Version 9.0 — May 2021; Revised February 2022
Table of contents
2. Legal proceedings
3. Medico-legal principles and duties
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. While some physicians may be quite familiar with these legal concepts, the handbook is written mainly for physicians who are new to these ideas. The information in the handbook will assist in reducing the level of stress for physicians who are involved in legal proceedings and better equip all physicians to recognize and avoid medico-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 Québec. Civil law in Québec has its own legal principles. Some 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 medico-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 medico-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 Québec, 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.
Definitions of common medico-legal terms used in this handbook are available in the CMPA’s Glossary of terms.
The Canadian legal system
Generally speaking, activities are governed by two sources of law: the law created by statute, either federally, provincially, or territorially; and the common law developed by judgments rendered in legal actions that have proceeded through the courts. In Québec, a codified system of civil law is used, though for the most part the underlying principles of medico-legal jurisprudence are similar to those in common law provinces and territories.
There are also two types of legal actions: civil and criminal. A civil action involves the resolution of disputes between two or more parties by resorting to the litigation process. Today this often includes mediation. Criminal actions involve the prosecution of an individual charged with committing an offence as defined by statute, usually the federal Criminal Code.1 There are also quasi-criminal offences set out in other federal statutes (e.g. the Controlled Drugs and Substances Act2 ) as well as in several provincial and territorial statutes.
Civil and criminal actions are heard by much the same courts, although the jurisdiction of some courts is split into civil and criminal divisions. The accused in a criminal action often has a right to elect trial by jury. An absolute right to a jury is only available to plaintiffs in a civil action in Saskatchewan.3 Jury trials in civil actions have been abolished in Québec. Traditionally, civil actions in the remaining provinces and territories are heard by a judge alone, but in recent years there has been an increasing trend toward jury trials.
A defendant in a civil action may be found liable if the essential elements of the claim are established on a balance of probability, while the accused in a criminal action will not be found guilty unless the charge is proven beyond a reasonable doubt. A defendant found liable in a civil action must pay an amount of money awarded to the plaintiff in damages. The accused found guilty in a criminal action may be fined, imprisoned, or both.
The plaintiff or defendant in a civil action, and the Crown or the accused in a criminal action, may appeal any judgment rendered. The appellate court will not interfere with the decision, however, unless the court is satisfied there has been an error in law or the decision is plainly unreasonable and unjust when reviewing the evidence as a whole. While the accused in a criminal action may appeal to the Supreme Court of Canada without permission (depending on the circumstances), a party in a civil action must obtain the leave (permission) of the court to appeal the judgment of a provincial or territorial Court of Appeal to the Supreme Court of Canada.4 It is, however, becoming increasingly difficult to obtain such leave (permission); it is only granted when one clearly demonstrates to the court that an aspect of the case is of national importance.
The litigation process
A number of events might alert the physician to impending litigation:
- A clear error is made (e.g. an operation on the wrong patient or on the wrong part of the body).
- A serious and unexpected mishap occurs in the course of treatment.
- The patient expresses dissatisfaction with the care provided.
- A complaint is made to the College.
- A decision is made to hold an inquest or other investigation into the death of a patient.
The most common announcement of an impending legal action, however, is the receipt of a letter from a lawyer on behalf of the patient, or the family after the patient’s death. Some of these letters simply request copies of the medical records and may include general questions for the physician about the treatment rendered, the complication that occurred, and the current prognosis for the patient. If the lawyer is forthright, the letter will also advise that a legal action is being considered or has already been commenced against the physician, and will suggest that the defence organization or insurance company be contacted. While not all lawyers’ letters necessarily lead to a legal action, physicians should have a high degree of suspicion anytime they receive a letter from a lawyer.
Often there is no warning whatsoever about an impending legal action until the physician is served with a notice of action or its equivalent. Service of the notice of action is usually accomplished when a document is delivered personally to the defendant physician by a bailiff or other process server. A notice of intent to defend or a notice of appearance must be filed into the court on behalf of the defendant physician within strict time limits, so it is essential that physicians notify the CMPA immediately when served with any legal document pertaining to their medical practice.
In some provinces and territories, the legal action is initiated by a statement of claim, which is again almost always served on the defendant physician personally. In Québec, this document is called a “judicial application originating a proceeding” and follows a formal demand letter.5 In the remaining jurisdictions, the statement of claim usually accompanies the notice of action. The statement of claim sets out, in a concise manner, the facts and particulars on which the plaintiff is relying to establish a cause of action or alleged wrongdoing against the defendant. It is not unusual for the statement of claim to include allegations that challenge the defendant physician’s competence and reputation.
A statement of defence is the answer prepared on behalf of the defendant to the allegations set out in the statement of claim. In essence, this response sets out the facts, allegations, and denials on which the defendant intends to rely in refuting the claim asserted by the plaintiff. While again there are time limits for the filing of a statement of defence, an accommodation is almost always reached between lawyers to allow time to obtain records and information necessary to prepare the statement of defence. During this time, the defendant physician will be asked to provide legal counsel with a narrative account and copies of the office records concerning the patient. Often the defendant doctor will also find it valuable to meet with defence counsel to discuss the case. On occasion, a cross-claim may be included in the statement of defence to raise the allegation or argument that a co‑defendant in the legal action is responsible in whole or in part for the claim being asserted by the plaintiff; therefore, the defendant is entitled to contribution or indemnity from the co-defendant respecting any damages that might be awarded. Similarly, a third-party claim, or claim in warranty in Québec, may be initiated on behalf of the defendant against a person or party not already named in the original action, again on the basis that this person or party is responsible in whole or in part for the claim being asserted; therefore, the defendant is entitled to contribution or indemnity for any damages awarded.
Upon receipt of a statement of claim, some physicians may contemplate commencing an action in defamation or initiating a countersuit against the plaintiff or the plaintiff’s lawyer, or both. However, allegations set out in a statement of claim are privileged and, therefore, cannot form the basis of an action in defamation against the plaintiff or the lawyer.
A countersuit is extremely limited in availability and is generally not an effective response to even a frivolous legal action.
Adopting a vigorous defence is a much more effective and expeditious manner of dealing with clearly unwarranted legal claims, which are often quickly abandoned or concluded by means of a dismissal order.
Many legal actions seem to stall once pleadings have been exchanged; indeed, many are simply abandoned at this stage. For those actions that proceed, the defence counsel carefully investigates the claim by obtaining copies of all relevant hospital and medical records, discussing the file thoroughly with the defendant physicians, and obtaining preliminary expert opinion. These steps may take months, even a year or more.
Preliminary applications may be made to the court from time to time for directions or a determination on a point of law. These usually proceed in the absence or even without the knowledge of the physician.
One of the most important stages in the litigation process, and the next step in the legal proceedings, is conducting examinations for discovery. This pre-trial examination allows legal counsel to question each other’s client under oath before a court reporter who prepares a transcript of the questions and answers.
In some jurisdictions, legal counsel may conduct an examination for discovery of individuals not included in the legal action, such as another treating physician or an expert witness. In most jurisdictions, however, such examinations for discovery or interviews of other treating physicians may only take place, if at all, pursuant to a court order.
The individual being examined is usually subjected to detailed questioning as to any knowledge, information, and belief concerning the facts and issues in dispute in the legal action. It is extremely important that these examinations be taken seriously. The physician is expected to diligently prepare by carefully reviewing all the medical records pertaining to the patient. As well, the physician must co-operate fully and be available to meet with legal counsel in preparation for discovery. It is extremely difficult to back away at any subsequent trial from an answer given during examinations for discovery. Legal actions are often won or lost at this stage.
Increasingly, mediation is being introduced into the litigation process. In Ontario, for example, there are mandatory mediation requirements even before discoveries may be completed.6 Often legal counsel for the parties simply agree to voluntarily participate in mediation. In a somewhat similar vein, it is common in some jurisdictions to use pre-trial conferences with a judge, usually one other than the judge who will preside at trial. Both mediation and pre-trial conferences attempt to reach agreement on issues in dispute to facilitate resolution or at least shorten any trial.
The culmination of these legal proceedings, which can span 4 to 6 years, is the trial of the action. Several months, indeed even several years, can pass between the time an action is ready for trial and the commencement of trial. It is important to remember, however, that a legal action can be settled at any stage before the trial is concluded. As noted earlier, in most provinces and territories trials are traditionally heard by a judge alone, without a jury. There is, however, a trend on the part of lawyers acting for patients to seek a jury trial. In jurisdictions where juries are permissible, whether or not there should be a jury must be decided on the merits and circumstances of each case, particularly the complexity of the points to be decided and the medical or scientific evidence to be anticipated.
The trial of medico-legal actions often span several weeks or months. It is, of course, necessary for the defendant physician to be in court for most, if not all, of this time, which can create considerable hardship. The trial judge almost always takes the case under advisement at the conclusion of the trial and the reasons for judgment are usually not delivered for some months. Each party may appeal the judgment. Again, it takes some time for the lawyers to prepare factums and transcripts of the evidence introduced at trial before the appeal is heard. The physician may, but need not, be present at the hearing of the appeal. There may be an additional delay while the appellate court deliberates before rendering judgment.
If a party is not satisfied with a judgment of a Court of Appeal, they may seek leave (permission) to appeal the case to the Supreme Court of Canada. In the event the case is considered sufficiently important that leave is granted, there will be additional delays before the appeal can be heard and final judgment is rendered.
The CMPA’s primary interest is the protection of the professional integrity of its member physicians. However, when a review of the medical facts reveals that shortcomings in a physician’s work have resulted in harm to a patient, the CMPA will arrange for a financial settlement that is fair to all concerned. When the claim is clearly indefensible, a settlement is negotiated as early as possible. For the most part, however, settlements are not effected until after examinations for discovery to allow the evidence and credibility of the parties to be assessed, and expert opinion to be obtained as to whether or not the work of the defendant doctor is defensible. The CMPA does not settle cases on the basis of economic expediency when a physician’s care is defensible.
To put this in perspective, over a five year period (ending in 2019), approximately 56% of all actions commenced against physicians were dismissed or abandoned short of trial, and approximately 36% of all cases were settled. The remainder proceeded to trial and most were successfully defended. Figures for more recent years are available in the CMPA Annual Report.
Statutes of limitation
The limitation period is the allowable time interval and the conditions, as determined by statute, between the time of the alleged negligence or fault and the commencement of a civil action. The limitation period commonly incorporates the principle that the time for commencing an action against a physician does not start to run until the patient knew or ought to have known the facts on which the action is based. This principle can extend the limitation period significantly, meaning that a patient could commence an action several years after the alleged negligent treatment was provided. This can happen, for example, when a court considers that the patient required an expert opinion on the care provided before being considered to have the necessary knowledge to commence an action.
All jurisdictions require that the running of the limitation period must be postponed when the plaintiff is under a disability, either by being under the age of majority or mentally incompetent. The result can extend the limitation period to upwards of 20 years, and longer for patients suffering from a mental disability.
A number of provinces and territories have placed a cap on the length of time a patient may have to initiate an action against a physician. The outside time limit in Prince Edward Island, for example, is 6 years from the date of termination of treatment.7 In Alberta8 and Newfoundland and Labrador,9 it is 10 years from the cause of action; it is 15 years in British Columbia,10 Saskatchewan,11 New Brunswick,12 Ontario13 and Nova Scotia 14 ; and it is 30 years in Manitoba.15 These caps do not apply, however, while a patient is below the age of majority or is unable to bring the claim due to disability.
The CMPA has consistently argued that prolonged and uncertain limitation periods pose problems for physicians in terms of the need to store records for long periods of time, the availability of witnesses, and so on. It may be argued that this is true for any type of litigation, but when actions involve medical matters, the problems are particularly difficult. Most important, because of rapid changes in medical science, it becomes very difficult for courts to fairly assess a physician’s work respecting the applicable standard of care if that work was done a decade or more earlier.
The table below is a summary, by province and territory, of the limitation periods for commencing actions against physicians (current to August 2020).
Three columns: Province/Territory, Basic limitation period, Postponement for disability (Infancy or mental incompetence)
|Province/Territory||Basic limitation period||Postponement for disability |
(Infancy or mental incompetence)
||Two years from knowledge of facts, but no more than 15 years from cause of action
||Postponement until termination of disability
||Two years from knowledge of facts, but no more than 10 years after the claim arose
||Postponement until termination of disability
||Two years from knowledge of facts, but no more than 15 years from cause of action
||Postponement until termination of disability
||Two years from termination of professional services subject to discretion of the court to extend time up to 30 years
||Postponement until termination of disability (up to 30 years maximum)
||Two years from knowledge of facts, but no more than 15 years from cause of action
||Postponement until termination of disability
||Three years from the date of fault or from date of knowledge of facts
||Prescription does not run against persons if it is impossible for them to act by themselves or to be represented by others
||Two years from knowledge of facts, but no more than 15 years from cause of action
||Postponement until termination of disability, then action must be commenced within 1 year
||Two years from knowledge of acts, subject to an additional 2 years at the discretion of the court, but no more than 15 years from cause of action
||Postponement until termination of disability, again subject to additional 2 years at the discretion of the court
|PRINCE EDWARD ISLAND24
||The longer of 2 years from the alleged negligence or knowledge of facts, but no more than 6 years from the termination of treatment, except in the case of fraudulent concealment or a retained foreign body
||Postponement until termination of disability, then action must be commenced within 2 years
|NEWFOUNDLAND AND LABRADOR25
||Two years from knowledge of facts, but no more than 10 years from date of treatment
||Postponement until termination of disability, then action must be commenced within 1 year
||Two years from knowledge of facts
||Postponement until termination of disability
||Two years from knowledge of facts
||Postponement until termination of disability
||Two years from knowledge of facts
||Postponement until termination of disability
Cause of action
A cause of action refers to the set of facts or alleged faults that, if established, give rise to the claim for damages. More than one cause of action can arise out of the same situation and may be advanced under one or more of the following headings.
Negligence or civil responsibility
Most legal actions brought against physicians are based on a claim for negligence (or, in Québec, civil responsibility). These actions allege that the defendant physician did not exercise a reasonable and acceptable standard of care, competence, and skill in attending upon the patient and, as a result, the patient suffered harm or injury.
It is also common for plaintiffs to assert a claim alleging that, in obtaining consent, the physician failed to provide all the information about the nature and anticipated effects of the proposed procedure, including the significant risks and possible alternatives that a reasonable person would wish to know in determining whether to proceed. This “reasonable patient” standard for informed consent is entrenched in many codes of ethics and in legislation, including the Civil Code of Québec.29 To succeed with such a claim, the plaintiff must demonstrate that in the face of full disclosure, a reasonable person in the patient’s place would have refused the procedure.30 It is this aspect that defeats most claims alleging lack of informed consent.
Courts have long recognized that the physician-patient relationship is built on trust; this relationship of trust is the basis of the concept of fiduciary duty. Physicians’ fiduciary duty means they must act with good faith and loyalty toward the patient and never place their own personal interests ahead of the patient’s. Claims of a breach of fiduciary duty are most often brought when it is alleged that the physician has abused the trust within the physician-patient relationship by having an inappropriate sexual relationship or committing sexual misconduct. However, fiduciary duty may be asserted regarding any duty imposed by law arising from the physician-patient relationship. Plaintiffs who do not believe they have a strong claim based on traditional negligence principles increasingly allege breach of fiduciary duty.
A court may allow a claim of negligent misrepresentation against a physician arising from a medico-legal report found to contain a professional misstatement or erroneous opinion about the patient’s prognosis. The elements of negligent misrepresentation include: a special or professional relationship between the parties; the representation or opinion must be untrue, inaccurate, or misleading due to the negligence of the professional; the receiver must have relied on the misrepresentation or erroneous opinion; and, as a result of such reliance, the individual must have suffered damages.31 When providing a medico-legal report or expert opinion, physicians must take care to remain within their area of practice or specialty and avoid vague statements or speculation as to prognosis.
Negligent misrepresentation is related to, but different from, defamation, which is discussed in the section Defamation or injury to reputation.
Breach of contract
In provinces and territories that are subject to common law, breach of contract claims are made when it is alleged that the physician has breached an express or implied term of the agreement that arises out of the physician-patient relationship, and usually involves an allegation that the physician failed to achieve a guaranteed result. This occurs most often in the context of cosmetic surgery. A claim for breach of contract may also be made when it is alleged that the physician, or someone for whom the physician is responsible in law, has disclosed confidential information about the patient without proper authorization or without being legally required to disclose it. In Québec, the concept of the medical contract has a more general application.
