Legal Regulation of the Physician–Patient Relationship
Paul B. Miller, JD, PhD
Assistant Professor, Faculty of Law, Queen’s University
Sujit Choudhry, LLB, LLM
Scholl Chair, Faculty of Law, University of Toronto
Angela Campbell, BCL, LLB, LLM
Assistant Professor, Faculty of Law, McGill University
The following material is provided for educational purposes only. It is not offered as legal advice or opinion, and is not to be relied upon as such.
Table of Contents
- Curricular Objective
- Common Law Obligations
- Civil Responsibility in Québec Civil Law
- Legislative Constraints
This primer aims to explain the legal duties that physicians have toward their patients. More specifically, it sets out the particular duties arising: at common law; within Québec civil law; and pursuant to other legislation governing particular dimensions of the physician–patient relationship, namely consent and capacity, advance directives, privacy, public health, and professional conduct.
Legal constraints on the conduct of physicians in their relationships with patients may arise through operation of the common law (judge-made or case law) or through the operation of statutes (legislation) as interpreted by the courts. This first section of the primer reviews the most common causes of civil action against physicians arising under the common law. Legal obligations existing at common law generally do not apply within Québec, since this is a civil law jurisdiction in which relationships between private parties are governed primarily by the Civil Code of Québec, as well as other legislation applicable only in this province. However, in the discussion that follows, the reader will note some important overlap in the ways in which common law and civil law define the obligations of physicians to their patients.
Generally speaking, a person (e.g., a physician) acts negligently when he/she acts so as to create an unreasonable risk of harm to another person (e.g., a patient) that is realized in injury. For the purposes of negligence liability, it does not matter whether the defendant intended to harm the plaintiff. Courts are only interested in whether the defendant breached a duty of care to the plaintiff in harming the plaintiff through a negligent act. In determining whether a given defendant is liable to the plaintiff for negligence, courts address the following four questions:
- Was the defendant under a duty to the plaintiff?
- Did the defendant’s conduct breach that duty?
- Did the defendant’s conduct result in harm?
- Is there a causal connection between the defendant’s breach of duty and the harm suffered by the plaintiff?
Was the Defendant Under a Duty to the Plaintiff?
Negligence liability requires the plaintiff to prove that the defendant owed the plaintiff a duty of care.1 To make out the existence of a duty of care, the plaintiff and his/her injury must be within the ambit of risk that makes the defendant’s act unreasonable.2 The ambit of risk defines the extent to which harm is reasonably foreseeable. The duty of care thus encompasses harm that may reasonably be foreseen, understood in terms of the risk of particular kinds of harm to particular persons.
In their relationships with patients, physicians operate presumptively under a duty of care, as the patient is the focus of the act or intervention in question. Physicians do not operate under a presumptive duty of care to non-patients simply by virtue of their professional status.
Did the Defendant’s Conduct Breach that Duty?
In determining whether a physician has violated their duty of care, the court assesses their conduct by an objective and heightened standard of care — namely, whether it is consistent with the conduct of a reasonable or prudent professional colleague in similar circumstances.3 Just as the defendant does not owe a duty of care to all persons, so he/she is not responsible for all of the risks generated by any negligent conduct. The scope of the duty of care is determined in consideration of the risk; that is, the likelihood and magnitude of harm.4 A defendant will not be found in breach of their duty of care to the plaintiff if the injury complained of results from a remote (unlikely) or trivial (insignificant) risk generated by the defendant’s action. For example, physicians are not responsible for unforeseeable complications of a treatment.
In defending against a claim in negligence, physicians may wish to appeal to their conformity with professional custom or patterns of practice. Courts have held that custom is a highly relevant, but not a determinative consideration in negligence cases; proof of consistency with custom is not determinative, given that a court may find the customary practice itself negligent (e.g., it is obviously not supported, or is counter-indicated, by current evidence).5 In these cases, appeal to custom is not a defence — the physician cannot be relieved of his/her individual accountability for making responsible and informed judgments that accord with the duty of care.
Did the Defendant’s Conduct Result in Harm?
The plaintiff cannot recover damages unless he/she proves that the defendant’s negligent act resulted in injury. Proof of injury is usually a simple question of fact — either there is demonstrable evidence of legally recognizable harm to the plaintiff or there is not.6 Physicians should be aware that both psychological and physical harms are legally recognized, although psychological harms must be in the nature of a recognized psychiatric illness.7
Is There a Causal Connection Between Defendant’s Breach of Duty and the Harm Suffered by the Plaintiff?
In order for the plaintiff to recover damages from the defendant, the harm he/she complains of must be shown to have been caused by a negligent act of the defendant on a balance of probabilities.8 The basic test for causation is encapsulated in the “but for…” requirement: but for the defendant’s negligence, would the plaintiff have been injured? If the plaintiff would have suffered the injury in question in any event, the defendant is not liable, no matter how negligent or reprehensible their conduct.9 For example, the physician is not responsible for negligence in the injury or death of a patient whom they have failed to treat appropriately if the provision of appropriate treatment could not have prevented the harm (i.e., injury or death) from occurring.
