Week 4 - The Law and Healthcare Flashcards
1
Q
5 laws used in healthcare
A
1) constitutional
2) statutory
3) regulatory
4) common
5) civil law
2
Q
what is constitutional law
A
- addresses the relationship between the people and their government, and establishes, allocates, and limits public power
- in Canada, constitutional challenges related to healthcare rights have been based on the Canadian Charter of Rights and Freedoms, a fundamental part of the Canadian Constitution
3
Q
what is statutory law
A
- a statute is a law or an act
- statutory laws are the laws passed in Parliament (federal level) or in the provincial or territorial legislatures
–> statutory laws under federal authority include those dealing with immigration, taxation, and divorce
–> statutory laws under provincial/territorial jurisdiction include those related to education, family, and health care
4
Q
what is regulatory law
A
- a form of law that possesses the legally binding feature of an act
- in health care, regulatory law affects hospital boards, health care institutions, and bodies governing health care providers
5
Q
what is common law
A
- a body of law resulting from the decisions of the courts
- in Canada, law in all provinces and territories except Québec is based on common law.
6
Q
public vs private law
A
- public law encompasses matters between individuals and society as a whole, including criminal, tax, constitutional, administrative, and human rights laws.
- private law governs relationships between individuals or legal entities, covering areas such as contract, property, inheritance, family, tort (e.g., negligence), and corporate law.
7
Q
what is civil law
A
8
Q
what is tort law
A
tort occurs when one person or that person’s property is wronged or harmed by another, either intentionally (deliberately) or unintentionally
9
Q
intentional tort
A
- intentional tort occurs when the harmful act is deliberate
- in health care, it usually involves physical aggression or forcing unwanted medical treatment on a patient.
10
Q
unintentional tort
A
- unintentional tort occurs when the act caused physical or emotional injury or property damage but was not deliberate or calculated.
- usually result from acts of human error, misjudgement, or negligence
11
Q
what is negligence?
A
- negligence is a type of tort law
- negligence can be in the form of malpractice or professional misconduct
- negligence occurs when a health care provider (unintentionally) fails to meet the standards of care required of their profession
12
Q
what is malpractice
A
- illegal, negligent, or substandard treatment (failing to meet the treatment standards of one’s profession) by a medical practitioner
- malpractice may be intentional or unintentional wrongdoing that may or may not result in injury to a patient
–> examples: surgical errors, medication errors, failure to obtain informed consent, inadequate follow-up care
13
Q
what is professional misconduct
A
- refers to improper, unethical, or unprofessional behaviour by a professional in their field
- involves actions that violate ethical standards, codes of conduct, or professional regulations
–> examples: breach of confidentiality, conflicts of interest, fraud
14
Q
what is duty of care?
A
- duty of care is a legal obligation recognized by law
- requires individuals to take reasonable care to avoid actions or behaviours that could potentially cause harm to others
- almost all health care providers are bound by a duty of care that is in keeping with their profession’s standards of care
15
Q
what is contract law
A
- involves private agreements between parties, which are typically enforceable by the courts, similar to other legal obligations.
- for a contract to be valid and enforceable, it must comply with legal requirements and not violate governing laws or have an illegal purpose.
- a breach of contract occurs when one of the parties fails to meet the terms of the agreement.
–> contracts can exist between an employer and an employee, or a health care provider and a patient
–> they also may be either expressed (i.e., openly spoken or written) or implied (i.e., unspoken but considered understood)
16
Q
what is criminal law
A
- criminal law in Canada is primarily governed by federal legislation, notably the Criminal Code of Canada.
- it is a category of public law that deals with crimes against people, property, or both and those deemed intolerable by society (e.g.,murder, racism, theft)
- in healthcare, criminal charges consider factors like the duty of care, “do no harm” principle, and the professional’s level of authority.
17
Q
how jurisdictional power over healthcare decided?
A
- in Canada, no level of government has exclusive jurisdiction over health care
- instead, the Canadian Constitution Act of 1867 divides legislative powers between the federal and provincial governments
–> the federal government sets national standards and provides funding support
–> provincial governments are responsible for organizing and delivering healthcare services to their residents
18
Q
healthcare responsibilities of federal government
A
- responsible for setting national standards and policies related to healthcare through the Canada Health Act
- provides funding to provinces and territories through the Canada Health Transfer (CHT) to support the delivery of healthcare services.