Assault and battery
The Supreme Court of Canada has restricted claims for assault and battery to non-emergency situations where the physician has carried out surgery or treatment on the plaintiff without consent, or has gone well beyond the procedure for which consent was given.32 An assault and battery may also be committed where fraud or misrepresentation is used to obtain consent. These claims are, for the most part, now restricted to errors where the wrong operation is performed on a patient or an operation is performed on the wrong patient.
False imprisonment claims can arise when patients allege they were restrained or confined against their will without reasonable cause or lawful authority. There have been very few actions against physicians for false imprisonment, most of which are brought by patients against psychiatrists and psychiatric institutions.
Defamation or injury to reputation
Defamation claims are based on a statement, written or oral, that is alleged to bring the plaintiff into ridicule or contempt or that causes the plaintiff to be shunned, avoided, or discredited. There have been very few actions for defamation, yet physicians still fear such claims, particularly when required to give critical comments about a colleague or patient. These concerns are unnecessary; not only is the truth of the statement a full defence, in most instances the statement is probably also protected by “qualified privilege.” The defence of qualified privilege protects a person, whether or not the words are in fact true, provided the person had a duty to make the comments and in so doing the individual acted fairly. The duty does not necessarily need to be a legal one—a moral duty suffices. In order to be seen to have acted fairly, it must be demonstrated that the individual made the statement honestly and in good faith, without malice.
Liability for the acts of others
Generally speaking, individuals are personally liable for negligent acts or professional faults they commit. This is called direct liability. Individuals may also be held liable for the negligence or civil responsibility of their employees or agents. This is called vicarious liability.
It follows that physicians may be held liable for the work of any health professional in their employ. A physician who practises in a partnership is also jointly and severally liable for negligent acts or professional faults committed by any partner in the course of the partnership business.
In the hospital setting, the hospital is vicariously liable for the negligent acts or professional faults of nurses, physiotherapists, and other healthcare providers it engages as employees or agents of the hospital. Generally, physicians on the medical staff of a hospital are engaged or granted privileges as independent contractors and not employees of the hospital. As a result, hospitals will not typically be held vicariously liable for the negligence or civil responsibility of physicians on the medical staff.
Responsibilities of heads of departments and chiefs of staff
Physicians have expressed concern about potential liability they might incur when accepting positions as head of a department or chief of staff. There have been very few legal actions to date where the role of a physician as head of a department or chief of staff has been a focal point in the litigation. This is not to say there is no risk of liability, but the magnitude of the risk should be kept in perspective.
As head of a department or chief of staff, physicians function as officers of the hospital. They work hand-in-hand with the administration to help carry out the broad duties owed by the hospital to patients. Those duties extend to the selection, organization, and monitoring of both professional and non-professional staff, as well as the acquisition and maintenance of appropriate facilities and equipment to reasonably ensure that patients receive adequate and proper care.
The specific duties and responsibilities of heads of departments and chiefs of staff are often set out in provincial or territorial legislation governing hospitals (in Québec, An Act Respecting Health Services and Social Services33 ) and in the hospital’s by-laws. Generally, physicians in these positions are expected to:
- exercise responsibility for the general clinical organization of the hospital
- supervise all professional care given to all patients within the hospital
- report to the medical advisory committee (in Québec, the council of physicians, dentists, and pharmacists) respecting medical diagnosis, care, and treatment provided to the patients and outpatients of the hospital
- exercise responsibility for the organization and implementation of clinical review programs and encourage continuing medical education
- intervene in the management of the patient when becoming aware of a serious problem in the diagnosis, care, or treatment, and appropriate steps are not being taken by the attending physician
- participate in the appropriate committees of the hospital
There is sometimes fear that the head of a department or the chief of staff might be held responsible for any mishap caused by another member of the medical staff or another healthcare provider over whom it may be said they have administrative or supervisory responsibilities. It is always difficult to speculate about the extent to which legal liability might devolve in any hypothetical situation. Much depends on the circumstances of each case. Nevertheless, the head of a department or the chief of staff is not expected to be a guarantor of the work of other members of the medical staff or other healthcare providers.
More specifically, the liability risk for heads of departments or chiefs of staff does not extend to them being held liable simply for the negligence or civil responsibility of another member of the medical staff or other healthcare providers, including medical students or residents. Liability is only engaged if they fail to act reasonably in carrying out the duties assigned to them by legislation and the by-laws of the hospital, or if they fail to intervene when they know, or ought to know, that a patient may come to harm without intervention.
Damages are awarded to a patient as a result of either a successful legal action against the defendant physician(s) or as a negotiated settlement of the claim.
Interestingly, since the 1990s there has been a steady decrease in the frequency of legal actions brought against physicians. This is thought to be due in part to better medical care resulting in fewer patient safety incidents, increased awareness and understanding of patient safety measures, and enhanced risk management procedures. It is useful, nevertheless, to review some factors that contribute to the commencement of a legal action against a physician:
- The most frequent factor is a lack of adequate communication between the physician and the patient. Patients are most likely to sue when they feel they have not been kept informed about their progress or complications. Physicians are therefore encouraged to foster and maintain good communication with their patients.
- Public awareness of recent advances in medicine often leads to unrealistic expectations such that people equate complications and poor results with negligent treatment.
- Counsel for the patient may be encouraged to initiate or continue with some legal actions due to an unrealistic standard of care advocated by expert consultants retained on behalf of the patient.
Size of awards
While the frequency of medico-legal actions has stabilized, there has been a substantial increase over the same time frame in the court award of damages and in the amount of settlements negotiated in favour of patients.
Many factors account for this increase in damages. Certainly, the more complex medical and surgical treatment methods become, the greater the risk of more serious complications. Advances in medicine have resulted in the resuscitation and long-term survival of patients, but with some of them, unfortunately, having severe and permanent disabilities. As a result, items of damages for cost of future care and loss of income are large, and in the case of compromised babies, often amount to millions of dollars.
One of the major factors giving impetus to the rise in the size of awards was the decision of the Supreme Court of Canada in 1978 that detailed the manner in which courts must proceed in assessing damages.34 No longer could global sums be awarded recognizing in only a general way the harm that may have been done to the plaintiff. The courts are now required to assess each item of damages separately, with the total often adding up to a substantial figure. Individual amounts must now be calculated for each of the following items:
General or non-pecuniary damages
These are intended to compensate the injured party for pain and suffering, loss of amenities, and loss of enjoyment of life. The proper approach to this item is functional, in the sense of providing injured persons with reasonable solace for their misfortune.
In 1978, the Supreme Court of Canada established an upper cap for general damages,35 which is adjusted regularly to account for inflation. This maximum award applies only in the most catastrophic of cases where the individual has suffered severe injuries, such as quadriplegia, and is fully aware of the extent of such injuries. Other claims are scaled down from this amount.
Cost of past medical care and other special damages or pecuniary damages
These relate to expenditures incurred by or on behalf of the patient for medical expenses, hospitalization, medical supplies, transportation costs, household assistance, and the like, made reasonably necessary as a result of the harm or injuries sustained by the patient.
This item also includes any claim the provincial or territorial healthcare agency may seek to advance for reimbursement of medical and hospital expenses incurred by the province or territory on behalf of the patient.
Future medical and hospital care
The calculation of these amounts can vary enormously depending on the nature of future care needs for the injured patient and the anticipated duration of such care. The courts have demonstrated a propensity, based on the opinion of rehabilitation experts, to favour a home-care environment for the seriously disabled, including compromised babies. This often necessitates home modification, or even acquisition of a new home, and employment of specialized attendant care. With ever-increasing life expectancies, this lump sum amount for future care often amounts to millions of dollars.
The cost of future care is calculated on the basis that the entire capital sum set aside will be used up by the time the last payment for future care is made. Because some of this investment income will be lost through taxation, the courts have been persuaded that there must be a gross-up on the lump sum award to provide additional funds to pay income tax. The calculation of this gross-up has at times increased the lump sum award for future care by 50% or more.
Loss of past or future income or loss of earning capacity
The amount of these claims varies according to the nature of work and the length of time the patient is disabled or kept out of the workforce. In some instances the patient may be too young to be working, or may be temporarily unemployed. In these cases, there is no established loss of income but rather a loss of earning capacity. In calculating loss of earning capacity, the court will look to the patient’s level of education, and employment experience or expectations. For injured infants, the courts will look to other factors including the education and occupation of the parents and average wage statistics.
The Supreme Court of Canada has repeatedly held that the loss of income is to be calculated using the gross amount of the patient’s income and not the net income the patient receives after paying income taxes, even though the patient is not required to pay income tax on an award for loss of income.36
Patients who are off work due to a medically related injury often continue to receive income through collateral sources such as employee benefits, disability insurance, unemployment insurance, and welfare benefits. The Supreme Court of Canada has again held that no deduction is to be made to account for such collateral source payments when calculating the patient’s loss of income.37 Any change in these methods of calculating loss of income will require legislation.
The patient is entitled to interest on all items of damages, except awards of future care and loss of income, calculated back to the commencement of the action. Bearing in mind that many legal actions take 5 years or more to proceed through the courts, pre-judgment interest can also serve to inflate damage awards significantly.
Claims on behalf of family members
These awards are intended to compensate for additional services performed and to recognize the loss of guidance, care, and companionship other members of the patient’s family suffered as a result of the patient’s injury.
As well, family members are entitled to claim for loss of financial support where the patient has died as a result of the medical injury. These amounts are calculated on an apportionment of the net after-tax income of the deceased that the family member might have expected to receive.
Exemplary and punitive damages
Patients will occasionally advance such a claim to punish the defendant physician. These claims are rarely successful. Such an award will only be made where the misconduct of the physician is so “malicious, oppressive, and high-handed”38 that exemplary or punitive damages are necessary to serve as a deterrent. In Québec, the unlawful and intentional infringement of rights protected under the Québec Charter can justify the award of punitive damages.39
While the majority of legal claims brought against CMPA members are successfully defended, it is anticipated that damages awarded to patients in a judgment or settlement will continue to rise. The two aspects most responsible for this increase are the claims for loss of income and earning capacity, and the cost of future care. While the CMPA supports efforts to address rising damages in medical liability cases, members and patients can take comfort in knowing that the CMPA has no financial limits on the damages paid to patients.
Substantial savings may be achieved in the cost of future care through greater use of structured settlements, whereby an annuity is purchased to provide a guaranteed tax-free stream of periodic payments to ensure the injured patient receives the necessary future care for life. Some of the potential savings flow from the defendant not having to pay a tax gross-up amount because the periodic payments are not taxable.
Structured settlements also benefit the patient. There is the certainty and stability of payments into the future and elimination of the patient’s investment risk. A capital amount or lump sum paid to the patient is vulnerable to poor decisions concerning investments or misuse of the money, and so the capital may be dissipated well before the future monetary requirements to provide care to the patient are exhausted. A structure may also offer flexibility, with the annuity being tailored to vary the stream of payments to take anticipated changes in economic conditions or the patient’s circumstances into account. Finally, a structure provides security into the future, as the annuity payments are guaranteed for life.
Although there is encouragement within legislation or rules of court in several provinces and territories to use structures, the courts are not generally empowered to require structured payments when awarding damages for future care. Stricter legislation or rules are required to forcefully take advantage of the benefits of structured settlements to plaintiffs and defendants. Such legislation or rules should also address factors that can reduce the cost savings associated with structures, such as a low-interest economic climate and a limited group of life insurance companies willing to guarantee periodic payments.
The physician as an expert witness
The expert witness or consultant assists and advises the court through the expression of expert opinion as to what constitutes a reasonable standard of conduct, skill, and knowledge in the circumstances of a particular case. Above all else, the expert is expected to be impartial. It is not the role of the expert to act as an advocate for any party. Indeed, physicians in many provinces are required to formally acknowledge that their duty of impartial assistance to the court prevails over any obligation owed to any party in the legal proceedings.
There is no obligation on a physician to act as an expert at the request of legal counsel for the patient/plaintiff or defendant in a legal action; physicians are free to do so as a matter of choice. That said, the CMPA supports the view of the Canadian Medical Association (CMA), as stated in its Code of Ethics and Professionalism, that physicians should “support the profession’s responsibility to act in matters relating to…judicial testimony.”40
Physicians asked to act as an expert must honestly self-evaluate whether they are appropriately qualified to provide the necessary opinion in the circumstances of that case. The potential expert may feel that another physician of greater or different experience, or another specialty, is more suitable to assess the work of the defendant physician. However, the expert must be experienced in the same specialty and practice as the defendant physician on whose care they are opining. Physicians should not believe that only leading specialists are qualified to act as experts. In fact, an experienced family physician is best qualified to speak of the work of another family physician.
The expert must be guided by personal experience and what is perceived to be the usual or acceptable practice of colleagues in similar circumstances. Careful consideration must also be given to the education, experience, and other qualifications of the defendant physician, as well as to the equipment, facilities, and other resources that were available. The expert should ask whether the complication or result may have happened to any other physician even when being reasonably careful. If so, the defendant physician should not be considered to have been in breach of the appropriate duty of care toward the patient.
Experts must ensure the work of the defendant physician is assessed according to the standards of practice applicable at the time of the event. Standards of practice change quickly, and a physician’s care should not be evaluated in the light of a subsequent practice standard.
Experts should also avoid applying unrealistic standards that physicians are generally unable to adhere to in all cases.
The most common reason for unrealistic expert opinion appears to relate to the failure of many experts to understand their role in the legal process. It bears repeating that the function of the expert is to impartially advise the court as to the proper standard of care against which the defendant physician is to be judged. The standard is not one of excellence or perfection, but is rather the level of care and skill that could reasonably be expected of a physician with similar training and in similar circumstances to those of the defendant physician.
Treating physicians as experts
On occasion, the treating physician may also be requested to act as an expert to provide an opinion beyond the care and management of the patient that relates more to medico-legal issues. There is no obligation to act as an expert in this expanded capacity. It is solely the physician’s own personal choice and professional judgment whether to accept such a retainer.
However, treating physicians are under a professional obligation to provide copies of a patient’s records and, if requested, a report about the care and management of the patient. While generally factual in nature and addressing clinical observations, diagnosis, and treatment given, the physician could choose to include comments and opinions about the underlying cause of the patient’s medical condition and the clinical prognosis. Treating physicians are also often called to give evidence in legal proceedings as fact witnesses.
The expert report
Physicians assuming the role of an expert should ensure that legal counsel has provided all the relevant documents for review so the physician is aware of all of the pertinent facts and issues on which to base an opinion. These documents should include the legal pleadings, all relevant medical records of the patient’s treatment, transcripts of the evidence from examinations for discovery, and, where appropriate, the reports of other experts. The expert should always pay careful attention to, and follow the directions of, the instructing legal counsel and ensure the parameters of the opinion requested are well understood.
Experts should raise with the instructing lawyer, at the outset, the issue of payment for reviewing documents and preparing the expert report. This discussion should extend to the time the expert might be required to devote to prepare for an attendance at any trial of the action. Following this discussion, the expert might write to the instructing lawyer setting out the terms and conditions of the retainer and the payment arrangements.
Most legal counsel find it helpful if experts organize their report using key headings where possible, for example:
- Address the report to the lawyer or individual who requested it, never “To whom it may concern.”
- Refer to the purpose of the report (e.g. to answer questions about an individual’s current medical condition or to review the care provided by a physician).
- State your qualifications and experience. Your CV will typically be appended to your report, though a summary within the report may be helpful or required.
- Include other required information that some jurisdictions mandate experts include in their reports (e.g. acknowledgement of duty to provide opinion evidence for the court that is fair, objective, non-partisan, and related only to matters that are within the expert’s area of expertise). Contact the retaining lawyer if you are unsure about those obligations.
- Specify the documentation that was reviewed in preparing the report, including photographs, diagrams, calculations, and other research.
- Outline the relevant patient history.
- State any assumptions used in preparing the report.
- Describe any medical examination or functional inquiry you conducted and the date of such examination or inquiry.
- Do not discuss fees in the report. This should be the subject of separate correspondence with legal counsel.
- Summarize and conclude. Provide a summary of your response on the specific issues on which you were asked to comment. For long reports, consider also including an executive summary.