Problems arise when an injury has multiple causes. For instance, there may be two or more negligent actors, each of whose actions would independently give rise to liability on the “but for…” test. Each can claim that the plaintiff would have suffered the injury independently of their negligent act. Despite causal over-determination, courts have found defendants jointly and severally liable for their negligence.10 Where there are multiple negligent actors, none of whose negligence alone would have caused the injury, but instead contributed substantially to it, courts will hold them liable under the “substantial factor” test, whereby their act must have “materially increased” or “substantially contributed” to the risk realized in the harm complained of.11 Likewise, where an injury may have been caused by negligent conduct and/or an innocuous occurrence (e.g., the natural progression of a degenerative disease), liability for the full extent of the injury will be established if it is proven on a balance of probabilities that the negligent conduct materially contributed to the injury.12
Ordinarily, the burden of proof for establishing a material contribution to injury will rest with the plaintiff, given the presumptive rule at common law that the party making an assertion bears the burden of proving it. However, it has been held that in cases of medical negligence, where facts lie within the knowledge of the defendant, the burden may be discharged quite readily, with the burden then lying upon the defendant to disprove material contribution.13
If the above four questions are answered in the affirmative by the court, it will then consider whether the defendant has any defence for their negligent conduct. The only defence likely to be applicable to cases involving physicians and patients is the partial defence of contributory negligence. Where the defendant makes out a claim that the plaintiff negligently contributed to their own injury, the Negligence Act provides that the customary award of compensatory damages against the defendant will be reduced, and proportioned in accordance with the degree of fault.14 For example, a patient will be entitled only to proportionate compensation for an injury caused by their physician’s negligence in the performance of a medical procedure if the patient has contributed to the injury by failing to follow posttreatment instructions.
- Picard EI, Robertson GB. Negligence — general principles. In their Legal liability of doctors and hospitals in Canada. 4th edition. Toronto: Carswell; 2007: 211–94.
- Robertson GB. Negligence and malpractice. In: Downie J, Caulfield T, Flood C, editors. Canadian health law and policy. 2nd edition. Markham: Butterworths Canada Ltd.; 2002: 91–109.
- Weinrib E. Tort law: cases and materials. Toronto: Emond Montgomery; 1997: Chapters 2–5.
A defendant (e.g., a physician) commits battery when he/she physically interferes with the plaintiff’s (e.g., a patient’s) bodily integrity without consent. It is not necessary for the interference to result in injury to the plaintiff; rather, the wrong complained of is non-consensual physical interference with the plaintiff in violation of his/her autonomy. The basic implication of the tort of battery for the conduct of the physician is that a physician cannot perform any procedure on a patient until and unless the patient (or a legally authorized representative) has consented to the performance of the procedure, having been fully informed of the material risks and benefits of the procedure, and those of alternative courses of action.
There is an important exception to the requirement for consent to physical interference in the case of emergencies. The exception requires that the plaintiff be unconscious and have no agent present, that time is critical and that proceeding without consent is, in the circumstances, reasonable. Despite the exception for emergencies, a physician will still be found liable for the tort of battery if he/she disregards any prior instructions from the plaintiff (e.g., advance directives, living wills).15
The physician can defend against a suit in battery by proving that, on a balance of probabilities, the plaintiff consented to the physical interference in question. A range of factors are considered in determining whether claimed consent is legally valid:
- Firstly, the plaintiff must have the capacity to consent, meaning that he/she must be able to understand the nature and purpose of the procedure and any alternative procedures. Where the plaintiff does not have the capacity to consent, informed consent must be obtained from a parent or other legally authorized representative (e.g., a court-appointed guardian).
- Secondly, the consent provided must be fully informed, meaning that the patient must have received relevant and comprehensible information regarding the material risks and benefits of the proposed procedure and any available alternatives. Material risks are those that a reasonable person in the plaintiff’s circumstances would want to be apprised of.
- Thirdly, the consent must be specific, meaning that consent must be given to a particular specified procedure, or set of procedures, that are in turn specified to be performed by a particular physician.
- Finally, the consent must be voluntary; that is, it must be provided of the patient’s free will, in circumstances free of coercion, undue influence, fraud and misrepresentation.
While violation of the requirement that consent be fully informed traditionally gave rise to an action in battery, since the landmark case of Reibl v. Hughes,16 violation of this requirement also gives rise to a claim in negligence. Prior to Reibl v. Hughes, the distinction between battery and negligence was relatively clear and settled. If a patient sought redress for an injury suffered on account of the failure of a physician to exercise due care in the performance of a procedure, the action would be in negligence. If, however, the patient complained of lack of information, but the procedure itself was competently done, the action would be in battery. Inadequate provision of information by the defendant was understood as vitiating consent, thus allowing the action for battery.
Subsequent to Reibl v. Hughes, an action in battery is still available where it is clear that no consent was obtained, where the procedure performed is clearly not what was consented to, or where consent is defective due to fraud or misrepresentation. To make out a claim in battery against a physician, a patient needs only prove non-consensual touching. However, where the complaint is one of a physician’s failure to disclose material risks, the action is now one of negligence. For these cases, the principles of negligence law require the patient to prove that the physician failed to meet the standard of care by bringing expert evidence on information disclosure, and to prove causation by arguing that he/she would not have undergone the procedure had he/she been properly informed.
Reibl v. Hughes raises some peculiar problems for the application of negligence principles, particularly those relating to causation. If the court finds a physician negligent for not disclosing material risks to the patient, how does it deal with the question of whether the patient would have undergone the operation had the risks been disclosed? Based on traditional negligence jurisprudence, the “but for…” test would have been applied: but for the negligence of the defendant in withholding information, would this patient have undergone the procedure? One would expect plaintiffs to claim that they would not, and the courts would be left to decide causation through an assessment of their credibility.