-oversees healthcare services for specific populations, such as Indigenous peoples, veterans, and members of the armed forces - plays a role in regulating and funding health research, pharmaceuticals/ drug laws, and public health initiatives of national significance.
- oversees organizations devoted to workplace safety such as the Workers’ Compensation Board (WCB) and the Workplace Hazardous Materials Information System (WHMIS)
19
Q
healthcare responsibilities of provincial government
A
- primarily responsible for the organization, administration, and delivery of healthcare services within their jurisdictions.
- establish and operate healthcare facilities, including hospitals, clinics, and long-term care facilities.
- develop and implement their own healthcare policies and programs tailored to the needs of their populations.
- regulate healthcare professionals, such as physicians, nurses, and pharmacists, and ensure compliance with professional standards and licensing requirements.
- manage healthcare funding, allocate resources, and negotiate agreements with healthcare providers and organizations
20
Q
is healthcare a right?
A
- legal status of healthcare as a right in Canada is subject to interpretation, influenced by Canadian Constitution and Canada Health Act
- many Canadians view healthcare as a moral and legal right, though not explicitly stated in Canadian Charter of Rights and Freedoms.
- under universal healthcare, certain services are indirectly guaranteed by Canada Health Act, such as those that are “medically necessary”
- federal government can’t force provinces to comply with Act but can encourage through spending power.
- most jurisdictions comply with the Canada Health Act, which fosters a belief in healthcare as legal right.
- the Canadian Charter of Rights and Freedoms guarantees equality and non-discrimination in healthcare provision.
- while healthcare isn’t explicitly labeled a right, Charter emphasizes fair and equal access to healthcare for all
21
Q
what is considered “medically necessary” and is 100% covered by public funds?
A
hospital and physician services
22
Q
is offering private healthcare legal in canada?
A
- private health care clinics, operated independently outside the public health care system by physicians or surgeons, are not legally permitted in Canada.
- It is illegal for Canadians under most circumstances to have medically necessary procedures performed at a private facility.
- canadians are prohibited from purchasing private insurance for healthcare services typically publicly funded, such as joint replacement or cardiovascular surgery.
- concerns about allowing parallel healthcare systems, public and private, include fears of inequities in care and the creation of a two-tiered system
- canada has always had a mix of private and public health care, with private services regulated by federal, provincial, and territorial governments
- citizens are allowed to use insurance for anything that is not medically necessary, as well as dental care, medications and optometric services
–> québec is the only jurisdiction wherein a Canadian can purchase health insurance for private health care for designated medically necessary procedures
23
Q
what is consent?
A
- consent must be both informed and voluntary
INFORMED:
- patients must understand the treatment or procedure (purpose, the risks, side effects, benefits, and expected outcomes)
- patients must also understand the implications of refusing the recommended treatment and be made aware of alternative
VOLUNTARY:
- patients must not feel compelled to make a decision for fear of criticism, or feel pressured toward any particular decision by the information provider or anyone else
24
Q
6 types of consent
A
- express consent = giving permission for something either verbally or in writing
- written consent = signed, written form
- oral consent = given by spoken word over the phone or in person.
- implied consent = by virtue of the fact that an individual seeks the care of a physician or other health care provider
- consent in an emergency situation = emergency treatment without the patient’s permission can be performed in the professional’s opinion a delay will result in serious harm or injury
- advance care directive = a description of a treatment plan in (end-of-life) situations when you can’t speak for yourself
25
who can give consent?
- consent for treatment is typically given by a competent individual receiving the intervention.
- if the person is incapable of providing consent, their legal representative or next-of-kin assumes responsibility
- in most jurisdictions, the person with power of attorney or a substitute decision maker takes on this role.
- legal agreements assigning someone to make decisions for an incapable person are known as health care proxies.
- in the absence of a legally assigned person, provinces and territories may allow a spouse or family member to provide consent.
- some jurisdictions have a designated order of decision makers, prioritizing certain relatives based on availability
26
what is an advance directive?
- allow a person to state in advance the medical care the person would accept or refuse if he or she lost the ability to give consent
- are a way of making sure that your wishes and values are respected in important decisions for yourself
27
what is the age of consent for minors?