Experts should also check with their College for policies and statements it may have on the preparation of medico-legal reports.
Guidelines for giving evidence
A physician summoned or subpoenaed to give evidence in legal proceedings, including those in any court or before any board or tribunal, must answer all questions asked when under oath. Only communications between lawyers and their clients are fully privileged and protected from disclosure, even in court.
A physician who refuses to answer questions asked under oath may be held in contempt of court and fined or even sent to jail. The courts do have some discretion, however, particularly in the areas of mental health and family relations, to excuse a physician from answering questions where the potential harm caused by the disclosure of the confidential medical information may be greater than any benefit to be gained by such disclosure.
Often physicians will be asked to give evidence as the attending physician who has first-hand factual information about the care and management of the patient. Generally, such witnesses should not be asked questions intending to solicit an opinion about the work of others. If physicians are called to give evidence as experts, their testimony will be expected to include an opinion on issues relating to the standard of care and causation.
The following are some guidelines for treating physicians and physicians acting as experts to consider prior to and while testifying:
- Review the report(s) you prepared, which may have been done several years before you actually testify.
- Review any relevant reports or records beforehand and be familiar with them. This includes the relevant literature that is cited in your report or in the reports of other experts.
- Confirm with counsel the exact date, time, and place you will be required to attend to give evidence and what records or other material you should bring with you.
- Arrive at the hearing at the assigned time, if not before, and dress in business attire.
- Refrain from speaking when an exchange takes place between counsel and the court (or arbitrator, board, etc.). An objection or motion may have been made, and you should remain quiet until the judge, arbitrator, or board member either overrules or sustains the objection, or allows or denies the motion. Once that determination has been made, you will be directed to continue.
- At all times, remain objective, calm, and polite. Avoid being unnecessarily defensive. Do not let the tone or the nature of the question influence the manner in which you respond. If you disagree with a proposition being put to you, then make your disagreement known and briefly explain why.
- Ensure you understand what is being asked before you attempt to answer. Do not hesitate to for the question be repeated or rephrased. If you do not know the answer, simply say so. Take the necessary time to reflect upon your answer.
- Speak clearly, slowly, and loudly enough for all to hear you. If it is helpful, refer to records or diagrams. Use plain language and avoid overly complex medical jargon. Where medical terms are useful or unavoidable, explain them clearly.
- Answer questions honestly and completely, yet succinctly. Avoid exaggerating, embellishing, or discussing matters beyond the parameters of the question you have been asked.
These guidelines are, of necessity, quite general. If physicians have questions about the procedure or the facts of any case, they should raise their concerns with legal counsel well in advance of being called to give evidence.
From time to time, physicians practising in Canada are called on to provide professional services to patients who are not ordinarily resident in Canada. Many such patients are visitors or tourists who are in need of urgent or emergent care. At an increasing rate, however, these are individuals, mostly United States residents, who have travelled to Canada specifically to receive medical care and attention.
Non-resident patients who may be dissatisfied with the professional medical services they received in Canada may consider bringing a medico-legal action against the Canadian physician. In some cases, they may try to have the action launched in the foreign territory where they reside. An issue will then arise as to whether the foreign court should accept jurisdiction or defer it so the action must be brought in Canada. The more it appears that (1) a non-resident was encouraged or invited to attend in Canada for medical care or attention, (2) arrangements for such care or treatment were made while the patient was in the foreign jurisdiction, (3) the care or treatment provided was elective, or (4) foreign funding was involved—the greater the likelihood the foreign court will permit the legal action to proceed in that jurisdiction.
Canadian physicians who treat non-resident patients in Canada may take steps to increase the likelihood of any subsequent medico-legal actions being brought in Canada. Physicians can do this by requiring that those patients formally submit to the jurisdiction and law of the province in which the care or treatment is given.
Before treating non-resident patients (with the exception of emergency cases), all physicians should make reasonable efforts, in the circumstances, to have those patients sign the Governing Law and Jurisdiction Agreement.41 There are occasional revisions to the form; when this occurs, CMPA members are advised.
Obtaining a patient’s signature on this form is not an ironclad guarantee of preventing legal action in a foreign jurisdiction, but remains a powerful argument in successfully restoring jurisdiction to Canada.
If a patient refuses to sign the form, physicians put themselves at risk if they carry the professional relationship any further.
For more information on this topic, refer to the CMPA article “Treating non-residents of Canada.”42
Medico-legal principles and duties
Negligence, civil responsibility, and the standard of care
It has often been said that medicine is not an exact science and that a physician does not guarantee satisfactory results or the patient’s renewed good health. Untoward results may occur in medical procedures even when the highest degree of skill and care has been applied. Taking for granted that the law does not demand perfection, what standard of care must a physician exercise in order not to be considered negligent?
Consistently over the years, the majority of medico-legal actions brought against physicians have been based on a claim for negligence or civil responsibility. Allegations of negligence or civil responsibility extend not only to acts the physician is said to have committed in error, but also to steps it is suggested the physician should have taken but failed to take. Indeed, this latter category, the alleged omission on the part of the physician, constitutes the bulk of claims for negligence or civil responsibility.
In jurisdictions subject to common law (all provinces and territories except Québec), four elements must be established or proven for any legal action based on a claim for negligence to be successful:
- There must be a duty of care owed to the patient.
- There must be a breach of that duty of care.
- The patient must have suffered some harm or injury.
- The breach of the duty of care must have caused the harm or injury.
In Québec, the elements required to evaluate the liability are derived from different sources, but the issues to be decided by the court are similar.
Duty of care
In common law jurisdictions, it is established that the duty of care imposed on a physician arises from the physician-patient relationship. In Québec, this duty arises from the principles of general civil liability. Accepting a patient creates a duty (an obligation) to attend upon the patient as the situation requires and as circumstances reasonably permit. The physician also has an obligation to make a diagnosis and to advise the patient of it. While this may seem onerous, the physician is not expected to be correct every time, but rather is merely expected to exercise reasonable care, skill, and judgment in arriving at a diagnosis. It is important to caution, however, that due consideration be given to appropriate differential diagnoses when warranted.
Another duty imposed by the physician-patient relationship requires the physician to treat the patient in accordance with the current and accepted standards of practice. Further, the physician has an obligation to refer the patient or to obtain a consultation when unable to diagnose the patient’s condition, when the patient is not responding to treatment, or when the required treatment is beyond the competence or experience of the physician. In the same vein, referral or coverage arrangements must be made when the physician will not be available to continue to treat the patient. There is also a duty on physicians to adequately instruct patients about both active treatment and follow-up care. This applies to return appointments and referrals for laboratory tests or consultations, and also to clinical signs and symptoms that might signal a complication requiring the patient to seek immediate medical care. While the duty of care includes an obligation to treat the patient and act in their best interests, this does not mean that the physician has a duty to provide whatever treatment the patient requests.
Breach of duty
In determining whether a physician has breached a duty of care toward a patient, the courts consider the standard of care and skill that might reasonably have been applied by a colleague in similar circumstances. In this regard, the Ontario Court of Appeal has stated that:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and, if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.43
The appropriate measure is therefore reasonableness and not a standard of perfection. The courts have also recognized that it is easy to be wise in hindsight, therefore they must guard against judging a physician in retrospect. In addition, legal actions often take years to arrive at trial and medical standards may change in the interim. It is important that the appropriate standard be determined with reference to the circumstances and the reasonable standard of care that existed at the time of the alleged negligence. The court ascertains this reasonable standard by means of expert evidence at trial.
Given that the physician is judged according to the standards ordinarily met by physicians of similar training and experience, it should not be surprising that any alleged breach of duty might be refuted where evidence establishes that the physician’s conduct was in conformity with the practice of colleagues.44 A successful defence might also be expected where there are alternative approaches available and the care and treatment provided were in keeping with what might have been provided by at least a respectable minority of competent physicians in the field.
Physicians are not in breach of their duty toward a patient simply because they committed an honest error of judgment after a careful examination and thoughtful analysis of a patient’s condition. Courts distinguish an error of judgment from an act of unskillfulness or carelessness due to a lack of knowledge.45 As stated by Lord Denning (1899 – 1999), a highly-regarded British judge:
It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. We cannot take the benefits without taking the risks.46
Harm or injury
To establish negligence or civil responsibility, it is not enough for the patient to merely demonstrate that the physician has breached a duty of care toward the patient. It must also be demonstrated that the patient has suffered some harm or injury. Although this harm is often physical, courts will also award damages for psychological harm as long as the plaintiff can demonstrate that they suffer from a foreseeable, serious, and prolonged mental injury that “rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”47
Many occasions arise in medical practice when a breach of the standard of care occurs, but fortunately no adverse result is suffered. An example might be a fracture that is perhaps missed at the time of the initial review of the X-ray, but is later detected before any harm resulted to the patient.
The patient must also establish that there is a relationship, or “causal connection,” between the alleged breach of duty and the stated harm or injury. This issue often becomes the crux of a legal action.
The Supreme Court of Canada has affirmed that in professional liability cases the plaintiff must establish, on a balance of probabilities, that “but for” the alleged breach of the standard of care, the injury or complication complained about would not have occurred”48 The Supreme Court has stated, however, that the “but for” test must be applied in a “robust and common sense fashion” such that evidence connecting the breach of duty to the injury suffered may permit the judge to infer that the defendant’s negligence probably caused the loss.49
On occasion, the plaintiff may be unable to establish a probable causal connection between an alleged breach of duty and a complication sustained, as there may be other factors that could also have caused or contributed to the same result and for which the physician could not be faulted. The Supreme Court of Canada has held that where such multiple factors are distinct and separate, such that each factor on its own was sufficient to cause the injury, the plaintiff must still attempt to comply with the traditional requirement to establish, on a balance of probability, that “but for” the physician’s breach of duty, the plaintiff would not have sustained injury.50 The Court has held, however, that in rare cases where the plaintiff would otherwise be unjustly deprived of a remedy by reason of the inability to establish direct causation, the plaintiff might succeed by establishing that the physician’s breach of the standard of care “materially contributed” to the injury.51 Such situations will hopefully be rare and we instead will continue to see the traditional “but for” test for causation used in the majority of medico-legal actions.
There is a well-established legal principle that “every human being of adult years and [of] sound mind has a right to determine what shall be done with his [or her] own body.”52 This general principle is similar to that of the “inviolability and integrity of the person” under civil law.53 Therefore, subject to certain exceptions, such as an emergency or a court order, a physician must obtain a valid and informed consent before any treatment is administered to a patient.
An emergency nullifying the requirement to obtain consent only exists where the patient is unable to consent to treatment and no substitute decision-maker is readily available, there is imminent and serious danger to the life or health of the patient, and it is necessary to proceed immediately to treat the patient in order to save the patient’s life or preserve their health. The preferences or needs of the physicians, the healthcare team, and the hospital, however, must not be determining factors in deciding whether a proposed treatment is urgent.
Consent plays such a major role in the physician-patient relationship that the CMPA has a handbook offering an overview of the law of consent as it pertains to medical management: Consent: A guide for Canadian physicians.54
The law on consent continually evolves through the court decisions and legislation enacted by the provinces or territories. The following suggestions may help physicians meet the current legal standards applicable to the law of consent:
- Discuss with the patient the nature and anticipated effect of the proposed treatment or investigation, including the significant risks and available alternatives.
- Give the patient the opportunity to ask questions.
- Tell the patient about the consequences of leaving the ailment untreated or not undergoing the treatment or investigation. Although there should be no appearance of coercion by unduly frightening patients who refuse to consent, the courts now recognize there is a positive obligation to inform patients about the potential consequences of their refusal.
- Be alert to and deal with each patient’s concerns about the proposed treatment or investigation. It must be remembered that any patient’s special circumstances might require disclosure of potential although uncommon hazards of the treatment or investigation when ordinarily these might not seem relevant. Courts have made it clear that the duty of disclosure extends to what the physician knows or should know the particular patient deems relevant to a decision whether or not to undergo treatment.
- Exercise caution in proceeding with the investigation or treatment if the patient waives all explanations, has no questions, and may be prepared to submit to the treatment or investigation whatever the risks.
An individual who is able to understand the nature and anticipated effect of proposed treatment and available alternatives, including the consequences of no treatment, is competent to give valid consent.
It is well accepted that minors and persons with cognitive impairment or a mental disability may still have sufficient capacity to give valid consent to medical treatment. Again, it depends on whether the patient is able to adequately appreciate the nature of the proposed treatment, its anticipated effect, and the alternatives. Therefore, many individuals who have not yet reached the age of majority, or who are cognitively impaired or mentally disabled, may be capable of controlling and directing their own medical care, including the right to refuse treatment.
Capacity to consent to treatment is generally both time and treatment specific. A person may be incapable with respect to some treatments and capable with respect to others. Further, a person may be incapable with respect to a treatment at one time and capable at another. Physicians should, therefore, continuously and separately evaluate whether a patient is capable of consenting to treatment.
There is legislation in several provinces and territories that provides a means to obtain substitute consent when the patient is incapable of giving valid consent by reason of immaturity, cognitive impairment, or mental disability. Typically such legislation sets out and ranks a list of individuals, usually family members, who are authorized to give or refuse consent to treatment on behalf of an incapable person. These substitute decision-makers must act in compliance with any prior expressed wishes of the patient, or in the absence of expressed wishes, in accordance with the best interests of the patient.
In most provinces and territories, legislation specifically empowers a patient to execute an advance directive as to future care in the event the patient later becomes incapacitated or unable to communicate their wishes. An advance directive may contain explicit instructions about consent or refusal of treatment in specified circumstances, and is sometimes referred to as a “living will.”
At this time, a substitute decision-maker cannot consent to medical assistance in dying (MAID) on behalf of an incapable patient, including a minor or incapable adult. Further, in limited circumstances, a patient can waive the requirement that their consent to MAID be confirmed at the time it is administered. Patients who meet all eligibility criteria and safeguards for MAID and for whom natural death is reasonably foreseeable may make advance arrangements in writing with their medical or nurse practitioner before losing capacity. The advance agreement will be invalided if the person subsequently refuses or demonstrates resistance to MAID in their words, sounds, or gestures.
Age of majority
All jurisdictions have enacted legislation to establish an age of majority. In British Columbia, New Brunswick, Nova Scotia, Newfoundland and Labrador, and the territories, that age is 19 years. In the remaining provinces, the age of majority is 18 years.55
It was once thought that patients had to reach the age of majority before they could give proper consent to treatment. In more recent years, the patient’s ability to comprehend explanations given, rather than the chronological age, has become the important determinant in obtaining valid consent from young people. It is now widely recognized that the concept of maturity has replaced chronological age. This subject is explored in the CMPA handbook Consent: A guide for Canadian physicians. The Civil Code of Québec generally establishes the age of consent at 14 years, below which the consent of the parent or guardian, or of the court, is necessary for the purposes of proposed treatment.56
Reproductive issues in the patient who is mentally incapable
Physicians may occasionally have a patient who is mentally incapable and has reproductive issues, such as difficulty effectively using birth control or difficulty managing menstrual periods. The patient’s substitute decision-maker may request a different form of birth control that is easier to manage, or that a hysterectomy, tubal ligation, or vasectomy be performed.
The ethical and legal issues that arise in these circumstances are challenging. Generally, a substitute decision-maker has the authority to consent to treatment for a patient who is incapable, if doing so is in the patient’s best interests and for a therapeutic purpose.
However, care must be taken when considering non-therapeutic sterilization of a patient who is mentally incapable. Following a Supreme Court of Canada decision in Re Eve57 declaring that sterilization should never be authorized to be carried out on mentally incapable persons for non-therapeutic purposes, many provinces and territories enacted legislation addressing the specific issue of non-therapeutic sterilization, either prohibiting it or allowing it subject only to court order or an advance directive.58
The Supreme Court emphasized that utmost caution must be exercised in deciding when therapeutic sterilization procedures might be appropriate for mentally incapable persons, even for medical reasons. 59 When medical benefits are marginal, they must be weighed carefully against what is seen as a serious intrusion on the physical and mental integrity of the patient who is mentally incapable.
The Court referred to a case in British Columbia where a hysterectomy was ordered to be performed on a child who was seriously mentally incapable because the child’s phobic aversion to blood might seriously affect her when menstruation began.60 The Supreme Court of Canada noted that this case was “at best dangerously close to the limits” in justifying a therapeutic sterilization.