The court in Reibl v. Hughes, however, formulated a novel test for negligence in relation to the provision of information. For these cases, the test for causation is as follows: but for the negligence of the defendant, would a reasonable patient in the circumstances of this patient (taking account of their particular concerns and special considerations) have undergone the procedure?17 Regardless of what this particular patient would have done, if a reasonable patient in the same circumstances would have undergone the procedure having received the information in question, there is no liability. The particular concerns and special considerations encompassed by the circumstances of a patient include their age, income, marital status, reasonable beliefs, fears, desires and expectations, and specific questions that these factors may give rise to.18
- Dickens B. Informed consent. In: Downie J, Caulfield T, Flood C, editors. Canadian health law and policy. 2nd edition. Markham: Butterworths Canada Ltd.; 2002: 129–56.
- Gilmour J. Children, adolescents, and health care. In: Downie J, Caulfield T, Flood C, editors. Canadian health law and policy. 2nd edition. Markham: Butterworths Canada Ltd.; 2002: 205–49, esp. 225–40.
- Nelson E. The fundamentals of consent. In: Downie J, Caulfield T, Flood C, editors. Canadian health law and policy. 2nd edition. Markham: Butterworths Canada Ltd.; 2002: 111–28.
- Picard EI, Robertson GB. Consent. In their Legal liability of doctors and hospitals in Canada. 4th edition. Toronto: Carswell; 2007: 43–121.
- Picard EI, Robertson GB. Informed consent — the doctor’s duty of disclosure. In their Legal liability of doctors and hospitals in Canada. 4th edition. Toronto: Carswell; 2007: 123–209.
- Weinrib E. Tort law: cases and materials. Toronto: Emond Montgomery; 1997: Chapter 9.
Fiduciary relationships are a special category of legal relationship in which one person (the fiduciary) enjoys discretionary power over significant practical interests (e.g., medical, legal or financial interests) of another (the beneficiary). In determining whether a given defendant is liable to the plaintiff for breach of fiduciary duty, courts address two key questions:
- Is the relationship a fiduciary relationship?
- Has the fiduciary acted in breach of a recognized obligation?
Is the Relationship a Fiduciary Relationship?
The determination of whether a relationship is fiduciary is customarily conducted through appeal to categories of fiduciary relationships that have been established by precedent. Where a given relationship falls outside of traditionally recognized categories of “relationships of trust and confidence,” it may nonetheless be determined fiduciary on a case-by-case assessment of the factual circumstances of the relationship.
In Canada, the physician–patient relationship has long been recognized as one of the traditionally recognized categories of fiduciary relationship. To prove that the relationship is of a fiduciary nature, the plaintiff therefore need only demonstrate that a bona fide physician–patient relationship has been established between the plaintiff and defendant.19
The most powerful recent statement on the fiduciary nature of the physician–patient relationship is found in the judgment of J. McLachlin, as she was then, in Norberg v. Wynrib:
“The relationship of physician and patient can be conceptualized in a variety of ways. It can be viewed as a creature of contract, with the physician’s failure to fulfil his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence. In common with all members of society, the doctor owes the patient a duty not to touch him or her without his or her consent; if the doctor breaches this duty he or she will have committed the tort of battery. But perhaps the most fundamental characteristic of the doctor–patient relationship is its fiduciary nature. All the authorities agree that the relationship of physician to patient also falls into that special category of relationships which the law calls fiduciary.”20
The significance of trust to the physician–patient relationship and, in turn, to the characterization of that relationship as fiduciary, was also emphasized by McLachlin:
“…the doctor–patient relationship shares the peculiar hallmark of the fiduciary relationship — trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests. Recognizing the fiduciary nature of the doctor–patient relationship provides the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires.”21
Has the Fiduciary Acted in Breach of a Recognized Obligation?
Even if the existence of a fiduciary relationship is established by the plaintiff, he/she must also show that the fiduciary has acted in breach of a recognized fiduciary obligation.
The obligation to act in the beneficiary’s best interests is considered the most basic of all fiduciary obligations. Indeed, it is the essential characteristic of fiduciary status. As Finn has noted, “[F]or a person to be a fiduciary he [sic] must first and foremost have bound himself in some way to protect and/or to advance the interests of another.”22 Although it may seem obvious, it is important to keep in mind that the fiduciary is responsible for only those interests of the beneficiary that fall within the scope of the relationship. Thus, a general practitioner is obliged to act in the patient’s best interests in the protection and promotion of their overall health.
While the core obligation of the fiduciary is to act in the best interests of the beneficiary, fiduciaries are not liable for a mere failure to protect, promote or preserve the interests that are subject to their power. Fiduciary liability is premised upon fault, not outcome. Accordingly, fiduciaries are deemed to act in breach of duty only when they commit wrongs founded upon recognized fiduciary duties. Existing legal authorities recognize the following four duties as fiduciary:
- Firstly, fiduciaries are most commonly said to operate under a duty of loyalty, requiring them to avoid or properly manage conflicts of interest. The duty of loyalty encompasses situations where the interests of the beneficiary (e.g., the patient) may conflict with the self-interest of the fiduciary, and where they may conflict with the fiduciary’s duty to protect and advance the interests of a third party. The duty of loyalty is very strict, encompassing potential as well as actual conflicts. It is not infrequently violated by physicians who engage in inappropriate sexual conduct with their patients. Courts have repeatedly held physicians liable for violation of their fiduciary duty of loyalty where they have engaged in sexual relations with their patients, regardless of consent.23
- Secondly, fiduciaries are also commonly said to operate under a duty of care requiring them to exercise reasonable care, diligence and skill in the exercise of their discretionary power (e.g., clinical judgment in the diagnosis and treatment of a patient). The standard of care required of fiduciaries is unclear, but typical formulations suggest that fiduciaries are required to act as a reasonable fiduciary would, having mind to their core (if not directly enforceable) duty to act in the best interests of the beneficiary. It is not clear whether the scope of the fiduciary’s duty of care (encompassing notions of skill and diligence) and/or the standard of care applicable to fiduciaries add anything to the principles of negligence in tort.
