interest.
Each health profession college has a registration committee, responsible for granting registration to
registrants.
Part 3 of the Act establishes a complaint procedure and gives authority to each college’s inquiry
committee to investigate and dispose of complaints against its registrants. Following an
investigation, the inquiry committee may also direct the college’s registrar to issue a citation for the
registrant to appear before the college’s discipline committee for a hearing.
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Part 4.2 of the Act establishes the Health Professions Review Board, an independent tribunal with
authority to review whether a college adequately investigates and reasonably disposes of complaints
against its registrants. The Review Board may also review a college’s compliance with timelines
prescribed under the Act for completing investigations, and has authority to review most college
registration decisions.
DUTY TO REPORT
Registrants of every college established under the Act have a duty to report in writing to the
appropriate health profession college if they have good reason to believe that the public might be in
danger because of the continued practice of another health professional: for example, if the other
health professional continues to practise when they are:
* Not competent to do so
* Suffering from a physical or mental ailment, an emotional disturbance or an addiction to
alcohol or drugs that impairs their ability to practise
Registrants also have a duty to report if they have good reason to believe that another health
professional has engaged in sexual misconduct. However, if concerns about sexual misconduct are
based on information from a patient, the registrant must obtain the patient’s consent before making
a report. If the patient does not have the capacity to consent to health care treatment, consent to
make the report must be obtained from the patient’s parent, guardian or substitute decision maker.
Employers, health care facilities and other people associated with a health professional also have a
duty to report under the Act in certain circumstances. A report must also be made when a health
professional is hospitalized for psychiatric care or treatment for drug or alcohol addiction and is
therefore unable to practise.
More information about the duty to report as it applies to nurses can be found in BCCNM’s Duty to
Report practice standard.
Representation Agreement Act
Representation agreements are designed to allow adults to arrange in advance how, when and by
whom decisions about their health care, personal care and routine financial affairs will be made if
they become incapable of making decisions independently. The powers of a representative under the Representation Agreement Act are broader than the powers of an attorney under the Power of
Attorney Act, which are limited to managing an adult’s financial and legal affairs.
This Act creates two types of legal planning documents in which an adult may designate a
representative to manage their financial, legal, personal and/or health care decisions:
* A standard representation agreement permits the representative to make daily living
decisions and most health care decisions for the incapable adult, but not a decision to refuse
health care necessary to preserve life. An adult may make a standard representation
agreement even if they are incapable of making a contract or incapable of managing their
health care, personal care, legal matters or routine financial affairs.
- A non-standard representation agreement expands a representative’s authority to include
decision-making powers about specific health care decisions, such as refusing consent to
life-supporting care and treatment, or giving or refusing consent to health care in specified
circumstances even though the adult refuses to give consent at the time the health care is
provided. To make a non-standard representation agreement, an adult must be capable of
understanding the nature and consequences of the proposed agreement.
A representation agreement may provide for an alternate representative to make decisions when the
first representative is unavailable or unwilling to act. The agreement may also appoint a monitor to
ensure that the representative is acting properly, and, in some circumstances, the Act directs that a
representation agreement must appoint a monitor.
An adult who has made a representation agreement may still continue to give, refuse or revoke
consent to health care on their own behalf if they are capable of doing so under the Health Care
(Consent) and Care Facility (Admission) Act (see above). The Representation Agreement Act
confirms that an adult who is capable may do anything that they have authorized a representative to
do.
This Act also imposes a number of duties on representatives, including the duty to follow the wishes
or instructions expressed by the adult while capable, or, if the adult’s instructions or expressed
wishes are not known, to act on the basis of the adult’s known beliefs and values, or if the adult’s
beliefs and values are not known, to act in the adult’s best interests. When deciding whether it is in
the adult’s best interest to give, refuse or revoke substitute consent, a representative must consider
the same factors as a temporary substitute decision maker under the Health Care (Consent) and
Care Facility (Admission) Act (see above)
LEGISLATION RELEVANT TO NURSES’ PRACTICE (Representation agreement act)
A representative may request information and records about the adult if they relate to the
incapability of the adult or to an area of authority granted to the representative. A representative has
the same right to information and records as does the adult for whom they are acting.
Any person may report to the Public Guardian and Trustee any of the following situations:
* If they believe that fraud, abuse or neglect of the adult is occurring
* If the representation agreement appears to be contrary to the wishes or best interests of the
adult
* If the representative is failing to comply with the representation agreement or their duties
The Act also gives the Public Guardian and Trustee the authority to apply to court for an order
cancelling all or part of a representation agreement.
Healthcare Consent and Care Facility Admission Act
1 In this Act:
“adult” means anyone who has reached 19 years of age;
“advance directive” means a written instruction made by a capable adult that
(a)gives or refuses consent to health care for the adult in the event that the adult is not capable of giving the instruction at the time the health care is required, and
(b)complies with the requirements of Part 2.1;
“care facility” means
(a)a community care facility that
(i)is licensed or designated under the Community Care and Assisted Living Act, and
(ii)provides residential care to adults,
(b)[Not in force.]