In the later Saskatchewan case of Re H,61 a patient with a mental disability suffered significant distress and physical discomfort as a result of menstruation. Her parents applied for an order to perform an endometrial ablation to treat her menstruation, as well as a tubal ligation to eliminate any potential for pregnancy. The court applied the principles in Re Eve and refused to authorize the tubal ligation on the ground that it had no therapeutic purpose. However, the court ordered the performance of the endometrial ablation on the basis that "its primary object is treatment and sterilization is only a secondary side effect."
It is wise for physicians to carefully consider the therapeutic benefits of the procedure contemplated for patients with a mental disability. If asked to sterilize a person who is mentally incapable, physicians are counselled to consult with a mental health professional to assess the capacity of the patient, including the prognosis, and in questionable cases concerning therapeutic benefits, to consult with a colleague. It is very important to consider reasonable alternative treatments, and to document and record all these discussions, considerations, and consultations so the rationale for the procedure can be confirmed at a later date.
Refusal of treatment
It is a basic principle of medical practice that physicians may do nothing to or for a patient without valid consent. In particular, doctors cannot substitute their will for that of patients despite the best of intentions or the reasonableness of the proposed treatment. It has also been generally accepted that a person of sound mind has the right to refuse treatment even though refusal may well lead to an avoidable death. It has even been suggested that the right of a patient who is competent to refuse treatment may well be protected by the Canadian Charter of Rights and Freedoms.62
An Ontario case, affirmed on appeal, dealt with circumstances where the doctor administered blood transfusions to an unconscious adult Jehovah’s Witness who carried a card prohibiting blood transfusion.63 The physician considered the transfusions necessary to save the patient’s life. The court held that the physician should have respected the wishes of the patient as affirmed by the family members in attendance at the time.
While recognizing an individual's right to refuse, physicians must at the same time explain the consequences of the refusal without creating a perception of coercion in seeking consent. Refusal of the recommended treatment does not necessarily constitute refusal for all treatments. Reasonable alternatives should be explained and offered to the patient. As when documenting the consent discussion, notes should be made about a patient's refusal to accept recommended treatment. Such notes will have evidentiary value if there is any controversy later about why treatment was not given.
It is clear, however, that parents do not have the authority to refuse needed treatment on behalf of their children. Provincial and territorial child welfare legislation generally defines a child to be in need of protection to include situations when the parent or person having charge of the child refuses to consent to medical treatment required to cure, prevent, or alleviate physical harm or suffering on the part of the child. The procedure in such instances is to report the situation to the child welfare authorities who will then arrange for a hearing to have the child declared in need of protection and placed in their custody so they might consent to the proposed treatment over the objections of the parents, or to obtain authorization from the court.
It is of interest that in other cases, the courts have upheld parental or a mature minor’s refusal to consent to chemotherapy that may have had limited success in prolonging the life of their child.64
It is the traditional role, even legal duty, of physicians to provide medical care and treatment to patients. However, the medical profession accepts that there are conditions of ill health and of impending inevitable death for which continued treatment might be considered entirely inappropriate. Generally, physicians have no legal duty to provide treatment that will offer no prospect of therapeutic benefit for the patient.
The experience of many physicians, however, is that these treatment decisions become particularly difficult in the context of end-of-life care, as ethical factors and clinical judgment often collide with the wishes of patients or their families. Indeed, it is not uncommon for controversy to arise in situations where a physician believes a certain treatment should be withheld or withdrawn on the basis of medical futility, yet the patient, family members, or substitute decision-maker (SDM) demand such treatment. These situations usually arise when the attending physicians are of the opinion that continued attempts to treat the terminal patient would be completely ineffective and therefore life-sustaining treatment should be withheld or withdrawn.
Withholding of medical treatment: Do-not-resuscitate (DNR) orders
In cases where a physician believes resuscitation of patients would be futile and not in their best interests, the physician may exercise clinical judgment and determine that a do-not-resuscitate order should be made. The question remains as to whether consent should first be obtained from the patient or SDM.
Recent case law in Ontario confirms that consent is not required for a physician to write a do-not-resuscitate order. In Livingstone,65 the daughter and SDM of a patient who died shortly after physicians issued a DNR order commenced an action against the physicians, alleging they were negligent in the care provided to her father. The physicians had determined that the patient was close to death and would not benefit from CPR. Accordingly, they issued a DNR order, but were unsuccessful in contacting the SDM to advise her.
The court found no breach of standard of care in the defendants’ assessment of the patient or exercise of clinical judgment in issuing DNR order. The court also found that the SDM's consent was not required, as the decisions did not constitute “treatment” under Ontario’s Health Care Consent Act. The court held that the SDM had no right to compel physicians to offer or administer treatment deemed medically inappropriate or contrary to the standard of care. The court finally noted that the physicians did not owe the SDM a duty of care.
This decision confirms that physicians (at least in Ontario) do not legally require consent to write DNR orders. Unfortunately, the College of Physicians and Surgeons of Ontario (CPSO) policy on Planning for and Providing End-of-Life Care66 is currently inconsistent with this decision and requires physicians to inform patients and/or substitute decision-makers that a DNR order will be written and the reasons for that order. It is unclear whether the courts or regulatory authorities in other Canadian jurisdictions would take the same position as the court in Livingstone. It may, therefore, still be prudent before writing a DNR order to discuss with the patient or SDM, when possible, the physician’s decision not to offer CPR where the physician believes it would not benefit the patient.
It is also important that the basis of any decision to issue a DNR order not be, or even be seen to be, arbitrary. The reasoning and criteria to be applied by the physician should be sufficiently firm and clear so any decision can be effectively supported should it later be subject to question. While there need not be unanimity among colleagues, there must be at least a substantial body of opinion in the medical profession that would support both the reasoning and criteria applied and the decision made by the physician. Where appropriate, it is prudent for the attending physician to consult with colleagues for support of the DNR order. Hospitals and health authorities often have policies on DNR orders that should be considered.
When consensus is not achieved despite these discussions, it is helpful for physicians to be able to turn to internal conflict resolution mechanisms that are provided for in the hospital, healthcare facility, and/or health authority’s policy. Physicians are also encouraged to contact the CMPA when there is a disagreement on recommended end-of-life treatment decisions.
Withdrawal of medical treatment
Canadian courts have long recognized the rights of patients to refuse medical treatment or demand that treatment be withdrawn or discontinued after it has been commenced. This right exists even if the withdrawal or refusal of treatment may result in death.
It is less clear, however, whether physicians can unilaterally withdraw life-sustaining treatment without the consent of either the patient or their SDM in circumstances where medical treatment has become futile.
Where conflict arises in respect of these complex decisions, physicians should attempt to reach some form of consensus with the patient or SDM about the goals of continued treatment and what is likely to be achieved. The hospital or health authority may have relevant policies to guide this process, which should be consulted. Physicians should also be familiar with the recommendation and requirements contained in any relevant College policies regarding end-of-life care.
Often these discussions may include religious and other family advisors, as well as involvement and consultation with physician colleagues. In those rare circumstances where consensus is still not achieved, it may well be necessary to make an application to the court (or another administrative body such as the Consent and Capacity Board in Ontario67 ) for directions.
The 2013 Supreme Court of Canada decision in the case of Cuthbertson v. Rasouli clarifies the law in Ontario on whether physicians need consent to withdraw life-sustaining treatment that they believe has no medical benefit for a patient.68 In Rasouli , the patient’s SDM refused to consent to the withdrawal of life support recommended by her husband’s treating physicians. She obtained a court order which specified that withdrawal of life support was “treatment” as defined by the Ontario Health Care Consent Act69 and consent was, therefore, required before physicians could withdraw life support. The decision was upheld by the Ontario Court of Appeal and later by the Supreme Court of Canada. In making its decision, the Supreme Court clarified that when the patient’s SDM and physician(s) disagree on whether to discontinue life support, the physician may challenge the decision of the substitute decision-maker by applying to the Consent and Capacity Board.70 The Ontario Court of Appeal has since ruled that the situation is different where the patient is pronounced neurologically dead and the treatment is no longer life-sustaining.71 In these cases, consent may not be required to withdraw life support.
It is important to emphasize that these cases were decided strictly on an interpretation of Ontario legislation and their particular facts. The effect of these decisions on consent for withdrawal of treatment is, therefore, uncertain at this time in those provinces and territories that do not have comparable legislation.
In every case, members are encouraged to contact the CMPA for specific advice whenever there is a disagreement with a patient, family member, or substitute decision-maker about recommended treatment decisions for end-of-life care.
Medical assistance in dying
In its February 6, 2015 decision in Carter v. Canada , the Supreme Court of Canada struck down as unconstitutional the criminal prohibition on physician-assisted dying to the extent that it prevents physician-assisted death for adult patients who are mentally competent, and clearly consent and suffer from an irremediable medical condition that is intolerable.72 In particular the Court set out the following test:
The Criminal Code prohibitions on physician-assisted dying] unjustifiably infringe s. 7 of the Charter and are no force or effect to the extent that they prohibit physician-assisted death for a person who is a competent adult that (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.73
On June 17, 2016, amendments to the Criminal Code came into force rendering medical assistance in dying (MAID) legal in Canada provided certain conditions are met.74 Further amendments to the Criminal Code75 came into force on March 17, 2021 in response to Québec’s Superior Court decision that invalidated the requirement that a patient’s death be reasonably foreseeable to be eligible to MAID76 . The Criminal Code now provides an exception to the criminal prohibition against assistance in dying for individuals who meet all of the following requirements:
- are eligible for health services funded by a government in Canada
- are at least 18 years of age and capable of making decisions about their health
- have a grievous and irremediable medical condition
- have made a voluntary request for MAID
- provide informed consent
Individuals have a “grievous and irremediable medical condition” if they have a serious and incurable illness, disease, or disability; are in an advanced state of irreversible decline in capability; and their condition causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable. Currently, a mental illness is not considered an illness, disease, or disability for the purpose of eligibility to MAID. This exclusion applies at least until March 17, 2023. In the meantime, the government will conduct an independent review with respect to protocols, guidance, and safeguards to put in place for requests for MAID by persons who have a mental illness. In those circumstances, only a medical practitioner or nurse practitioner can provide assistance in dying.
The Criminal Code also provides for a number of safeguards, which differ depending on whether or not natural death has become reasonably foreseeable. The safeguards include the requirement that the request be made in writing, signed, and dated by the patient before an independent witness, that another independent medical or nurse practitioner has provided a written opinion confirming that the patient meets all of the eligibility criteria, and that the patient has been given the opportunity to withdraw the request.
Where natural death is not reasonably foreseeable, the following additional safeguards apply:
- If neither the MAID assessor nor the provider have expertise in the condition causing the patient’s suffering, a nurse or medical practitioner with that expertise must be consulted.
- Both MAID practitioners must discuss with the patient reasonable and available means to relieve the suffering. Where appropriate, the patient must be offered the opportunity to consult with relevant professionals, such as counselling services, mental health and disability support services, community services, and palliative care.
- There must be an assessment period of 90 clear days, which may be shortened if both MAID practitioners are of the opinion that the patient will lose capacity imminently.
- The patient must expressly confirm consent to MAID immediately before MAID is provided.
Further safeguards have also been adopted with respect to the self-administration of MAID, the waiver of the final consent to MAID where natural death is reasonably foreseeable, and reporting obligations. Provincial legislation, and College, hospital, and health authority policies may supplement the safeguards provided in the Criminal Code.
In Québec, legislation addressing end-of-life care, including MAID in specific circumstances, came into effect on December 10, 2015.77 The Québec end-of-life legislation has its own eligibility criteria and safeguards, but these are similar to those set out in the Criminal Code. Helpful guidelines on end-of-life care were also issued by the College in Québec.78 Notable differences are that under the Québec legislation, only physicians (and not nurse practitioners) can administer aid in dying, and it is not possible for a physician to prescribe the medication to be self-administered by the patient. There is also uncertainty in Québec about the harmonization of the provincial and federal legislation with respect to the possibility of waiving the final consent to MAID.
Given the emergent nature and evolving legal landscape surrounding medical assistance in dying, physicians are encouraged to contact the Association for advice when receiving requests from patients seeking this care.
Informed discharge or duty to instruct
Although not strictly an element of the pre-operative consent process, the courts have elaborated on the duty or obligation of physicians to properly inform patients in the post-operative or post-discharge period. Thus, a physician must conduct a full discussion with a patient of the post-treatment risks or complications, even statistically remote ones that are of a serious nature. Physicians are expected to give their patients sufficient and reasonable information about clinical signs and symptoms that may indicate the need for immediate treatment such that the patient will know to visit the physician or return to the hospital or facility.
Confidentiality and privacy
Communications between a patient and a physician are confidential and private, and they must be protected against improper disclosure. Physicians are, therefore, under restraint not to volunteer information about the condition of their patients or any professional services provided, without the consent or authorization of the patient or as otherwise may be required or permitted by law.
In addition to the long-standing obligations of confidentiality, a physician must also comply with obligations established under privacy legislation. While the various statutes contain minor differences, privacy legislation governing the collection, use, and disclosure of personal information (including health information) is now applicable in each jurisdiction across Canada. Physicians should be familiar with the privacy legislation applicable in their province or territory and apply it within their type of practice. In some provinces and territories, physicians working in hospitals have different obligations than physicians working in private practice.
The fundamental principle of all privacy legislation is an individual’s right of control over the collection, use, and distribution of their personal information, including health information. Consent is the cornerstone of an individual’s control and, subject to certain legislated exceptions, personal health information should not be collected, used, or disclosed without the individual’s consent. Privacy legislation stipulates when consent must be express, such as when a third party (e.g. police, insurer) has requested access to the patient’s health information in the absence of legal authority (e.g. warrant, court order, statutory right). A patient’s consent must always be informed and voluntary, and may be amended or withdrawn at any time. Typically, minors who are capable of consenting to treatment will also have the capacity to control their personal health information. These minors should understand what information will be released, and to whom, and should be capable of understanding the consequences of disclosing or refusing to disclose their personal health information.
Any improper disclosure of confidential information about a patient renders the physician vulnerable to disciplinary proceedings before the physician’s College and to a complaint to the privacy commissioner, as well as to a potential civil action that may be commenced on behalf of the plaintiff for damages. These complaints or claims most often originate with the inadvertent, even the best-intentioned, release of medical information to another person without proper authorization or legal permission, and from unauthorized access to personal health information stored electronically. Breaches are more of a risk with the use of social media or information technology that is not equipped with adequate safeguards.
Physicians should also familiarize themselves with applicable administrative duties under privacy legislation regarding personal health information management. It may be necessary to designate an employee to act as a privacy officer to monitor compliance with privacy legislation. The privacy officer may also be charged with responding to access and correction requests, as well as complaints. The CMA and some provincial medical associations have excellent toolkits available to assist physicians with privacy compliance. Other service providers also offer resources and tools to support physicians and their clinics’ compliance with privacy requirements, such as Saegis’ Cybersecurity Solution.
Privacy legislation identifies the individuals and entities who have custody and control of personal health information and who are ultimately responsible for ensuring compliance with the various requirements under the legislation. These individuals and entities are most often referred to as custodians or trustees, but the terminology can vary. The identity of the custodian depends on the practice setting and may not always be the treating physician (e.g. where a physician works within a hospital).
Disclosure of personal health information
There are situations where a physician may properly divulge confidential information about a patient. These exceptions are examined below.
A physician may disclose confidential information when authorized or directed by the patient to do so. The physician should obtain the written authorization of the patient when the information to be released may be sensitive in nature or where the information is to be forwarded to a third party such as the patient’s employer or insurer, or legal counsel retained by or on behalf of the patient.
It is particularly important that there be a clear understanding between the physician and the patient about the release of medical information when the patient is being examined at the request of another person, such as a prospective employer or insurer. The patient must understand, and should acknowledge in writing, that a report of the examination will be forwarded to this other party, perhaps without a copy being made available to the patient.
Generally, when a patient seeks treatment, a physician may reasonably assume that implied consent has been provided by the patient for the collection, use, and disclosure of personal health information for the purpose of treatment. Further, unless the individual has expressly withheld or withdrawn consent, it is permissible for the physician to rely upon this implied consent to share the personal health information with other healthcare professionals involved in treating the same injury or illness for the purpose of providing care to the individual.