- Thirdly, fiduciaries are sometimes said to operate under a duty of discretion that requires them to exercise the discretion attached to their authority.24 This duty is violated where the fiduciary neglects the interests of a beneficiary in failing to exercise judgment. A fiduciary often fails to exercise judgment by ceding judgment to another (e.g., by acting on direction or delegating important decisions), but they may also do so on other bases.
- Finally, fiduciaries are sometimes said to operate under duties of disclosure and confidentiality. A full and frank exchange of information in an atmosphere of trust is required for the proper functioning of fiduciary relationships. In view of this, and in light of the beneficiary’s vulnerability to exploitation, the courts protect his/her interests by requiring the fiduciary to disclose conflicts of interest, past mistakes and other material information.25 The trust vested in fiduciaries is also protected through the duty of confidentiality, which limits fiduciaries’ use and disclosure of beneficiaries’ confidential information, and requires them to take reasonable steps to protect confidentiality.
Where a fiduciary has been found to have breached a fiduciary duty to their beneficiary, a range of remedies are available. The court may award an account of profits, which is a monetary award equal to the net profit made by the fiduciary through the breach of duty (e.g., where a physician accepts a payment in violation of their duty of loyalty to the patient). Plaintiffs may also be awarded damages if they have incurred a loss as a result of the fiduciary’s breach of duty (e.g., where a patient is injured as a result of the physician’s violation of a fiduciary duty). Finally, the plaintiff may be awarded punitive damages, intended solely to punish wrongful conduct, where the wrong committed by the fiduciary is particularly egregious or reprehensible in the circumstances (e.g., where a physician exploits the vulnerability of a patient for sexual purposes).
- Hall MA. Law, medicine, and trust. Stanford Law Review 2002; 55: 463–527. Rodwin MA. Strains in the fiduciary metaphor: divided physician loyalties and obligations in a changing health care system. American Journal of Law & Medicine 1995; 21 (2–3): 241–57.
Unlike the common law’s system of determining civil liability through reliance on judge-made rules pertaining to distinct torts or wrongs, assessing la responsibilité civile in Québec civil law requires an investigation into whether the defendant committed a fault, and whether this fault in turn caused an injury to the plaintiff. A fault occurs when a person fails to meet one of their legal obligations. These obligations emerge from the Civil Code of Québec (CCQ), as well as from other sources such as statutes and contracts.
This section of the primer discusses how medical liability is assessed under the rules of Québec civil law. It examines obligations that are particularly relevant to physicians in the province, and proceeds to consider issues arising in the legal analysis of whether a breach of such an obligation caused injury to another person.
In Québec, the physician–patient relationship is typically characterized as a contractual one, although there are situations in which it might be cast as “extra-contractual” (i.e., outside of contract). Regardless of how the relationship is categorized, a physician is always held to certain obligations and will be responsible for any injury that results from a failure to adhere to these obligations.26 While the content of physicians’ obligations is not spelled out in the CCQ or in any other statute, the jurisprudence and academic writing on the topic fill this void.
Four broad obligations held by physicians to their patients can be discerned from the literature:
- The obligation to obtain informed consent.
- The obligation to provide prudent and diligent care.
- The obligation not to abandon the patient.
- The obligation to preserve confidentiality.
Conduct that violates any of these obligations in an unreasonable fashion amounts to a fault on the physician’s part that might lead to civil liability. The discussion that follows explores each of these four obligations. It is followed by a brief word on a fifth potential fault pertaining to the failure to adequately supervise persons working under the physician’s charge, which might also trigger liability.
Obligation to Obtain Informed Consent
The Québec Charter of Human Rights and Freedoms,27 the CCQ28 and Québec’s Code of Ethics of Physicians29 articulate principles that impose upon physicians an obligation not to proceed with any medical intervention unless and until the patient has expressed their consent to such an intervention.
In order for this consent to be valid, it must be voluntary and informed. As such, a physician must provide the patient with all of the information necessary to make an enlightened decision about whether to accept the intervention or treatment proposed. This includes information about the patient’s diagnosis, illness or injury; the nature, objective and risks of the proposed intervention or treatment; and the range of possible treatment options. The physician must also respond to the patient’s questions. The information should be explained in intelligible and clear terms, and the physician must do their best to ensure that the patient has understood. The patient then must clearly express their consent before the physician may proceed with the proposed intervention or treatment.