(c)a private hospital licensed under Part 2 of the Hospital Act,
(d)an institution designated as a hospital under the Hospital Act for the treatment of persons referred to in paragraph (b) or (c) of the definition of “hospital” in that Act, or
(e)any other facility, or class of facility, designated by regulation as a care facility,
but does not include a service provider under the Community Living Authority Act that has not been designated under paragraph (e);
Application of this Act
2 This Act does not apply to
(a)the admission of a person to a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health Act,
(b)the provision of psychiatric care or treatment to a person detained in or through a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health Act,
(c)the provision of psychiatric care or treatment under the Mental Health Act to a person released on leave or transferred to an approved home under section 37 or 38 of the Mental Health Act, or
(d)the provision of professional services, care or treatment to a person for the purposes of sterilization for non-therapeutic reasons.
Presumption of capability
3 (1)Until the contrary is demonstrated, every adult is presumed to be capable of
(a)giving, refusing or revoking consent to health care, and
(b)giving or refusing consent to admission to, or continued residence in, a care facility.
(2)An adult’s way of communicating with others is not, by itself, grounds for deciding that he or she is incapable of understanding anything referred to in subsection (1).
Part 2 — Consent to Health Care
Consent rights
4 Every adult who is capable of giving or refusing consent to health care has
(a)the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death,
(b)the right to select a particular form of available health care on any grounds, including moral or religious grounds,
(c)the right to revoke consent,
(d)the right to expect that a decision to give, refuse or revoke consent will be respected, and
(e)the right to be involved to the greatest degree possible in all case planning and decision making.
General rule — consent needed
5 (1)A health care provider must not provide any health care to an adult without the adult’s consent except under sections 11 to 15.
(2)A health care provider must not seek a decision about whether to give or refuse substitute consent to health care under section 11, 14 or 15 unless he or she has made every reasonable effort to obtain a decision from the adult.
Elements of consent
6 An adult consents to health care if
(a)the consent relates to the proposed health care,
(b)the consent is given voluntarily,
(c)the consent is not obtained by fraud or misrepresentation,
(d)the adult is capable of making a decision about whether to give or refuse consent to the proposed health care,
(e)the health care provider gives the adult the information a reasonable person would require to understand the proposed health care and to make a decision, including information about
(i)the condition for which the health care is proposed,
(ii)the nature of the proposed health care,
(iii)the risks and benefits of the proposed health care that a reasonable person would expect to be told about, and
(iv)alternative courses of health care, and
(f)the adult has an opportunity to ask questions and receive answers about the proposed health care.
Adult Guardianship Act
Part 3 of this Act provides for support and assistance for adults who are abused or neglected and
who are unable to ask for help themselves because of a physical or mental handicap or other
condition that affects their ability to make decisions.
Abuse means the deliberate mistreatment of an adult that causes physical, mental or emotional
harm, or damage or loss with respect to the adult’s financial affairs. Such mistreatment includes
intimidation, humiliation, physical assault, sexual assault, over medication, withholding needed
medication, censorship of mail, invasion or denial of privacy, and denial of access to visitors.
Neglect means failing to provide necessary care to an adult, resulting in serious physical, mental or
emotional harm, or substantial damage or loss with respect to the adult’s financial affairs within a
short period of time. Neglect includes self-neglect.
Under this Act, it is not abuse or neglect for a representative or guardian to refuse health care for an
adult if doing so follows the wishes the adult expressed while they were capable, even if refusing
care results in death.
Anyone (including any nurse) who has information about an adult who is abused or neglected and
who is unable to ask for help may report the circumstances to an agency designated by the Public
Guardian and Trustee. Designated agencies include the five regional health authorities, Providence
Health Care and Community Living BC. In practice, those agencies may also require their own
employees to make such reports. Anyone who makes such a report is protected by the Act.
Once a report has been made, the agency must determine whether the adult needs support and
assistance. It does this by using the investigative powers granted under the Act, which include
obtaining reports from health care providers who have examined the adult or from agencies that
have provided health services to the adult. The agency may also provide emergency assistance
without the adult’s consent.
If a designated agency believes that someone has committed a criminal offence against an adult, the
agency has a duty to notify the police.
Health Care (Consent) and Care Facility (Admission) Act
CONSENT REQUIRED TO PROVIDE HEALTH CARE TO ADULT PATIENTS
Part 2 of this Act deals with adults or their representatives consenting to health care. It outlines the
scope and elements of consent; the requirement for health care practitioners, including nurses, to
seek consent to treatment (other than to a preliminary examination); how consent is obtained; and
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when consent may be dispensed with. It also confirms the right of a capable adult to give or refuse
consent to health care even if the refusal will result in death.
Note that this Act does not apply to psychiatric treatment and care for patients under the Mental
Health Act (see below), nor does it apply to care provided for patients under the age of 19, which is
governed by the Infants Act (see below).