If circumstances are such that implied consent cannot be reasonably assumed, then physicians are obligated to discuss with their patients the purpose for which their health information is being disclosed to others. Physicians should always obtain and document new and specific consent if they intend to disclose an individual’s health information for any purpose other than that for which the information was first collected.
Serious risk of harm
There are occasions when physicians’ duty to society may outweigh the obligation of physician-patient confidentiality, thereby justifying the voluntary disclosure of information about a patient to the appropriate authority without consent. In a landmark decision, the Supreme Court of Canada confirmed the existence of a public safety exception to physician-patient confidentiality.79 The Court held that, in appropriate circumstances, danger to public safety can provide a justification for the disclosure of privileged or confidential information. Courts are to consider the following factors in determining if physician-patient confidentiality should be displaced:
- There is a clear risk to an identifiable person or group of persons.
- The risk is one of serious bodily harm or death.
- The danger is imminent.
The Supreme Court of Canada stated that these factors will often overlap and vary in importance and significance depending on the circumstances of each case, but they all must be considered. The test appears to be objective. Therefore, the question is whether a reasonable person, given all the facts, would consider the potential danger to be clear, serious, and imminent.80
In this case, the Court was only required to state that disclosure in the public interest is permissible for public safety, and expressly avoided the issue of whether there exists an actual duty to warn. The principle arising out of the decision by the Supreme Court of Canada is also recognized in privacy legislation, which permits physicians to disclose otherwise protected personal health information in order to prevent a risk of serious harm to the health and safety of the individual or others.
There is no legal duty imposed on physicians either under legislation or the common law to alert third parties to a danger posed by a patient. However, if relying upon the permission to warn exception, the disclosure should be strictly limited to information necessary to protect the individual or others. Physicians are encouraged in individual situations to seek specific advice and counsel as to the appropriateness and scope of disclosure of information relevant to this exception.
Search warrants and court orders
Generally, there is no obligation to provide the police with personal health information about a patient suspected of committing a crime. In fact, physicians should generally only respond to police inquiries about a patient if police have obtained a search warrant or court order for the disclosure of the patient’s record. Indeed, physicians and hospital administrators must comply with a search warrant.
There is also no general obligation to report patients suspected of having committed a crime (see the previous “Serious risk of harm” section for an exception to this). Many jurisdictions (British Columbia,81 Alberta,82 Saskatchewan,83 Manitoba,84 Ontario,85 Québec,86 New Brunswick,87 Nova Scotia,88 Newfoundland and Labrador,89 and Northwest Territories90 ) have now enacted legislation requiring all hospitals and healthcare facilities that treat a person for a gunshot wound to disclose that information to the local police service. The legislation may also extend the reporting obligation to stab wounds (e.g. British Columbia,91 Alberta,92 Saskatchewan,93 Manitoba,94 New Brunswick,95 Newfoundland and Labrador,96 and Northwest Territories97 ). Of particular interest, the legislation in Québec98 also permits, but does not oblige, physicians to report to police suspicious behaviour of patients whom they reasonably believe may endanger their own safety or the safety of another person by the use of a firearm. The information to be disclosed should be limited to that which is necessary to facilitate police intervention.
There are statutes in every province and territory as well as federal statutes that require physicians to divulge information obtained through the physician-patient relationship. In many instances where physicians are required to report confidential information to a public authority, they may be prosecuted, fined, or imprisoned for failing to fulfil this statutory obligation.
The most notable examples pertain to the reporting of suspected child abuse, patients who are unfit to drive, and patients suffering from designated diseases, as well as reports to workers’ compensation boards, and the completion of certificates under vital statistics acts.
Most privacy statutes provide other exceptions where personal health information may be collected, used, or disclosed without the individual’s consent. While the exceptions vary, most statutes permit collection, use, and disclosure without consent where the information is required:
- for use in legal proceedings
- to contact an individual’s relatives or next of kin
- to comply with a subpoena or a provision of another statute
- for research purposes
Access to medical records
Several decades before the introduction of privacy legislation, the Supreme Court of Canada ruled that although the medical record maintained by physicians in their private office is, in the physical sense, owned by that physician, the patient had the right to examine and obtain copies of all documents in the physical medical record.99 The Court held that the significant beneficial interest of the patient in the medical record was sufficient to extend the fiduciary duty of the physician to grant the patient direct access to the medical record. The crucial aspects of the judgment are as follows:
- The physical medical records held in a physician’s office are the property of the physician.
- A patient is entitled, upon request, to examine and receive a copy of the complete medical records compiled by the physician in administering advice or treatment to the patient, including records prepared by other physicians that the physician may have received.
- The patient is not entitled to examine or receive copies of any information or material received or compiled by the doctor outside of the physician-patient relationship.
- A patient’s general right of access to medical records is not absolute. Physicians may exercise discretion not to disclose any information they reasonably believe is likely to cause a substantial adverse effect on the physical, mental, or emotional health of the patient or harm to a third party. The Court stated that patients should have access to the medical records in all but a small number of circumstances.
- A patient should have access to the medical record in the ordinary course unless there are compelling reasons for non-disclosure. The onus is on the physician to justify a denial of access to the information or records.
Privacy legislation has now reinforced patients’ common law right of access to personal health information contained in their medical records.
There are limited circumstances where a physician can deny an individual’s request for access, including when disclosure may present a risk of harm to the individual or reveal personal health information about a third party. Under privacy legislation, patients can complain to the privacy commissioner if they feel their access has been unreasonably denied or limited. While a fee may be charged for responding to a patient’s access request, physicians should be aware that the amount of the fee may be governed by statute, regulation, or College guidelines. Physicians should be clear with patients about whether the fee is pre-set and what it is. As well, access should generally not be refused simply because an individual has not paid the fee.
Correction to medical records
Under privacy legislation, patients have the right to require that inaccurate or incomplete factual information contained in their medical records be corrected. However, the professional opinions of treating or consulting physicians are not subject to amendment. In circumstances where corrections are made, physicians should not delete any aspect of the original record. Instead, the corrected information should remain separately accessible in the event of litigation and clearly marked as incorrect with reference to the date of modification. In addition to this being a prudent measure, most privacy legislation also requires this.
Retention of records
Physicians and healthcare institutions are required by law in each province and territory to maintain a medical record for each patient. In most jurisdictions, the legislation specifically details the information to be recorded in the patient’s record. This legislative requirement is premised on the understanding that maintaining complete and accurate medical records is necessary to ensure a consistent treatment plan for the patient. Records are also invaluable to the physician who is the subject of a complaint or civil action by a patient. Because patients usually do not keep concurrent notes of the events, the physician’s notes, if reasonably detailed and made at the time or shortly after each visit, are often considered to be the most accurate and reliable record of a consultation.
This table is a summary, by province and territory, of the minimum legislative requirements or recommendations respecting the retention of records (current to August 2020).
Three columns: Province/Territory, Physicians, Hospitals
||Sixteen years from date of last entry, or the age of majority (19), whichever is the latest.100
||Primary documents*: 10 years from most recent day of discharge.
Secondary documents**: 6 years from date of discharge.
Transitory documents***: 1 year from date of final completion of patient’s record.101
||Ten years following date of last service, or in the case of a minor, 10 years or 2 years past age of majority (18), whichever is longer.102
||Ten years from date of discharge, or 2 years past age of majority (18) if minor; 5 years for X-ray films; where microfilming employed, originals may be destroyed after 1 year.103
||Six years following date of last entry, or 2 years past age of majority (18), or 6 years after date last seen, whichever is later.104
||Ten years from date of discharge, or if minor, until age of majority (19), whichever is longer. Period may be extended as deemed necessary by hospital. Where microfilming employed, paper copy of records must still be retained for 6 years, and microfilm for further 4 years.105
||Ten years following date of last entry, or 10 years past age of majority (18) in case of minor.106
||Each health authority/hospital required to set a retention period.107 Verify with health authority/hospital.
||Ten years after date of last entry, or if minor, until 10 years after patient reaches or would have reached age of majority (18).108 College recommends 15 years from date of last entry, or 15 years after day on which patient reached or would have reached age of majority (18).109
||Ten years from date of last visit, or 10 years past age of majority (18) if minor.
Five years from date record created or 5 years past age of majority (18) for diagnostic imaging records other than of breast.
Ten years from date of record created or 10 years past age of majority for diagnostic imaging records of breast.110
||Five years following date of last entry; any document older than 5 years contained in an active file can be destroyed, with the exception of operative and anesthetic reports for major surgeries, anatomopathology reports and endoscopy reports, which must be kept as long as the file is active.111
||Each establishment/hospital required to set a retention schedule.112 Verify with health authority/hospital.
||Ten years after date of last entry, or 2 years past age of majority (19) if minor, or 2 years after death of patient.113
||Six years after date of discharge, or if minor, for 6 years or until age 21, whichever is longer.114
||Ten years after date of last visit, or 10 years past age of majority (19) if minor.115
||Each health authority/hospital required to set a retention period.116 Verify with health authority/hospital.
|PRINCE EDWARD ISLAND
||Ten years after date of last entry, or 10 years past age of majority (18) if minor.117
||Twenty years following date of discharge, or 5 years from death of patient, or 20 years past age of majority (18) if minor. Five years from date record created or 5 years past age of majority (18) for diagnostic imaging record other than of breast (diagnostic imaging records of breast to be retained for 10 years after creation, or 10 years past the age of majority of a minor).118
|NEWFOUNDLAND AND LABRADOR
||Ten years after date of last entry, or 2 years past age of majority (19), whichever is longer.119
||Each health authority/hospital required to set a retention period.120 Verify with health authority/hospital.
||Not less than 6 years from date of last entry (Medical Professions Act Regulation). Yukon Medical Council (YMC) recommends 7 years, or where minor, later of 2 years past age of majority (19) or 7 years since date last seen.121
||Primary documents*: 10 years from most recent day on which patient discharged.
Secondary documents**: 6 years.
Transitory documents***: the period ending on the day following the final completion of the patient’s medical record by the attending medical practitioner, or by the attending medical practitioner and dentist where both attend.122
||Ten years, or no less than 2 years past age of majority (19).123
||Verify with health authority/hospital.124
||Ten years, or no less than 2 years past age of majority (19).125
||Verify with health authority/hospital.
How long should medical records be kept to ensure their availability in the event of litigation or a complaint by the patient? The most prudent approach is to retain the medical records until the anticipated expiry of the limitation period to commence an action (see “Statutes of limitation” section, above).
Physicians should also be aware of the minimum legislative requirements respecting the retention of medical and hospital records in their province or territory. In the absence of legislative requirements, some jurisdictions have issued recommendations about the retention of records that are considered to adequately protect both patients and physicians.
For medico-legal purposes, the CMPA generally advises that physicians retain their medical records for at least 10 years (16 years in British Columbia) from the date of last entry or at least 10 years (16 years in British Columbia) from the age of majority in the case of minors. For obstetrical care, the CMPA recommends that maternal records (e.g. prenatal and labour and delivery records) be maintained for at least 10 years from the time the infant reaches or would have reached the age of majority.
Once the retention period has expired, records should be destroyed in a manner that maintains confidentiality and privacy. Destruction should ensure that the record cannot be reconstructed in any way. For example, it is recommended that paper records be shredded, pulverized, or incinerated. Effective destruction of electronic records requires that the records be permanently deleted or irreversibly erased. When destroying information, physicians must consider whether it is necessary to destroy the original records and any copies including back-up files. Before destroying records, it is recommended that a list be made of the names of the patients whose records are to be destroyed. This list should be kept permanently in a secure location. The purpose is to be able to later determine at a glance that a medical record has been destroyed and has not simply been lost or misplaced.
When destroying clinical records, physicians should be aware of any specific obligations imposed on them by their College or relevant privacy legislation or privacy commissioner.
Physicians should refer to the CMPA’s Electronic records handbook126 for a more comprehensive overview of the technological and medico-legal issues associated with the access to and implementation, use, retention, and destruction of electronic records.
Increasingly, physicians are relying on virtual care tools to deliver care to their patients. Virtual care may be as basic as a telephone call or may involve video conferencing and other internet-based tools. These tools can be accessed from a number of devices, with mobile tools such as smartphones and tablets seeing the greatest growth.
Physicians who rely on virtual care need to be mindful that they are governed by the same legal and professional standards as would apply in other professional settings (e.g. a hospital, family practice, or clinic). They also need to be aware of and follow the privacy legislation that applies to their practice and jurisdiction, as well as any requirements from their College.
Consideration should be given to security measures and procedures that should be adopted to reduce the risk of privacy breaches. This includes the use of appropriate protection and privacy settings to avoid the unauthorized access to and disclosure of personal health information. Physicians should obtain consent from their patient to use virtual care. Such consent should be obtained following an informed consent discussion regarding the increased privacy risks associated with electronic communications and documented in the patient record, ideally using a signed consent form from the patient. Patients should also be encouraged to take steps to participate in virtual care encounters in a private setting and through the use of their own personal electronic device or computer.
Physicians need to keep abreast of advances and inform themselves about privacy and security issues related to their jurisdiction and practice environment. Physicians should refer to CMPA publications for more detailed information about the privacy and regulatory requirements, as well as medico-legal liability risks associated with electronic communications.
Provincial and territorial legislation plays an important role in medical practice. Here are highlights of some of the most important aspects of such legislation.
Reporting patients unfit to drive
There is a statutory duty in all jurisdictions related to reporting patients unfit to drive. The relevant legislation in Québec,127 and Nova Scotia128 is discretionary such that physicians are permitted to breach confidence and report a patient who they believe may have a medical condition that renders the person unable to operate a motor vehicle.129 Conversely, the legislation in Saskatchewan,130 Manitoba,131 Ontario,132 New Brunswick,133 Prince Edward Island,134 Newfoundland and Labrador,135 and the territories136 is mandatory and requires physicians to report any patient who, in their opinion, has a medical condition that may make it dangerous for the person to drive. Indeed, failure to report in these latter jurisdictions constitutes an offence.
In British Columbia, physicians are required to report only a patient who, in their opinion, has a medical condition that makes it dangerous to drive and the patient continues to drive after being warned of the danger by the physician.137
Physicians have been involved in actions brought on behalf of an injured party in a motor vehicle accident alleged to have been caused in part by the medical disability of another person who should not have been allowed to continue driving. Physicians have been found liable for failing to report, notably in those provinces and territories with mandatory requirements.
It is therefore important for physicians to fulfil their statutory duties in a diligent, yet sensible manner, and report those patients who they believe have a medical condition that might reasonably make it dangerous to drive. In the cases to date, the courts have been greatly influenced by the Canadian Medical Association booklet CMA Driver’s Guide, Determining Medical Fitness to Operate Motor Vehicles.138 Physicians are encouraged to be familiar with and use these guidelines when assessing a patient’s fitness to operate a motor vehicle and in deciding about the need to report a patient.
Reporting child abuse
Every province and territory has enacted legislation requiring physicians to report children in need of protection, including instances of suspected child abuse, to the child welfare authorities or the equivalent in the province and territory. For some jurisdictions, the duty to report child abuse applies to children under 16 years of age, but in Alberta,139 Manitoba140 and Québec141 and Prince Edward Island142 it applies to children under 18 years. The duty to report sexual abuse in Saskatchewan also applies to children under 18 years of age.143 The age is under 19 years in British Columbia,144 Yukon,145 New Brunswick,146 and Nova Scotia147 for all purposes. The duty to report is mandatory even though the information reported may be confidential. Failure to report constitutes an offence. Physicians are protected against legal action for making the required report, provided the report was not made maliciously or without reasonable cause.
The Criminal Code allows for the taking of blood samples in certain situations. The police may require that a person provide a blood sample when they believe, on reasonable and probable grounds, that the person has operated a car, boat, railway equipment, or aircraft while impaired by drugs or alcohol during the preceding 3 hours.148
The Criminal Code also allows a court to require that an offender or a person under a peace bond provide a sample of a bodily substance on the demand of peace officers, probation officers, supervisors, or designated persons. Such orders can be made to enforce compliance with a prohibition on consuming drugs or alcohol imposed in a probation order, a conditional sentence order, or a peace bond.149
In the above instances, the physician is not required or permitted to take a blood sample without the consent of a competent individual. Rather, the individual is obligated to submit to a blood sample. If the individual refuses to comply without reasonable excuse, the individual commits an offence. Physicians should not attempt to obtain a blood sample from a patient in these situations without the patient’s consent.