- the age of majority (typically 16 years old) as the benchmark for giving consent for medical treatment is becoming irrelevant
- instead, the maturity of an individual as a marker for giving consent is the benchmark in all jurisdictions except Québec (14 years old)
- as long as the minor fully understands the treatment and its risks and benefits, they can make an informed decision about accepting or rejecting the treatment, and health care providers must respect their wishes.
28
good samaritan
- often used to describe someone acting selflessly to benefit others, even if a total stranger
- good Samaritan laws legally protect anyone who offers to help someone in distress if something goes wrong from litigation
29
whistleblower
- a whistleblower is a current or past employee or member of an organization who reports another’s misconduct to a people or a person of higher power - a whistleblower may also be a member of the public with no ties to an organization.
- whistleblowers often suffer a backlash, such as demotion, suspension, or termination for their efforts or from friends, colleagues
30
what is a health record?
- any person who has received health care in Canada at any time possesses a health record
- it is an accumulation of health information relating to their interactions with medical services (which is typically electronically recorded and stored)
- depending on the nature of the facility and those involved in the patient’s circle of care, a health record may consist of information gathered from many sources
--> in the hospital setting, records (manual or electronic) will contain numerous and varied reports and records
--> doctors offices may also maintain a variety of reports such as diagnostic reports, consultation reports, history sheets, a record of what happened at each encounter including the reason for the visit and the treatment received
31
what are the laws governing privacy?
- Privacy Act (1983)
- the Personal Information Protection and Electronic Documents Act (2004), known as PIPEDA
32
what is the privacy act?
- the Privacy Act applies to federal government institutions
- it governs the collection, use, and disclosure of personal information and restricts the use and sharing of personal information collected
- mandates that federal departments and agencies limit the collection of private information from individuals.
- individuals have the right to access and correct any information held about them by federal government organizations
33
what is the personal information protection and electronic documents act?
- PIPEDA is known as a consent-based legislation that protects personal information collected within the private sector
- it requires any organization collecting and using personal information to present patients with consent forms that fully disclose how their personal information will be collected and managed
- PIPEDA does not usually affect hospitals and other health care facilities since most are not overtly involved with commercial activities.
- any health care providers with private practices and involved in any type of commercial activity (e.g., dentists, chiropractors, and optometrists) are subject to PIPEDA unless similar public legislation applies
34
what are some of the challenges of electronic health information records?
- the widespread accessibility of electronic health records increases the risk of breaches in confidentiality (more people have access to the information)
- potential exists for information theft or data breaches by hackers
- individuals can gain unauthorized access to electronic information because of carelessness with passwords
35
what is MAiD?
- Medical assistance in dying (MAiD) became legal in Canada in 2016
- is a process through which a doctor or nurse practitioner assists an individual, at their request, to intentionally end their life
36
eligibility requirements for medical assistance in dying (MAiD)
1) age
- be over the age of majority (18 or 19 years, depending on the jurisdiction)
- and mentally competent (to make health-related decisions) to apply for medical assistance in dying
2) health coverage
- have a valid health card in the province or territory in which they live, or have health coverage through the federal government.
- this essentially discourages visitors to Canada from trying to apply for MAiD.
3) health status (the person must..)
- have a serious disease, illness, or disability, or other irreversible medical condition.
- in the advanced stages of decline that cannot be reversed.
- experience unbearable and irreversible physical or mental suffering that cannot be alleviated as a result of the disease or disability (quality of life is poor)
37
what is confidentiality?
- refers a health care provider’s moral and legal obligation to keep a patient’s health information private
- any health care provider involved directly in a patient’s case (the circle of care) can legally access relevant portions of the patient information for legitimate reasons while providing care but must legally and ethically keep all health information confidential
- under some circumstances, health care providers may have a moral and legal responsibility to release confidential health information (i.e when an individual has harmed or is in danger of harming themselves or others)
38
what is the occupational health and safety act?
- the Occupational Health and Safety Act (OHSA) in each province and territory applies to workplaces within that region (exception of those overseen by the federal government) and work done by owners in private residences
- designed to promote a safe workplace and protect the rights of workers.
- it establishes guidelines, ensures legal enforcement, and outlines specific rights for employees.
39
rights of OHSA
- the right to be informed about potential safety and health hazards in the workplace.
- the right to participate in activities aimed at preventing occupational accidents and diseases, such as serving on committees or acting as a health and safety representative.
- the right to refuse to perform work that poses a danger to their health or safety without risking their job security.
40
what is the role of unions in health care advocacy?