A health care provider must decide whether an adult is capable of giving valid consent to health care.
In making this decision, the health care provider must determine whether the adult demonstrates
that they understand:
* The information provided about the proposed health care, including the condition for which
the health care is proposed, the nature of the care, the risks and benefits of the care, and any
alternatives AND
* That the information applies to their situation
If the adult is not capable of giving valid consent to health care, the Act sets out circumstances in
which consent can be given by a different person or in a different way.
ADVANCE DIRECTIVES
Under Part 2.1 of the Act, a capable adult may make an advance directive. An advance directive is a
written instruction that gives or refuses consent to health care in the event the adult later becomes
incapable of giving the instruction at the time the health care is required. Note that a person who
provides personal care, health care or financial services to the adult for compensation cannot be a
witness to the signing of an advance directive.
Generally, a health care provider may provide health care to an adult if they consented to the health
care in an advance directive, but must not provide health care to an adult if the adult refused
consent to the health care in an advance directive.
Where an adult has an advance directive, and that adult becomes incapable, only in very limited
circumstances will a substitute decision maker be asked to make decisions on behalf of the adult
about the specified health care. However, if a health care provider believes there are grounds not to
follow an advance directive, they must obtain substitute consent (see sections on substitute consent
below).
SUBSTITUTE CONSENT PROVIDED BY REPRESENTATIVE OR PERSONAL GUARDIAN
If a health care provider believes that an adult needs health care but is incapable of giving or refusing
that consent, the health care provider may seek substitute consent—but only after every reasonable
effort to obtain a decision from the adult has been made. Substitute consent may be given (or
refused) either by a person authorized by a representation agreement under the Representation
Agreement Act (see below), or by a personal guardian appointed as a committee under the Patients
Property Act (see below).
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Depending on its terms, a representation agreement may also supersede instructions given by the
adult under an advance directive. However, the instructions given in the advance directive are to be
treated as the wishes of the adult, expressed while capable, for the purposes of the Representation
Agreement Act
List and briefly explain 3 key take away messages from the above case example illustrating how nurses can prevent negligence
Negligence is nursing conduct that does not meet a standard of care established by law and carelessness, failure to use the degree of skill or learning ordinarily used under same or similar circumstances.
1.) Duty to Care not carried out, patient injury occurred due to this failure to provide care – standards of care (see below).
2.) Could the injury have been prevented due to what the nurse did or didn’t do? YES!
3.) Not following standards of care- i.e., competent care, communication, consistent and truthful documentation, knowing policy/procedures or “chain of command” within the institutions nurses are working
Canadian Nurses Protective Society (CNPS)
- Not-for-profit
- Not insurance company
- beneficiaries - nurses who can become members
- discretionary assistance - same model of flexible protection relied up by Canadian physicians
- occurence - based protection - no time limit
- individual protection with no group limits
How can the CNPS help nurses?
- defence
- call, early, often
- education and risk management
- advice
CNPS Supplementary Protection Program
protection in the case of a regulatory complaint
- legal representation
Issues for Nursing students and Newly-minted nurses?
- common legal proceedings
Sources of Law
Act of Parliament, Act of leg, relations, court decisions, administration tri. decisions
Canada’s Juridical system?
Canada is bijuridical country
Quebec retained the Napolein civil code as it provincial law. Rest of Canada is Common Law system, Statues and judicial precedence (cases decide alike)
Hierarchy of Laws
constitution law, federal statue and regulations, provincial statue and regulations, common law
Professionalism
- the manner of your communications is as important as your content
A failure of professionalism engenders two types of risk: - care of your patient
- risk of legal sanction against you
Legal disputes
- professional discipline e.g., under the regulated health Profession Act
- professional negligence lawsuit
- criminal offences
- human rights violations
- privacy law
- labour and employment
Standards of Nursing Practice
- an authoritative statement from the nursing regulative body that describes the mandatory minimum expectations of every nurse
- has its basis in the legislative governing nursing practice
- used to evaluate individual performance
Standard of Care
- in the law of negligence, the degree of care which
reasonably provided person should exercise in the same/similar circumstances to avoid foreseeable harm - A patient’s reliance on a nurse’s knowledge and expertise creates a fiduciary relationship that gives rise to a legal duty for the nurse to provide reasonable care. This does not signify that nurses necessarily have a duty to treat everyone they meet but if a person is relying on a nurse’s professional skills and knowledge, a legal duty for the nurse to provide reasonable care is established.
- legal determination made by court
How does Court determine the standard of care?
- legislation and regulation
- legal precedent
- standards of professional practice
- clinical guidelines e.g., SOGC, Fetal Health Surveillance
- Institutional policies
- expert opinions
Legal Risk Management
- identify that which you control and act accordingly
- evidence of your reasonable actions will assist you if you ever have to account for your practice in a legal proceeding
- in brief, the law expects a regulated health professional to adhere to the standards of the profession; practice ethically act reasonably and carefully in the circumstances, which includes exercising forethought for the benefit of your patient