A blood sample may also be taken from a person suspected of being impaired while operating a car, boat, railway equipment, or aircraft on the basis of a warrant issued by a justice of the peace in appropriate circumstances. These warrants may be issued where the justice of the peace is satisfied there are reasonable grounds to believe the person has been operating the car, train, boat, or aircraft while impaired within the previous 8 hours and was involved in an accident resulting in death or bodily harm to any person. The justice of the peace must also be satisfied on the basis of medical opinion that the person is unable to consent to the taking of the sample by reason of any physical or mental condition, and that taking the sample will not endanger the life or health of the person.150 In these situations, the physician takes the blood sample on the basis of the warrant and not on the basis of consent by the patient.
If physicians are presented with a warrant for a blood sample by a police officer, they are required to obtain and provide the sample unless one or more of the following apply:
- The patient’s condition has changed since the warrant was initially requested, and the person is no longer considered unable to consent by reason of a physical or mental condition.
- The taking of the sample could endanger the person’s health.
- The physician has a "reasonable excuse" for refusing to take the sample.151
Any physician who assists the police in taking a blood sample, either by consent or pursuant to a warrant, is protected from criminal or civil liability for anything necessarily done with reasonable care and skill in taking the sample.152
Mental health legislation — Involuntary admission
There is legislation in all jurisdictions governing mental health that provides specifically for involuntary confinement in, or admission to, a psychiatric facility. Generally, a physician may complete an application for an individual to be conveyed to a psychiatric facility for assessment if the physician has recently (within days) examined the person and the physician is satisfied that the stated criteria warranting such assessment have been met. The legislation further provides that, once at the psychiatric facility, the individual must be examined by one or more psychiatrists, again within a strict time frame, usually measured in hours. If the mental disorder and the appropriate criteria are confirmed, a certificate of involuntary admission is issued. These certificates are usually valid for a number of days and must be renewed periodically following appropriate examinations of the patient. The legislation in some jurisdictions also provides for procedures whereby the patient may apply to a review board to consider if the certificate of involuntary admission or its renewal was proper and necessary.
Generally speaking, the criteria for involuntary admission are very restrictive. Most jurisdictions require that the individual not only suffer from a mental disorder, but also present a danger of self-harm or harm to others. Other provinces have broadened the involuntary admission process by providing alternatives to the harm criterion. Where a patient does not meet the harm criterion, but the attending physician is of the opinion that the patient is likely to suffer deterioration in psychological health without treatment, this deterioration is sufficient to justify the patient’s involuntary admission. For example, the Mental Health Services Act153 in Saskatchewan requires a patient to be suffering from a mental disorder likely to cause harm to the person or others, or to be suffering substantial mental or physical deterioration before being detained as an involuntary patient. British Columbia and Manitoba have enacted similar alternative criteria to involuntary admission.154 Ontario’s Mental Health Act allows for the involuntary admission of patients who have a history of successful treatment and who are at risk of suffering mental deterioration.155
The Canadian Charter of Rights and Freedoms156 has enshrined the security of the person and the right for an individual not to be arbitrarily detained or imprisoned or to be subjected to cruel and unusual treatment. Legislative enactments, in particular the mental health acts, are scrutinized to determine if their involuntary admission provisions, which deprive individuals of their liberty, may be justified in a free and democratic society.
The tendency of the courts is to interpret the legislation strictly. Yet, psychiatry is not an exact science, therefore it can be difficult to form the definite or precise opinion demanded by the criteria in mental health acts before an individual may be subjected to involuntary admission. Physicians should continue to exercise their judgment and opinion honestly and in the best interests of the patient and others. When in doubt as to whether the appropriate criteria have been met for involuntary admission, the physician should seek a consultation with a colleague.
It has been CMPA’s experience that, while the courts have from time to time set aside a certificate of involuntary admission, they have been very reluctant to find liability against the physician who has acted reasonably and in good faith. Physicians should be cautious to not only comply with the requirements and criteria set out in the relevant legislation when certifying a patient for involuntary admission, but also to document the clinical findings and rationale for the certification in the patient record.
Physicians are often asked to provide certificates of medical fitness for their patients in many different settings. Examples include work-related issues, applications for insurance coverage or other benefits, certifying the ability to participate in a specified activity, etc. There is a legal obligation on physicians to complete such certificates for their patients; in fact, most provinces have legislation that makes it an act of professional misconduct to fail to complete them. For example, in Ontario, regulations under the Medicine Act, 1991, contain, as one of the definitions of professional misconduct, the following:
Failing without reasonable cause to provide a report or certificate relating to an examination or treatment performed by the member to the patient or his or her authorized representative within a reasonable time after the patient or his or her authorized representative has requested such a report or certificate.157
It is important for physicians to appreciate that the completion of the certificates for patients is a medical act and therefore invokes all the same legal responsibilities and requirements that apply to medical treatment generally. Physicians must therefore adhere to the appropriate standard of care in completing the medical certificates. In addition, physicians must appreciate that a third party will rely on the representations made by the physician in the medical certificate and therefore any erroneous or unfounded opinion expressed by the physician may be subject to liability related not only to the patient, but also the third party. It is recommended that, when completing medical certificates, physicians keep in mind the intent and purpose of the form, as well as the following:
- The express written consent of the patient should be obtained and care should be taken not to disclose more information than is covered by the patient’s authorization.
- If the medical clearance is to be directed towards some form of employment or leisure activity, the physician should have some knowledge of the particulars of that job or activity.
- The medical record of the patient should be carefully reviewed to ensure that any statements made are, to the best knowledge and belief of the physician, accurate and based upon current clinical information.
- On occasion, it may be necessary to carry out an independent medical evaluation—an examination or assessment of the patient—to obtain the information or to form the belief necessary to complete the certificate.
- Physicians may be requested by patients to complete medical certificates or forms to enable the patient to exercise a right or obtain a benefit pursuant to some federal or provincial legislation. For the most part, physicians should treat these requests in the same manner as for any other medical certificate.
Concern has been expressed regarding the scope of certain medical certificates, particularly in connection with the federal Cannabis Regulations158 and the federal Firearms Act.159 In both instances, the danger is that the medical certificate or form may require physicians to provide an opinion or assessment that may well be outside their knowledge or expertise.
Regulations to access cannabis for medical purposes
The Cannabis Regulations 160 came into force in October 2018, replacing the Access to Cannabis for Medical Purposes Regulations. The regulatory regime for cannabis for medical purposes is largely unchanged under the Cannabis Regulations, which sets out the medical cannabis rules. Physicians should be familiar with the Cannabis Regulations and should know and abide by applicable College policies.
The Cannabis Act161 legalized and regulated cannabis for personal use, and physicians may see changes to their medical practice as a result. Emergency physicians may see an increase in police requests for blood samples from patients suspected of driving while impaired by cannabis. This is because amendments to the Criminal Code make it somewhat easier to demand blood samples and create time pressure to obtain such samples, since blood drug concentration levels can decline rapidly. See the above section, “Blood samples,” regarding the circumstances when it is permissible for physicians to obtain such a sample from a patient. Physicians may also have concerns about interactions with other medications and must consider whether a patient’s cannabis consumption might render them unfit to operate a motor vehicle safely. For further guidance, physicians are encouraged to consult the CMPA article “Clearing the haze: How the legalization of recreational cannabis may affect your medical practice.”
Under the medical cannabis regime in the Cannabis Regulations, a patient must consult with a physician or qualified nurse practitioner and obtain a signed “medical document” authorizing their use of cannabis for medical purposes. Patients then submit the medical document directly to a licensed commercial producer to obtain the medical cannabis, register with Health Canada to produce a limited amount of cannabis for their own medical purposes, designate someone else to produce it for them, or purchase it from authorized provincial or territorial retail outlets or online sales platforms (subject to provincial and territorial age limits). Alternatively, arrangements can be made for the producer to transfer the drug to the healthcare practitioner who signed the medical document, and the patient can obtain it from the healthcare practitioner. Physicians should be aware, however, that many Colleges prohibit or strongly discourage dispensing, providing, or accepting delivery of cannabis for medical purposes. Physicians should consult with their College before agreeing to accept the transfer of cannabis from a licensed producer or seller.
Most Colleges have issued guidelines or policies imposing additional obligations over those set out in the regulations. Although there are some common themes expressed in the College policies and guidelines, there are some notable variances.
Some of the common themes include:
- Physicians are under no obligation to provide patients with a medical document to access the drug.
- Physicians should obtain informed consent before completing the medical document and should record the consent discussion in the medical record.
- Physicians should evaluate the patient’s clinical condition regularly to assess the benefits and risks of cannabis use.
Some of the variations include:
- In Saskatchewan, physicians must obtain a signed, written treatment agreement from patients that spells out the patients’ obligations, including using the cannabis as prescribed.162
- In Alberta, physicians must register with the College as a practitioner authorizing access to medical cannabis.163
- In some provinces, physicians must avoid using telemedicine to complete the medical document.164
Physicians who choose to complete a medical document should always rely on sound medical judgment and comply with their College’s relevant guideline or policy.
Section 5 of the Firearms Act describes the criteria for eligibility to acquire a licence to possess a firearm and includes the factors as to whether the applicant “has been treated for a mental illness ... that was associated with violence or threatened or attempted violence ... against any person; or has a history of behaviour that includes violence or threatened or attempted violence ... against any person.”165 In consideration of these factors, the chief firearms officer is authorized to make inquiry of anyone who may provide relevant information as to whether the applicant is eligible to possess or acquire a firearm. Often this process includes a medical certificate or form that a physician is requested to complete on behalf of a patient who has applied for a firearms licence.
Although there is no statutory format, the certificate or declaration typically includes a question requesting the physician to provide an opinion as to whether the patient has a medical condition or exhibits violent tendencies that should prevent the purchase or possession of firearms. More pointedly, physicians are often asked to provide an opinion as to whether there is a risk to the patient or public safety by the patient having the ability to lawfully possess or purchase firearms. Many physicians may not feel qualified or capable of providing an opinion on these issues, recognizing the reliance that might be placed on the certificate and the potential exposure to liability should the opinion later be found to be unwarranted and harm results to the patient or others. Such physicians should simply decline to provide an opinion in response to these questions. The physician may, however, be able to complete other aspects of the certificate or declaration related to any medical diagnosis or condition of the patient.
For more information, see the CMPA article “Treating physician reports, IME reports, and expert opinions: The way forward.”
Safe medical care
Disclosure and reporting of harm from healthcare delivery
Physicians are encouraged to consult the CMPA handbook Disclosing harm from healthcare delivery: Open and honest communication with patients,166 CMPA Good Practices Disclosure of patient safety incidents, and CMPA eLearning activity Disclosing harm from healthcare delivery. All of these resources provide extensive advice on communicating with patients when an unanticipated poor clinical outcome or patient safety incident has occurred during care.
The CMPA has frequently advises physicians about communicating with patients concerning the disclosure of harm stemming from healthcare delivery. Indeed, physicians have an ethical, professional, and legal obligation to disclose such information to patients. The CMPA generally relies on terminology developed by the World Health Organization (WHO) and promoted by the Canadian Patient Safety Institute (CPSI), which defines a patient safety incident as an event or circumstance which could have resulted, or did result, in unnecessary harm to a patient.167
Disclosure is a process typically requiring several discussions with the patient.
Prior to any disclosure discussion, the patient’s immediate clinical needs should be addressed. The information provided at the initial disclosure discussion should be limited to the known facts at that time, e.g. the clinical information about what has happened and the clinical nature of the patient’s condition as it now exists. Physicians must be sensitive and allow time for the patient to absorb and understand what is being said. Physicians should not speculate or blame. At every disclosure meeting, a statement of being sorry for the circumstances or the condition of the patient is important and appropriate.
If a careful analysis determines the harm was related to system failures or provider performance, an apology should be considered by the organization responsible or the provider responsible. In these circumstances, it is appropriate to acknowledge responsibility for the harm and to apologize. The use of words that express or imply legal responsibility (such as negligence or fault), or reference to failing to meet the standard of care, should be avoided. Legal responsibility is not usually clear, and courts and medical regulatory authorities (Colleges) are mandated to make these complex determinations. This protects patients, providers, and organizations. If practising within a hospital or institution, physicians will also likely have an obligation to report patient safety incidents to a designated person or committee. Most healthcare institutions have policies guiding the reporting of patient safety incidents or near misses.
Disclosing patient safety incidents to patients and reporting such incidents to third parties (e.g. hospital administration or quality improvement committee) are separate and distinct processes. While the disclosure of information to patients is an integral part of individual patient care, the reporting of patient safety incidents is generally part of a much broader quality improvement initiative aimed at identifying and addressing systemic problems in care. The CMPA generally advises physicians to ensure that any reporting takes place under the auspices of a properly constituted quality improvement committee so that the information generated through the quality improvement process will be protected, to the extent possible, from being used in subsequent legal, regulatory, or other proceedings.
The World Health Organization (WHO) provides terminology to facilitate the sharing and learning of patient safety information globally.168 The Canadian Patient Safety Institute has adopted some of these terms.169 To support clarity and consistency in patient safety discussions, the CMPA now uses these terms:
- Patient safety incident: An event or circumstance which could have resulted, or did result, in unnecessary harm to the patient.
- Harmful incident: A patient safety incident that resulted in harm to the patient. Replaces the terms “adverse event” and “sentinel event.”
- No harm incident: A patient safety incident which reached the patient but no discernible harm resulted.
- Near miss: A patient safety incident that did not reach the patient. Replaces the term “close call.”
Terms in Québec
In Québec, the terms “accident” and “incident” are defined in the applicable legislation. Neither term corresponds exactly to the WHO terminology. An “accident” in Quebec means “an action or situation where a risk event occurs which has or could have consequences for the state of health or welfare of the user, a personnel member, an involved professional, or a third person.”170 The term “incident,” on the other hand, is defined as “an action or situation that does not have consequences for the state of health or welfare of a user, a personnel member, an involved professional or a third person, but the outcome of which is unusual and could have had consequences under different circumstances.”171
As the CMPA interprets the Québec legislation, the term “accident” would align with the WHO term “harmful incident” whereas the term “incident” would include the WHO terms “no harm incident” and “near miss.”
Interprofessional (collaborative) care
The provision of healthcare in Canada is increasingly involving interprofessional (collaborative) practice teams. Today’s reality is that physicians are working with—and relying on—other healthcare professionals when treating patients. These other healthcare professionals play a significant and valuable role in the care of patients.
While interprofessional care is an important contributor to improving patient access to healthcare, there are some unique liability risks associated with this type of healthcare model. As discussed in the CMPA handbook Collaborative care: A medical liability perspective,172 these risks can be mitigated by delineating the roles and expectations of each health professional and ensuring all health professionals have adequate liability protection.
The concern over adequate liability protection stems from the potential application of joint and several liability in circumstances where a legal action is commenced by a patient against numerous members of the interprofessional care team. In most Canadian jurisdictions, the principle of joint and several liability permits a plaintiff to pursue any one defendant for the full amount of the award, even though there may be other co-defendants found liable in the action. Although the court may assign fault in varying degrees between the co-defendants, the plaintiff is entitled to seek full recovery of damages from one of those defendants—even if only found to be 1% responsible for the harm caused the patient, for example. It is then up to that defendant to pursue the other defendants for their respective share of the damages awarded to the patient. This concern about joint and several liability is greatly reduced if all of the members of the interprofessional care team have adequate medico-legal protection or insurance. Adequate liability protection also ensures that patients will receive appropriate compensation in the event of a finding of negligence against any single member of the interprofessional care team.
Clearly delineated roles and expectations will also allow the interprofessional care team to effectively and efficiently deliver quality healthcare to patients. Written policies should be established for each member of the team on issues such as the role of each member, documentation and communication between members of the team, responsibility for follow-up care, and ultimate authority on treatment decisions in particular instances. Distinctly defined scopes of practice for each team member will also assist in determining accountabilities within interprofessional care teams.