The parameters of the physician’s duty to inform have been the subject of some controversy in Québec. While the Supreme Court of Canada’s pivotal ruling in Reibl v. Hughes laid down a test for the common law premised on the concepts of “full disclosure” and the “reasonable patient,” its influence over the Québec courts has varied. Ultimately, however, the civilian jurisprudence has developed a distinct approach for assessing whether physicians met their obligation to inform and obtain consent. In particular, the standard in Québec civil law requires that a physician supply the patient with all of the information relevant to the particular patient being treated (a subjective standard), as opposed to the information that would be desired by the reasonable or ordinary patient (an objective standard). Thus, a court faced with assessing a claim that a patient was deprived of the opportunity to provide informed consent will ask whether the physician supplied all the information that a reasonably prudent and diligent physician would have offered to this particular patient in the circumstances. In deciding this issue, courts will take into account that only material risks must be disclosed. Materiality is determined by considering both the probability of the risk arising and the gravity of its potential consequences.30
Context will determine the precise nature and scope of the information that the physician must offer the patient. In an emergency, where time is of the essence, an intervention that is urgently required by the patient’s state of health might not be preceded by an elaborate discussion (or, perhaps, any discussion at all) about the treatment. This will not amount to fault on the physician’s part.31 In contrast, where the intervention is purely elective (e.g., aesthetic surgery, contraceptive sterilization), the law requires the physician to provide more thorough and detailed information regarding the intervention or treatment and its potential risks and consequences. Similarly, where the procedure in question is not related to treatment but is part of a clinical research trial, or where it involves the voluntary donation of a bodily organ or tissues by a living person, all known risks must be disclosed and special criteria must be met in addition to consent.32
Finally, it should be noted that the discussion presented here assumes the patient’s capacity to consent and that he/she is of the age of majority. The CCQ establishes more precise and exacting rules for obtaining consent where the patient is a minor (particularly if under the age of 14 years) or lacks the capacity to consent.33 These rules should be consulted and followed in any case where consent must be obtained from a surrogate decision-maker.
Obligation to Provide Prudent and Diligent Care
A physician is never bound to achieve or guarantee any particular result for a patient. The physician is held to an “obligation of means,” meaning that the legal analysis of whether he/she has committed a fault turns on the use of reasonable means or procedures to treat the patient, rather than on the outcome attained. Thus, liability does not arise for failing to cure or even for failing to administer an effective treatment. Rather, it might be triggered when the physician applies inadequate, dangerous, obsolete or unsuitable means for diagnosing and treating a patient.
Where a physician’s professional conduct is impugned, a court will evaluate this conduct with reference to that of a “prudent and diligent doctor placed in the same circumstances.”34 This “prudent and diligent” colleague will be one with the same level of training and specialized expertise as the defendant. Courts will also typically rely on evidence regarding accepted current practices to determine whether the physician’s conduct was reasonable. However, the court may find that the professional standard falls short of what the law requires in the way of prudent and reasonable conduct. Therefore, even if a physician follows current medical practices, they might still be subject to liability if this standard is deemed insufficient.35
Obligation Not to Abandon the Patient
Once a physician has undertaken a medical examination, conducted an intervention or prescribed a treatment for a patient, he/she bears an ensuing obligation not to abandon that patient. In other words, after care of any kind is administered, the physician must “provide the medical follow-up required by the patient’s condition” unless the physician has ensured that a colleague or another competent professional will do so.36 Where a physician wishes to refer the patient to a colleague, he/she remains responsible for the patient until the new physician takes up the patient’s care.37
Case law and academic discussion in Québec shed further light on the nature of the follow-up care that a physician must provide the patient. Based upon these sources, the physician’s obligation not to abandon a patient includes a duty to: disclose and explain the results of any tests ordered for the patient (e.g., blood work, X-rays); tell the patient whether, when and how often the physician wishes to see the patient again; inform the patient about the potential complications or side effects of an administered treatment that should prompt the patient to re-consult the physician; and evaluate the treatments administered.
It should be noted that the physician’s obligation to follow-up with a patient is not absolute, given that a myriad of posttreatment complications might arise and a physician cannot be held liable for all of these. Rather, the physician’s conduct will be evaluated to determine whether it matched that of a prudent and diligent physician in the same circumstances. If so, the obligation is met and there will be no attribution of fault.
Obligation to Preserve Confidentiality
As in other provinces, physicians in Québec are obliged to maintain the confidentiality of their patients’ medical information. This obligation is fundamental, finding explicit support in the Québec Charter of Human Rights and Freedoms, R.S.Q.c. C-12:
“9. Every person has a right to non-disclosure of confidential information. “No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law. “The Tribunal must, ex officio, ensure that professional secrecy is respected.”
The requirement for professional secrecy is established with particular reference to physicians in Québec’s Medical Act, which provides: “[N]o physician may be compelled to declare what has been revealed to him in his professional character.”38
Québec’s Code of Ethics of Physicians sets out six particular elements of the physician’s obligation to maintain patient confidentiality:39
- An obligation to keep information obtained in the practice of the physician’s profession confidential.
- An obligation not to reveal the identity of patients who have consulted the physician, and not to participate in indiscrete conversations about a patient.
- An obligation to take reasonable means to maintain professional secrecy among those with whom the physician works.
- An obligation not to use confidential information to the patient’s detriment.
- An obligation of nondisclosure, save for where divulgation is permitted by the patient or law, or where it would be justified on the grounds of the patient’s or others’ health and safety.
- An obligation not to reveal a fatal or serious prognosis to the patient’s family if the patient so requests.
A breach of any of these obligations amounts to a fault that will trigger liability if it causes the patient a loss or injury. The injury most likely to ensue from a wrongful disclosure of confidential information is moral (i.e., to the patient’s sense of dignity or privacy), but might also be material, such as where the divulgation causes the patient to lose income or employment.
As suggested by the foregoing, the physician’s duty to maintain confidentiality can be lifted in certain circumstances, for example where the patient authorizes disclosure or when a statute requires disclosure (e.g., disclosure is required in particular situations under Québec’s youth protection and public health legislation). A court might also order the disclosure of medical information for evidentiary purposes. Finally, the Code of Ethics of Physicians permits (but does not require) physicians to reveal confidential information where: “there are compelling and just grounds related to the health or safety of the patient or of others.”40
Fault Arising by Virtue of the Acts of Another
As a final point, we note that aside from circumstances in which a physician breaches one of the four broad obligations discussed, a physician might also be responsible for injury caused by the fault of persons working under their charge. While the contexts in which this type of indirect responsibility might arise are limited, the physician should be aware of the possibility in relation to nurses, residents or medical students working under their direct authority, control or orders.
