CMPA Medical-legal handbook for Physicians in Canada

Medical-legal handbook

for PHYSICIANS IN CANADA

This handbook provides insight into basic legal concepts and underlying principles that govern physicians in their practices

cmpa-acpm.ca

VERSION 8.3 (MARCH 2020) THE CANADIAN MEDICAL PROTECTIVE ASSOCIATION OTTAWA, CANADA All reproduction rights are reserved. Ce document est aussi publi? en fran?ais.

The Canadian Medical Protective Association (CMPA) provides medical-legal protection to physicians licensed to practise medicine in Canada. As the principal provider of medical liability protection in Canada, the CMPA is committed to protecting the professional integrity of physicians and promoting safe medical care. To fulfill this mandate, the CMPA provides a range of services to members in both English and French including medical liability protection, advice and assistance, risk management and education, and publications. This handbook is available on the CMPA website at cmpa-acpm.ca. PHOTO CREDITS Cover: (iStock), Page 1: nyul (iStock) Page 2: DNY59 (iStock), Page 20: OJO_Images (iStock), Page 38: shapecharge (iStock) Page 45: francisblack (iStock) Page 50: Yuri (iStock)

Medical-legal handbook for physicians in Canada

Table of contents

INTRODUCTION

1

Medicine and the law

1

LEGAL PROCEEDINGS

3

The Canadian legal system

3

The litigation process

4

Cause of action

9

Liability for the acts of others

10

Damage awards

12

The physician as an expert witness

15

Non-resident patients

19

MEDICAL-LEGAL PRINCIPLES AND DUTIES

21

Negligence, civil responsibility, and the standard of care

21

Consent

23

Informed discharge

29

Confidentiality

29

Medical records

32

IMPORTANT LEGISLATION

39

Reporting patients unfit to drive

39

Reporting child abuse

40

Blood alcohol samples

40

Mental health legislation -- Involuntary admission

41

Medical certificates

42

Regulations to access marijuana

43

Firearms Act

44

SAFE MEDICAL CARE

45

Disclosure and reporting of harm from healthcare delivery

45

Terminology

46

Interprofessional (collaborative) care

46

Scarcity of resources

47

FUTURE CONSIDERATIONS

51

The Canadian Medical Protective Association

Introduction

Medicine and the law

This handbook provides insight into basic legal concepts and underlying principles that govern physicians in their practices. It also offers physicians a greater understanding of the standards and requirements imposed on them by law. This will better equip physicians to recognize and avoid medical-legal difficulties. It is important to highlight that some of the legal principles addressed in this document arise out of the common law system, which applies to all provinces and territories in Canada except Qu?bec. Civil law in Qu?bec has its own legal principles. Similarities exist nevertheless in the application of these two legal traditions in Canada. The interaction between law and medicine permeates almost all aspects of a physician's practice and, of course, goes far beyond events or mishaps that might give rise to litigation. This diversity is reflected in the fact that each year the CMPA receives thousands of inquiries from its members about practice-related issues, including the application and interpretation of provincial or territorial statutes that impinge on the practice of medicine in ever-increasing numbers. Members can contact the CMPA for advice on a broad range of medical-legal issues arising from their professional work in Canada. They receive the benefit of advice from people who understand their situation -- experienced physician advisors who are doctors with clinical practice backgrounds in various specialties and settings. Physician advisors are available to provide advice and, when warranted, arrange further legal assistance for matters arising from a member's professional work, including the following: civil legal actions regulatory authority (College) complaints, investigations, and disciplinary hearings coroners' inquests or other fatality inquiries billing audits or inquiries hospital privilege matters criminal proceedings some general contract or research contract matters privacy legislation breaches and privacy complaints human rights complaints When members face a medical-legal action, they are eligible for assistance in the form of legal representation, and payment of legal costs, judgments, or settlements to compensate patients where it is determined those patients have been harmed by negligent care (in Qu?bec, professional fault). The CMPA works with an independent general counsel and with selected legal firms in each province (provincial counsel) to ensure that members have the support necessary to achieve the best possible outcome.

The Canadian Medical Protective Association 1

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