Scarcity of resources
Resource constraints have long been a reality for Canadian physicians. In the context of crises such as natural disasters and pandemics, these resource shortages are likely to be more pronounced. Courts and Colleges are likely to consider the circumstances when assessing whether a physician met the standard of care, including the resources available at the time. To date, the courts appear more willing to consider the scarcity of resources when evaluating whether the facilities and staffing were reasonable in the circumstances. The courts, however, appear less ready to accept an economic defence to justify withholding treatment or services from a patient for reasons of overall resource or cost containment.
Duty of hospital
Generally speaking, it is the responsibility or duty of hospitals to ensure adequate staffing and co-ordination of personnel and other resources.173 Hospitals will be directly liable to the patient for damages sustained as a result of improper protocols or lack of adequate facilities and paramedical personnel.
The courts have, however, given favourable recognition toward economic realities in making allowances for the scarcity of resources when determining whether the facilities and staffing were adequate under the circumstances. For example, a decision of the New Brunswick Court of Queen’s Bench, affirmed on appeal, held that the “non-availability of trained and experienced personnel, to say nothing of the problems of collateral resource allocation,” were considered when evaluating what community standard was to be expected of the hospital that staffed its emergency department with general practitioners due to the unavailability of emergency physicians.174
Resources were also considered in a Nova Scotia judgment in determining whether the standard of care was met by the hospital.175 In that case, it was stated that a hospital was not negligent in its system of anaesthesia coverage of a cardiovascular intensive care unit. The court, in making this determination, examined the coverage available in other intensive care units in Canada and stated that “no hospital could afford to have anaesthesia residents always at hand, waiting around without other responsibilities until such time as a patient might have occasion to require their services.” This case demonstrates that not only might the fact of scarce resources be considered by a court, but so will the custom in other similar hospitals respecting staffing.
Duty of physicians
Restructuring, funding cutbacks, cost containment, and large-scale crises (e.g. pandemics, natural disasters, or shootings) have resulted in physicians facing the dilemma of being asked to meet the standard of care toward their patients with fewer and often inadequate resources. Once a physician-patient relationship has been established, the physician owes a duty to do what is in the patient’s best interest.
In the event of a choice between a physician’s duty to a patient and that owed to the medical care system, the duty to the patient must prevail. To date, the courts appear unwilling to accept a defence based solely on cost containment to justify withholding treatment or services from a patient. In a British Columbia case relating to the alleged failure of the physicians to have diagnosed the patient’s aneurysm earlier, the court commented:
I understand that there are budgetary problems confronting the health care system….I respectfully say it is something to be considered by those who are responsible for the provision of medical care and those who are responsible for financing it. I also say that if it comes to a choice between a physician’s responsibility to his or her individual patient and his or her responsibility to the medicare system overall, the former must take precedence in a case such as this. The severity of the harm that may occur to the patient who was permitted to go undiagnosed is far greater than the financial harm that will occur to the medicare system if one more CT scan procedure only shows the patient is not suffering from a serious medical condition.176
A similar issue relating to the alleged delay in ordering a CT scan was considered in a case in Newfoundland and Labrador.177 The court refused to give way to arguments of cost effectiveness in the absence of detailed and convincing evidence that the cost in routinely carrying out CT scans in the particular circumstances was prohibitive.
While the courts do not appear willing to apply a lower standard of care for physicians based on cost considerations alone, some relief has been afforded physicians in circumstances where, for economic or other reasons, clinical resources are simply not available. In a case involving the alleged breach of the standard of care for failing to conduct further investigations before discharging the patient who later died due to a dissected aortic aneurysm, the court stated:
The court must take into account the availability and cost of procedures, medication, and equipment to the attending physician at the time when the cause of action arose. This consideration will affect the standard of care in that a doctor cannot reasonably be expected to provide care which is unavailable or impracticable due to scarcity of resources.178
It is expected that the courts will continue to address resource issues to better define the appropriate standards of care for physicians. When faced with resource constraints, physicians should do their best for patients and act reasonably under the circumstances. Courts and regulatory authorities (Colleges) may take into consideration any resource constraints when adjudicating civil actions and complaints related to care provided. It should be remembered that physician care is judged not on a standard of perfection, but rather on the standard of care that might reasonably be applied by a colleague in similar circumstances.
In the meantime, physicians who are left to grapple daily with increasing pressure from government officials and hospital administrators to ration the use of healthcare resources might consider collaborating with others in promoting fair access to healthcare resources and participating in establishing guidelines, protocols, and criteria regarding the allocation or rationing of limited resources. As in other matters, the standard of care expected of a physician is determined by reference to the reasonable conduct of peers in similar circumstances. Physicians should therefore seek a consensus among colleagues and, where appropriate, seek advice from specialty organizations as to what might constitute appropriate guidelines or criteria for prioritizing patients.
Physicians might also discuss with the patient, as part of the consent process, limitations in availability of healthcare resources and the reasonable alternatives available to the patient, including seeking treatment elsewhere.
Finally, if physicians have concerns about lack of resources or protocols in their hospital that might adversely affect patient care, they should make every effort to draw those concerns to the attention of the appropriate authorities and to work toward resolution of the problem in a professional, respectful, and appropriate manner.
All such efforts and discussions should be appropriately documented.
Several studies have been conducted on professional liability, with resultant reports calling for reorganization of the courts and introduction of mechanisms for alternative dispute resolution. An early comprehensive review was the 1990 Federal, Provincial, Territorial Review on Liability and Compensation Issues in Healthcare chaired by J. Robert S. Prichard, then Dean of Law at the University of Toronto.179 There are three principal recommendations in the resultant report:
- Tort actions against healthcare providers should be maintained and enforced.
- Responsibility of healthcare institutions for the quality of care provided in and by them should be increased.
- An alternative to the no-fault compensation system might be considered for avoidable healthcare incidents that cause serious personal injuries.
More recently, the Honourable Stephen Goudge Q.C. conducted a review of the medical liability system in Ontario at the request of the Ministry of Health and Long-Term Care. His report180 recommended solutions aimed at addressing rising damages in medical liability cases and improving the efficiency and timeliness of the medical liability system. The report made numerous recommendations for procedural reforms in medical liability cases, and various recommendations for ways to lower damages in such cases, including future care costs. The CMPA was encouraged by Mr. Goudge’s recommended solutions aimed at addressing rising damages in medical liability cases and improving the efficiency and timeliness of the medical liability system.
Overall, the reviews reveal that there is a need for tort reform, either by legislation or through the courts, to stabilize the issues of liability and, in particular, the quantum of damages in professional liability cases. It is expected that there will be continued effort by the many stakeholders in the medical liability system to address these issues.
In addition, it is anticipated that the development and widespread use of virtual care will continue in many forms across Canada. Many regulatory, public health, and government authorities encouraged virtual care—via telephone, video platforms, and so on—as an alternative to face-to-face visits as part of the COVID-19 pandemic response. It is expected that virtual care will continue to be an effective way of delivering patient care in the future.
In order for virtual care to facilitate efficient and safe patient care, professional and regulatory requirements are important for guiding its appropriate use. Legislation, College policies, and privacy guidance are all key elements of a regime governing virtual care. Many legislatures, privacy commissions, and Colleges have begun this work in earnest, but there remains more to be done to address questions of risk for patients and physicians, especially as new technologies emerge.
The CMPA is keeping a close watch on the changing face of medical practice and the law so it can identify areas of potential risk and work with appropriate partners to continue to assist physicians in reducing their medico-legal risk and contribute to improvements in the safety of care.
The CMPA offers members timely advice on current and emerging issues via the Association's website. Members who are in doubt about any medico-legal issue are encouraged to contact the CMPA for assistance.
Focus on mutuality
In 1901, the Canadian Medical Protective Association (CMPA) was formed as a mutual defence organization, and mutuality remains a key value that defines CMPA membership. The underlying principle of mutuality is that members agree to collectively share the risks and associated costs amongst themselves, while benefiting from membership in a mutual defence organization. In light of the changing healthcare environment, this core value has never been more important than today. It is a cornerstone of the CMPA’s strategic plan, mission, and values.
In keeping with its core value of mutuality, the CMPA provides medical liability protection to its members, and in turn, members are responsible to their colleagues and to the CMPA to practise in a manner consistent with the values of the medical profession. Members are also expected to act in accordance with the existing obligations of the CMPA By-law and other obligations determined by the Association’s member-elected council.
Mutuality encompasses both the CMPA’s responsibility to individual members pursuant to the By-law, and members’ responsibility to their colleagues and the mutual as a whole. As the Association has evolved to support the needs of its membership, so too must the membership recognize and support the overall needs of the Association, with the ultimate goal of ensuring a medical liability system that is effective, sustainable, fair, and focused on delivering safe care.
In the context of mutuality of obligations, the CMPA:
- Provides access to high-quality assistance and support to members, where eligible and appropriate, with medico-legal issues arising from their medical professional work.
- Serves as a responsible steward of the resources and funds entrusted to it by all members.
- Provides appropriate compensation on behalf of members to their patients who have been proven to have been harmed by members’ negligent medical care.
- Is fair and transparent to the member in the application of its discretion when making decisions about assistance to members.
CMPA members in the mutual are expected to:
- Uphold the expectations of the medical profession by practising in a manner consistent with the values of the medical profession.
- Be responsive, respectful, and reasonable with CMPA staff and legal counsel.
- Co-operate with CMPA and its legal counsel and be appropriately involved in their own defence.
- Co-operate with CMPA and its professional staff in assessing and understanding the members’ medico-legal risk, accept feedback to help gain insight into their risk, and commit to working with the CMPA to proactively reduce their risk for their own benefit and that of the collective membership.
While the CMPA’s risk management advice and assistance are available to all members throughout their career, more customized educational support will be made available to members who are experiencing increased medico-legal challenges in relation to their peers. As part of mutuality, members will be expected to work with the CMPA to proactively reduce their risk and enhance the safety of medical care. In helping physicians improve their practices, this approach creates benefits that are shared by physicians, patients, and the healthcare system as a whole.
- RSC 1985, c C-46.
- SC 1996, c 19.
- The Jury Act, 1998, SS 1998, c J-4.2, s 18.
- Supreme Court Act, RSC 1985, c S-26, s 40.
- Québec, Code of Civil Procedure, RLRQ 2014, c C-25.01, art 141.
- Ontario, Rules of Civil Procedure, RRO 1990, Reg 194, r 24.1.
- Medical Act, RSPEI 1988, c M-5, s 49.
- Limitations Act, RSA 2000, c L-12, s 3(1)(b).
- Limitations Act, SNL 1995, c L-16.1, s 14(3).
- Limitations Act SBC 2012, c 13, s 21(1).
- The Limitations Act, SS 2004, c L-16.1, s 7(1).
- Limitation of Actions Act, SNB 2009, c L-8.5, s 5(1)(b).
- Limitations Act , 2002, SO 2002, c 24, Sch B, s 15(1)(2).
- Limitation of Actions Act, SNS 2014, c 35, s 8(1)(b).
- Limitation of Actions Act, CCSM c L150, s 7(5).
- Limitation Act , SBC 2012, c 13, ss 3(1), 6, 21.
- Limitations Act , RSA 2000, c L-12, ss 3(1), 5(1), 5.1.
- The Limitations Act, SS 2004, c L-16.1, ss 5-8, 16.
- The Regulated Health Professions Act, CCSM c R117, s. 175; The Limitation of Actions Act , CCSM c L150, ss 7(1)(2)(5), 8(1), 14(1)(4).
- Limitations Act , 2002, SO 2002, c 24, Sch B, ss 4, 6, 7(1), 9(2), 15(1), (2).
- Arts 2904, 2925, 2926 Civil Code of Québec .
- Limitation of Actions Act, SNB 2009, c L-8.5, ss 5, 17-18.
- Limitation of Actions Act, SNS 2014, c 35, s 8, 19(1).
- Medical Act , RSPEI 1988, c M-5, s 49; Statute of Limitations , RSPEI 1988, c S-7, s 5.
- Limitations Act, SNL 1995, c L-16.1, ss 5, 14(1) (3), 15.
- Limitation of Actions Act, RSY 2002, c 139, ss 2(1)(d), 5.
- Limitation of Actions Act, RSNWT 1988, c L-8, ss 2(1)(d), 2.1(3)(4), 5.
- Limitation of Actions Act, RSNWT (Nu) 1988, c L-8, ss 2(1)(d), 2.1(3)(4), 5.
- Art 10, 11 Civil Code of Québec .
- Hedley Byrne & Co. v. Heller & Partners Ltd.,  AC 465 (HL); Queen v. Cognos Inc.,  1 SCR 87, 1993 CanLII 146 (SCC).
- Reibl v. Hughes,  2 SCR 880, 1980 CanLII 23 (SCC).
- CQLR c S-4.2.
- Andrews v. Grand & Toy Alberta Ltd.,  2 SCR 229, 1978 CanLII 1 (SCC).
- Cunningham v. Wheeler; Cooper v. Miller; Shanks v. McNee ,  1 SCR 359, 1994 CanLII 120 (SCC).
- Whiten v. Pilot Insurance Co ., 2002 SCC 18.
- Charter of Human Rights and Freedoms, CQLR c C-12, s 49.
- The Canadian Medical Association, Code of Ethics and Professionalism, Ottawa: CMA, 20is, s 39. https://policybase.cma.ca/documents/policypdf/PD19-03.pdf.
- Available on the CMPA website at www.cmpa-acpm.ca.
- Available on the CMPA website at www.cmpa-acpm.ca.
- Sylvester v. Crits et al., 1956 CanLII 34 (ON CA),  OR 132 aff’d  SCR 991, 1956 CanLII 29 (SCC).
- The Supreme Court of Canada has affirmed, however, that in very limited circumstances of a non-technical nature, the court may make a finding that the approved practice is itself unacceptable or negligent: ter Neuzen v. Korn ,  3 SCR 674, 1995 CanLII 72 (SCC).
- Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC),  1 SCR 351
- Roe v Minister of Health ,  EWCA Civ 7.
- Mustapha v. Culligan of Canada Ltd .,  2 S.C.R. 114, 2008 SCC 27.
- Clements v. Clements, 2012 SCC 32,  2 SCR 181 .
- Schloendorff v. Society of New York Hospital , (1914), 211 NY 125, 105 NE 92, aff’d Reibl v. Hughes ,  2 SCR 880, 1980 CanLII 23 (SCC).
- Art 3 Civil Code of Québec.
- The Canadian Medical Protective Association, Consent: A Guide for Canadian Physicians (June 2016): www.cmpa-acpm.ca.
- Age of Majority Act , RSBC 1996, c 7, s 1; Age of Majority Act , RSA 2000, c A-6, s 1; The Age of Majority Act , RSS 1978, c A-6, s 2; The Age of Majority Act , CCSM c A7, s 1; Age of Majority and Accountability Act , RSO 1990, c A.7, s 1; art 153 Civil Code of Québec ; Age of Majority Act , RSNB 2011, c 103, s 1(1); Age of Majority Act , RSNS 1989, c 4, s 2(1); Age of Majority Act , RSPEI 1988, c A-8, s 1; Age of Majority Act , SNL 1995, c A-4.2, s 2; Age of Majority Act , RSNWT 1988, c A-2, s 2; Age of Majority Act , RSY 2002, c 2, s 1; Age of Majority Act , RSNWT (Nu) 1988, c A-2, s 2.
- Art 14 CCQ.
- E. (Mrs.) v. Eve ,  2 SCR 388, 1986 CanLII 36 (SCC).
- See e.g . Ontario’s Health Care Consent Act , SO 1996, s 6 (affirming SCC prohibition); and Saskatchewan’s Adult Guardianship and Co-decision-making Act , SS 2000, c A-5.3, s 24 (court order required). In Québec, the authorization of the court is necessary to submit mentally incapable persons of full age to care that is not required by their health condition and that could present serious risks to their health or cause severe and permanent damage (art. 18 CCQ).
- E. (Mrs.) v. Eve,  2 SCR 388, 1986 CanLII 36 (SCC).
- K v. Public Trustee, 1985 CanLII 766 (BC CA), 63 BCLR 145.
- Re H (1995), 130 Sask R 281 (QB).
- Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
- Malette v. Shulman (Ont. C.A.), 1990 CanLII 6868 (ON CA), 37 OAC 281.
- Re L.D.K. (An Infant) , 1985 CanLII 2907 (ON CJ), 48 RFL (2d) 164; Re A.Y. (1993), 1993 CanLII 8385 (NL SC).