In addition to establishing the commission of a fault, a plaintiff must also show that this fault caused an injury. This injury must flow directly from the defendant’s fault (this element being linked to causation, discussed below) and must be certain, rather than only possible or hypothetical. The CCQ recognizes three different categories of injury that a plaintiff might sustain: “The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default.”41
The analysis of the plaintiff’s injury is oriented toward determining the nature and extent of the loss caused by the defendant’s fault and, thus, the quantum of damages the plaintiff is owed. This analysis is always specific to the plaintiff; the court will assess the impact of the injury on the plaintiff and, on this basis, reach a conclusion about compensation.
A defendant might also be ordered to pay punitive damages if their fault amounts to “unlawful and intentional interference” with a recognized right under the Québec Charter.42 In the context of medical fault, such rights could include those of a private life, inviolability, human dignity or professional secrecy. However, the amount of punitive damages “may not exceed what is sufficient to fulfill their preventive purpose,”43 and it is noteworthy that punitive damages are rarely awarded in medical liability cases.
Once it has been established that a physician has failed to meet one of their obligations to a patient and that the patient suffered an injury, it must be shown that the physician’s fault (i.e., breach of obligation) was the direct cause of the patient’s injury. Causation is a complex topic in the law of civil liability, especially in the context of medical liability, and specialized texts on the matter should be consulted where a fuller appreciation of the subject is required. For the purpose of this primer, two elements pertaining to causation are likely to be of most relevance to physicians in Québec: the first involves factual presumptions, while the second pertains to establishing causation where the alleged medical fault involves the failure to obtain informed consent. These elements are of particular interest here, given their distinctiveness from causation in the common law.
Although proving causation in medical liability cases is often extremely difficult, both fault and causation can be established in Québec civil law through the evidentiary tool of factual presumptions. Thus, where there is no direct evidence establishing causation but the evidence remains compelling, a court has the discretion to infer that the defendant’s fault caused the plaintiff’s injury. This clearly makes it easier for the plaintiff to prove liability and, in a recent medical liability case, the Québec Court of Appeal affirmed that presumptions are a means for the court to employ the principle of “pour que la vérité soit connue et que justice soit faite” (for the truth to be known and justice to be done), particularly given the diminished resources of plaintiffs relative to those of the defendants in such cases.44
With respect to causation in the medical liability context, the Supreme Court has stated: “Where a fault presents a clear danger and where such a danger materializes, it may be reasonable to presume a causal link, unless there is a demonstration or indication to the contrary.”45 However, this statement has been tempered considerably by a more recent Supreme Court decision in which no presumption of causation was applied. More specifically, this decision emphasized that the CCQ allows courts to consider only “serious, precise and concordant” presumptions,46 and indicated that these criteria are not satisfied if the evidence “point[s] in different and sometimes opposite directions.”47
Once a court draws a presumption of causation, it is up to the defendant to rebut the presumption with contrary evidence. As Khoury has noted, in Québec civil law, “The rebuttal of a presumption of causation succeeds if it is shown that the occurrence of the harm is as consistent with a lack of fault as with the existence of fault.”48
Establishing a Causal Connection Between the Failure to Inform and Patient Injury
Where a physician fails to provide their patient with the information necessary to make an informed decision about whether to proceed with a particular medical intervention, this generally constitutes a fault. However, it will only lead to liability if the patient can demonstrate that they suffered an injury and that, were they given the requisite information, they would not have consented to the intervention. Thus, unlike the Reibl v. Hughes test applicable in common law provinces that turns on whether a “reasonable patient” would have consented, in Québec, courts undertake a predominantly subjective analysis and will examine whether that particular patient, if informed of all the risks of the treatment that would have been pertinent to them, would have consented to the intervention. If so, causation is not established and liability will not ensue.
A noteworthy critique of this subjective approach to causation is that it prompts courts to place undue weight upon the patient’s testimony. A patient, giving evidence with the benefit of hindsight, would almost always say that they would not have consented had they been properly informed. Issues regarding the patient’s credibility drove common law courts to adopt the objective “reasonable patient” test. In Québec, courts have responded by evaluating the patient’s testimony in comparison with the hypothetical behaviour of the reasonable patient. This is done simply as a means to test credibility, however, and is not technically part of the causation analysis, which remains subjective.49
- Baudouin J-L, Deslauriers, P. La responsabilité civile, volume II : la responsabilité professionnelle. 7e édition. Cowansville, Québec: Yvon Blais; 2007.
- Khoury L. Uncertain causation in medical liability. Oxford: Hart Publishing; 2006.
- Philips-Nootens S, Lesage-Jarjoura P, Kouri RP. éléments de responsabilité civile médicale : le droit dans le quotidien de la médecine. Cowansville, Québec: Yvon Blais; 2007.
Legal constraints on the conduct of physicians in their relationships with their patients may arise through operation of the common law (judge-made or case law), civil law (codified law) or statutes (legislation) developed by federal and provincial legislatures. This section of the primer reviews several pieces of legislation from various provinces governing the physician–patient relationship. In particular, we review legislation pertaining to consent and capacity; advance directives and the power of attorney for personal care; privacy of health information; public health; and rules of professional competence and conduct.
This section provides a brief overview of selected provincial legislation covering key aspects of the physician–patient relationship. The reader is advised that our coverage is highly selective. Due to space constraints, for each subsection we provide only the highlights of legislation from a single province. Readers should be mindful that there are often significant differences between provincial statutes and that for some areas (e.g., privacy of health information), some provinces have not enacted any legislation.
Despite the existence of the universally applicable common law doctrine of informed consent, several Canadian provinces have promulgated legislation providing specific and detailed rules relating to consent and capacity in health-care settings. Here, we review key provisions of Ontario’s Health Care Consent Act (HCCA) pertaining to consent to treatment.50
Consent and Capacity
The HCCA contains several important general provisions relating to the capacity and expressed wishes of patients. For instance, capacity is defined as the ability “to understand the information that is relevant to making a decision … [and] to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”51 The Supreme Court has clarified that the first element of capacity “requires the cognitive ability to process, retain and understand the relevant information,” while the second “requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”52 Capacity requires cognitive ability, not comprehension or appreciation.53
The HCCA provides that persons are to be presumed capable, and entitles health-care practitioners to act on that presumption, unless they have reasonable grounds to believe otherwise.54 According to the Supreme Court, “the presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity” as defined in the HCCA (see below).55 The HCCA also entitles capable persons to express their health-care wishes in a written or oral power of attorney (see below).56
The HCCA clearly states that physicians cannot administer treatment without first obtaining consent from patients whom they judge capable, or obtaining consent from substitute decision-makers for patients whom they judge incapable.57 It also requires physicians to respect the findings of capacity made by the Consent and Capacity Board (CCB) or a court.58 Under the HCCA, capacity depends on time and the proposed treatment: a person may be capable of consenting at one time but not at another, and may be capable of consenting to some treatments but not to others.59 The HCCA also requires physicians to be mindful that patients may recover capacity. Where patients recover capacity, their decisions are binding.60
Importantly, the HCCA details the elements required for valid consent. In short, consent must relate to the particular treatment (i.e., it must be specific), be informed and voluntary, and be free of misrepresentation or fraud.61 The HCCA clarifies that consent is informed where it is: (a) based on information that a reasonable person would require to make the decision (including information on the nature of the treatment, its expected benefits, material risks, side effects and alternatives, and the consequences of non-treatment);62 and (b) where requests for additional information have been met.63 The HCCA recognizes that actual consent may be either express or implied.64
Where consent to treatment is given, either express or implied, physicians are entitled to presume that it includes: (a) consent to variations or adjustments to treatment where the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the original; and (b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment.65 Physicians should be aware that the HCCA entitles patients or substitute decision-makers to withdraw consent to treatment at any time.66
Substitute Decision-Making for Incapable Persons
The HCCA also contains provisions governing substitute decision-making for incapable persons (including children and incapable adults).
The HCCA provides that consent to treatment may be given or refused on behalf of an incapable person by a representative (substitute decision-maker) whose authority it recognizes. Persons with the authority under the HCCA to make substitute decisions for incapable persons include, in ranked order of authority, the incapable person’s guardian (where the grant of authority includes health-care decision-making), a specifically authorized substitute decision-maker (where the grant of authority includes health-care decision-making), a representative appointed and authorized by the CCB, the patient’s spouse, a parent (or parental substitute) or child, a sibling, or other relative.67 Substitute decision-makers can only provide or withhold consent for an incapable person where they themselves are available, willing, capable, over 16 years of age and not otherwise legally barred from doing so.68 Their entitlement to information is the same as that enjoyed by capable persons who are consenting to treatment on their own behalf (see earlier),69 and this entitlement is not restricted by privacy legislation.70
Several limits on substitute decision-making are imposed by the HCCA. First and foremost, the substitute decision-maker must follow, where possible, the expressed wishes of the incapable person where these were made while the person was capable and at least 16 years of age. Where circumstances are otherwise, the substitute decision-maker is obliged to make decisions in the incapable person’s best interests.71 In determining these best interests, the HCCA requires the decision-maker to consider a variety of factors, including the values and beliefs held by the incapable person while capable, whether the treatment is likely to improve or stabilize the incapable person’s condition or well-being, the impact of forgoing treatment on the incapable person’s condition or well-being, the balance of benefit to harm associated with treatment, and whether there are less “restrictive” or “intrusive” alternative treatments that promise equivalent benefits.72
The HCCA provides special exceptions to its consent requirements when emergency treatment is needed. The HCCA defines an emergency as a situation where “The person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.”73
The HCCA allows treatment to be administered to incapable persons without consent, provided the physician is of the opinion that there is an emergency and that delaying treatment pending receipt of consent or refusal by a substitute will prolong the patient’s suffering or put the patient at risk of sustaining serious bodily harm.74 However, treatment can be continued only as long as the incapable person remains incapable, or as long as is reasonably necessary to obtain consent from the incapable person’s substitute decision-maker.75 Importantly, physicians are also authorized to disregard the refusal of consent by a substitute decision-maker if they are of the opinion that the statutory requirements for substitute decision-making (see above) have not been followed.76
Where the patient is capable, the HCCA allows treatment to be administered without consent provided that the physician believes that there is an emergency, the communication requisite for valid consent is impossible due to a language barrier or disability, reasonable efforts have been taken to enable communication, delay will prolong the suffering of the patient or put them at risk of sustaining serious bodily harm, and there is no reason to believe that the patient does not want the treatment.77 However, treatment may be continued only as long as it remains impossible, despite reasonable efforts, to conduct the communication requisite for obtaining valid consent by the capable person.78
Finally, whether the patient is capable or not, physicians are not to administer treatment where they have reasonable grounds to believe that the patient expressed a wish to refuse consent to treatment while capable and 16 years of age or older.79
The Consent and Capacity Board
The HCCA also sets out the role and authority of the CCB. Of greatest interest for physicians are provisions relating to procedures for filing applications to the CCB, and for appealing findings made by it. The guidelines concerning when an application may be made to the CCB are many and varied.