- Wawrzyniak v. Livingstone, 2019 ONSC 4900.
- College of Physicians and Surgeons of Ontario, Planning for and Providing Quality End-of-Life Care , Policy No 4-15 (May 2016), <http://www.cpso.on.ca/Policies-Publications/Policy/Planning-for-Providing-Quality-End-of-Life-Care>.
- Health Care Consent Act 1996, SO 1996, c 2, Sch A.
- Cuthbertson v. Rasouli,  3 SCR 341, 2013 SCC 53 (CanLII).
- 1996, SO 1996, c 2, Sch A, s 2.
- Cuthbertson v. Rasouli,  3 SCR 341, 2013 SCC 53 (CanLII).
- McKitty v Hayani, 2019 ONCA 805 (CanLII).
- Carter v. Canada (Attorney General), 2015 SCC 5, 2015 SCC 5 (CanLII), para 127.
- Ibid, para 127.
- An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (formerly Bill C-14), 1st Sess, 42nd Leg, Canada, 2016 (assented to June 17, 2016).
- An Act to amend the Criminal Code (medical assistance in dying) (formerly Bill C-7), 2nd Sess, 43rd Leg, Canada, 2021 (assented to March 17, 2021)
- Truchon c. Procureur général du Canada, 2019 QCCS 3792 (CanLII)
- An Act Respecting End-of-Life Care RSQ 2014, c S-32.0001.
- Collège des médecins du Québec. Guide de pratique: L’aide médicale à mourir . Montréal (QC): le Collège; Updated November 2019 [cited 2021 March 30]. Please note that this guide is only available in the secured website of the CMQ.
- Smith v. Jones ,  1 SCR 455, 1999 CanLII 674 (SCC).
- Gunshot and Stab Wound Disclosure Act, SBC 2010, c 7, ss 1-3, 5.
- Gunshot and Stab Wound Mandatory Disclosure Act, SA 2009, c G-12, ss 1-4.
- Gunshot and Stab Wounds Mandatory Reporting Act, SS 2007, c G-9.1, ss 2-3, 5; The Gunshot and Stab Wounds Mandatory Reporting Regulations, RRS c G-9.1 Reg 1, ss 2(2), 4.
- Gunshot and Stab Wounds Mandatory Reporting Act, CCSM c G125, ss 1, 2, 4; Gunshot and Stab Wounds Mandatory Reporting Regulation, Man Reg 177/2008, ss 3, 4.
- Mandatory Gunshot Wounds Reporting Act, 2005, SO 2005, c 9, ss 1, 2, 4.
- An Act to protect persons with regard to activities involving firearms, CQLR c P-38.0001, ss 8 9.
- Gunshot and Stab Wound Mandatory Reporting Act, SNB 2020, c 26, ss 1-3.
- Gunshot Wounds Mandatory Reporting Act, SNS 2007, c 30, ss 3-5; Gunshot Wounds Mandatory Reporting Regulations, NS Reg 423/2008, s 3.
- Gunshot and Stab Wound Reporting Act , SNL 2011, c G-7.1, ss 2-4; Gunshot and Stab Wound Reporting Regulations , NLR 20/15.
- Gunshot and Stab Wound Mandatory Disclosure Act , SNWT 2013, c 19, ss 1-3.
- Gunshot and Stab Wound Disclosure Act, SBC 2010, c 7, ss 1-3, 5.
- Gunshot and Stab Wound Mandatory Disclosure Act, SA 2009, c G-12, ss 1-4.
- Gunshot and Stab Wounds Mandatory Reporting Act, SS 2007, c G-9.1, ss 2-3, 5; The Gunshot and Stab Wounds Mandatory Reporting Regulations, RRS c G-9.1 Reg 1, ss 2(2), 4.
- Gunshot and Stab Wounds Mandatory Reporting Act, CCSM c G125, ss 1, 2, 4; Gunshot and Stab Wounds Mandatory Reporting Regulation, Man Reg 177/2008, ss 3, 4.
- Gunshot and Stab Wound Mandatory Reporting Act, SNB 2020, c 26, ss 1-3.
- Gunshot and Stab Wound Reporting Act, SNL 2011, c G-7.1, ss 2-4; Gunshot and Stab Wound Reporting Regulations, NLR 20/15.
- Gunshot and Stab Wound Mandatory Disclosure Act, SNWT 2013, c 19, ss 1-3.
- An Act to Protect Persons With Regard to Activities Involving Firearms, CQLR c P-38.0001, ss 8 9.
- McInerney v. MacDonald,  2 SCR 138, 1992 CanLII 57 (SCC).
- College of Physicians and Surgeons of British Columbia, Bylaws, revised January 1, 2016, Part 3-Records, Section B - Registrant Records, Storage and retention of medical practice records , s 3-6(2) <https://www.cpsbc.ca/files/pdf/HPA-Bylaws.pdf>;
College of Physicians and Surgeons of British Columbia, Professional Standards and Guidelines, Medical Records, September 2014 <https://www.cpsbc.ca/files/pdf/PSG-Medical-Records.pdf>.
- Hospital Act Regulation, BC Reg 121/97, s 14(1).
- College of Physicians and Surgeons of Alberta, Standards of Practice, Administration of Practice, Patient Records Retention Reissued January, 2016 <http://www.cpsa.ca/standardspractice/patient-record-retent/>.
- Operation of Approved Hospitals Regulation, Alta Reg 247/1990, s 15(1),(3).
- College of Physicians and Surgeons of Saskatchewan, Regulatory Bylaws, Part 6 Practice Standards, Bylaw 23.1- Medical Records, effective July 2020.<https://www.cps.sk.ca/iMIS/Documents/Legislation/Legislation/Regulatory Bylaws.pdf>.
- Hospital Standards Regulations, 1980, Sask Reg 331/79, s 15.
- College of Physicians and Surgeons of Manitoba, Standards of Practice, Part 5, Patient Records , s 11(3) <http://www.cpsm.mb.ca/assets/Standards%20of%20Practice/Standards%20of%20Practice%20of%20Medicine.pdf#page=23>.
- Personal Health Information Act, CCSM c P33.5, s 17(1).
- General Regulation, O Reg 114/94, s 19(1).
- College of Physicians and Surgeons of Ontario, Policy #4-12, Medical Records , updated May 2012 <http://www.cpso.on.ca/policies-publications/policy/medical-records>.
- Hospital Management, RRO 1990, Reg 965, s 20.
- Règlement sur les dossiers, les lieux d’exercice et la cessation d’exercice d’un médecin, RLRQ c M-9, r 20.3, ss 12, 13.
- Archives Act, CQLR c A-21.1, s 7.
- College of Physicians and Surgeons of New-Brunswick, Guidelines, The Patient Medical Record, updated to June 2017 <https://cpsnb.org/en/medical-act-regulations-and-guidelines/guidelines/438-the-patient-medical-record>.
- General Regulation, NB Reg 92-84, s 23.
- College of Physicians and Surgeons of Nova Scotia, Guidelines on Responsibilities when Permanently or Temporarily Closing a Medical Practice, re-approved October 12, 2018 <https://cpsns.ns.ca/wp-content/uploads/2017/10/Permanently-or-Temporarily-Closing-a-Medical-Practice.pdf>.
- Personal Health Information Act, SNS 2010, c 41, s 50(1).
- College of Physicians and Surgeons of Prince Edward Island, Guidelines, Legal and Ethical Considerations when leaving a Medical Practice, Approved June 21,1995 <https://cpspei.ca/wp-content/uploads/2017/03/GUIDELINES-Legal-and-Ethical-Considerations-when-leaving-a-Medical-Practice-June-1995.pdf>.
- Hospital Management Regulations, PEI Reg EC49/11, s 18.
- College of Physicians and Surgeons of Newfoundland and Labrador, By-Law 6: Medical Records, s 21, effective September 13, 2017 <https://www.cpsnl.ca/web/files/By-Law 6 - Medical Records - September 9 2017.pdf>.
- Personal Health Information Act, SNL 2008, c P-7.01, s 13.
- Medical Profession Regulation, YOIC 1980/206, s 3; Yukon Medical Council, Standards of Practice, Administration of Practice, Records Management, s. (4), effective September 2015 <http://www.yukonmedicalcouncil.ca/pdfs/Records_Management.pdf>.
- Hospital Standards (Yukon Hospital Corporation) Regulation, YOIC 1994/227, ss 13, 14.
- Adoption of College of Physicians and Surgeons of Alberta, standard: CPSA, Standards of Practice, Administration of Practice, Patient Records Retention, Reissued January 2016 <http://www.cpsa.ca/standardspractice/patient-record-retent/>.
- Health Information Act, SNWT 2014, c 2 , s 195 (z.15)(z.16)(z.17). The Information and Privacy Commissioner is expected to make regulations respecting the retention of records.
- Adoption of College of Physicians and Surgeons of Alberta standard: CPSA, Standards of Practice, Administration of Practice, Patient Records Retention , Reissued January 2016 <http://www.cpsa.ca/standardspractice/patient-record-retent/>.
- The Canadian Medical Protective Association, Electronic Records Handbook (2014), available at www.cmpa-acpm.ca.
- Highway Safety Code, CQLR, c C-24.2, s 603.
- Motor Vehicle Act , RSNS 1989, c 293, s 279(7).
- Although under Alberta’s Traffic Safety Act, RSA 2000, c T-6, ss 60, 60.1, the duty to report is discretionary, a Fatality Inquiry Report to the Minister of Justice and Attorney General of Alberta in the Death of Megan Wolitski stated that the duty is mandatory (https://open.alberta.ca/publications/fatality-inquiry-2016-12-09).
- The Traffic Safety Act, SS 2004, c T-18.1, s 283.
- The Highway Traffic Act, CCSM, c H60, Part 1, s 157.
- Highway Traffic Act, RSO 1990, c H.8, s 203.
- Motor Vehicle Act, RSNB 1973, c M-17, s 309.1.
- Highway Traffic Act, RSPEI 1988, c H-5, s 233.
- Highway Traffic Act, RSNL 1990, c H-3, s 174.1.
- Motor Vehicles Act, RSNWT 1988, c M-16, s 103; Motor Vehicles Act , RSY 2002, c 153, s 17(3); Motor Vehicles Act, RSNWT (Nu) 1988, c M-16, s 103.
- Motor Vehicle Act, RSBC 1996, c 318, Part 4, s 230.
- Canadian Medical Association, CMA Driver’s Guide, Determining Medical Fitness to Operate Motor Vehicles, Edition 9.1 (October 2019):
- Child, Youth and Family Enhancement Act, RSA 2000, c C-12.
- The Child and Family Services Act, CCSM c C80.
- Youth Protection Act, CQLR c P-34.1.
- Child Protection Act, RSPEI 1988, c C-5.1.
- The Emergency Protection for Victims of Child Sexual Abuse and Exploitation Act, SS 2002, c E-8.2.
- Child, Family and Community Service Act, RSBC 1996, c 46.
- Child and Family Services Act, SY 2008, c 1.
- Family Services Act, SNB 1980, c F-2.2; General Administration Regulation, NB Reg 81-132.
- Child and Family Services Act, SNS 1990, c 5.
- Criminal Code, RSC 1985, c C-46, s 320.28.
- Ibid. s 810(3.02), 810.01(4.1), 810.1(3.02), 810.2 (4.1).
- Criminal Code, RSC 1985, c C-46, s 320.29.
- Criminal Code, RSC 1985, c C-46, ss. 320.29(4) and 320.37(1)
- Criminal Code, RSC 1985, c C-46, ss. 320.37(2)
- Mental Health Services Act, SS 1984-85-86, c M-13.1, s 24.
- Mental Health Act, RSBC 1996, c 288, s 22; Mental Health Act, CCSM c M110, s 17.
- Mental Health Act , RSO 1990, c M.7, s 20.
- Part 1 of the Constitution Act , 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 8, 9.
- Professional Misconduct, O Reg, 856/93, s 1(17).
- SOR/2018-144, ss 264-353.
- SC 1995, c 39.
- SOR/2018-144, ss 264-353.
- S.C. 2018, c. 16.
- College of Physicians and Surgeons of Saskatchewan, Regulatory Bylaws, July 2020, Standards for Prescribing Marihuana, s. 19.2 (d), <https://www.cps.sk.ca/iMIS/Documents/Legislation/Legislation/Regulatory%20Bylaws.pdf>.
- College of Physicians and Surgeons of Alberta, Standard of Practice, Cannabis for Medical Purposes , April 3, 2014, <http://www.cpsa.ca/standardspractice/cannabis-for-medical-purposes/>.
- See for example, College of Physicians and Surgeons of Prince Edward Island, Policies, Prescribing of Medical Marijuana, Approved November 30, 2016, < http://cpspei.ca/wp-content/uploads/2017/03/Marijuana-Prescribing-Nov-3016.pdf >; College of Physicians and Surgeons of Nova Scotia, Professional Standards Regarding Authorization of Marijuana for Medical Purposes, approved June 26, 2014, revised December 8, 2017,<https://cpsns.ns.ca/wp-content/uploads/2017/12/Authorization-of-Marijuana-Medical-Purposes.pdf >; College of Physicians and Surgeons of New Brunswick, Guidelines, Medical Marijuana, approved April 2014, revised September 2017, <http://cpsnb.org/en/medical-act-regulations-and-guidelines/guidelines/444-medical-marijuana>; Collège des médecins du Québec, Directives, Ordonnance de cannabis à des fins médicales, approved September 2018, <http://www.cmq.org/publications-pdf/p-1-2018-09-20-fr-ordonnance-cannabis-fins-medicales.pdf>.
- Firearms Act , SC 1995, c 39, s 5(2)(b).
- The Canadian Medical Protective Association, Disclosing harm from healthcare delivery: Open and honest communication with patients, Third edition, Ottawa ON, 2017.
- Disclosure Working Group, Canadian disclosure guidelines: being open and honest with patients and families , Edmonton, AB: Canadian Patient Safety Institute; 2011 http://www.patientsafetyinstitute.ca/English/toolsResources/disclosure/Documents/CPSI%20Canadian%20Disclosure%20Guidelines.pdf.
- World Health Organization, Conceptual Framework for the International Classification for Patient Safety, January 2009: https://apps.who.int/iris/bitstream/handle/10665/70882/WHO_IER_PSP_2010.2_eng.pdf;jsessionid=4296E43576AC47D783390108F416F8A6?sequence=1
- Disclosure Working Group. Canadian Disclosure Guidelines: being open and honest with patients and families. Edmonton, AB: Canadian Patient Safety Institute, 2011, p.11
- Québec, An Act Respecting Health Services and Social Services, CQLR c S-4.2, art. 8
- Québec, An Act Respecting Health Services and Social Services, CQLR c S-4.2, art. 183.2
- The Canadian Medical Protective Association, Collaborative care: A medical liability perspective (2006).
- Baynham v. Robertson (1993), 18 CCLT (2d) 15 (Ont Gen Div).
- Bateman v. Doiron (1991), 8 CCLT (2d) 284, aff’d (1993), 18 CCLT (2d) 1 (NB CA), leave to appeal to SCC refused (1994), 20 CCLT (2d) 320n (SCC).
- Thompson et al. v. Byrne et al., 1992 CanLII 4529 (NS SC), 1992 4529 (NS SC).
- Law Estate v. Simice, 1994 CanLII 3068 (BC SC), 21 CCLT (2d) 228 (BC SC), aff’d 1995 CanLII 3251 (BC CA),  4 WWR 672.
- McLean v. Carr Estate, 1994 CanLII 10343 (NL SCTD), (1994), 3636 A.P.R 271 (NL TD).
- Mathura v. Scarborough General Hospital,  OJ No. 47, 85 OTC 328 aff’d 2000 CanLII 16852 (ON CA),  OJ No. 3536.
- Conference of Federal-Provincial-Territorial Deputy Ministers of Health, Federal, Provincial, Territorial Review on Liability and Compensation Issues in Healthcare/ J. Robert S. Prichard, Chairman, (Toronto: University of Toronto Press, 1990).
- Report to Ontario Ministry of Health and Long Term Care Re: Medical Liability Review, Honourable Stephen Goudge Q.C. (December 29, 2017): http://www.health.gov.on.ca/en/common/ministry/publications/reports/medical_liability/docs/medical_liability_review_en.pdf.