Under the HCCA, persons who have been found incapable of consenting to treatment are entitled to apply to the CCB for a review of that finding,80 provided they do not have guardians or attorneys who are authorized to make treatment decisions on their behalf.81 The HCCA grants the CCB the power to uphold or reverse the determination as to capacity.82 The Supreme Court has ruled that in making these determinations, the CCB “is to adjudicate solely upon a patient’s capacity. The Board’s conception of the patient’s best interests is irrelevant to that determination … ‘[a] competent patient has the absolute entitlement to make decisions that any reasonable person would deem foolish.’”83
The HCCA also entitles incapable persons over 16 years of age to apply to the CCB for the appointment of a substitute decision-maker,84 provided they do not have guardians or attorneys who are authorized to make treatment decisions on their behalf.85 It also entitles would-be substitute decision-makers to apply to the CCB for their own appointment,86 again provided that the incapable person does not have a guardian or attorney who is authorized to make treatment decisions.87
Where the CCB makes an appointment, it is entitled to authorize the decision-maker to make decisions on the incapable person’s behalf in respect to the proposed treatment, to other treatments that it specifies or to treatment of any kind.88 In making appointments, the HCCA provides that the CCB must be satisfied that the incapable person does not object; that the proposed substitute consents to their appointment, is at least 16 years of age and capable; and that the appointment is in the incapable person’s best interests.89 The CCB also has the power to terminate the appointment of a substitute decision-maker where the incapable person or substitute so requests, where the substitute is no longer capable, where so dictated by the best interests of the incapable person, or where the incapable person has a guardian or personal attorney who is authorized to make treatment decisions.90
Importantly, the HCCA allows a physician or substitute decision-maker to apply to the CCB for directions in cases where the incapable person has expressed a wish with respect to the treatment, but the wish is unclear, not clearly applicable or not clearly made when the person was capable or over 16 years of age.91 When a physician intends to bring such an application, the HCCA requires them to notify the substitute decision-maker of that fact.92 The CCB is entitled to give directions subsequent to the application.93
The HCCA also entitles physicians and substitute decision-makers to apply to the CCB for a ruling entitling the substitute to consent to treatment in departure from the wishes expressed by the incapable person while capable and of age.94 As before, when the physician intends to bring such an application, the HCCA requires them to notify the substitute decision-maker of that fact.95 The CCB may grant the permission sought where it is satisfied that the incapable person would probably grant consent in the circumstances due to advances in treatment options since the wish was expressed.96
Finally, the HCCA allows physicians to apply to the CCB for a ruling to determine whether substitute decision-makers have complied with their statutory duties (detailed earlier) in exercising their authority.97 Where necessary, the CCB has the power to institute its own decision as opposed to that of the substitute.98 It is also empowered to give directions to the substitute decision-maker.99 If the substitute does not comply with these directions within the time specified by the CCB, their decision-making authority is lost.100
Parties to any of the above applications are entitled to appeal rulings of fact or law made by the CCB to a court.101 Notice must be given to the other involved parties and the CCB within seven days of receipt of the decision being appealed.101 The court hearing the appeal is granted the authority to exercise all of the powers of the CCB, to substitute its opinion for those of physicians, substitute decision-makers or the CCB, and to refer the matter, with directions, back to the CCB for rehearing.103
- Canadian Medical Protective Association. Consent: a guide for Canadian physicians. 3rd edition. Ottawa: Canadian Medical Protective Association; 1996.
- College of Physicians and Surgeons of Ontario. A guide to the Health Care Consent Act. Toronto: College of Physicians and Surgeons of Ontario; 1996.
Ontario statutes do not refer to “advance directives” or “living wills,” terminology familiar from medical ethics’ debates in the United States. Both the HCCA and the Substitute Decisions Act (SDA)104 do, however, recognize a legal instrument called a “power of attorney for personal care.” They also grant significance to previously expressed wishes of presently incapable persons (see the previous section). There are important differences between advance directives, living wills and powers of attorney; the reader should be mindful that these instruments are different, while recognizing that the power of attorney for personal care can be used to achieve substantially the same objectives as advance directives or living wills. The basic objective underlying all of these instruments is to empower people by giving them some measure of control over treatment decisions that will need to be made in the event they should become incapable.
Provisions from both the HCCA and the SDA govern the formation and execution of powers of attorney for personal care. The reader should particularly review this primer’s earlier sections on the HCCA provisions relating to determination of capacity, the exercise of substitute decision-making authority and emergency treatment. Here, we provide an overview of the provisions of the SDA relating to the formation of powers of attorney for personal care.
A power of attorney for personal care is an instrument through which one person grants another the legal authority to make decisions on their behalf in the event they should become incapable. The “personal care” matters over which authority may be extended are broad and include decisions relating to health care. Accordingly, the SDA defines incapacity for the purposes of personal care broadly. Under the SDA, a person is deemed incapable of personal care where the person is not able to appreciate the reasonably foreseeable consequences of, or to understand information relevant to, a decision regarding health care, nutrition, clothing, hygiene or safety.105 This definition dovetails nicely with the definition of capacity contained in the HCCA, whereby capacity is the ability “to understand the information that is relevant to making a decision … [and] to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”106
The SDA recognizes the right of a capable person to give another person a written power of attorney for personal care.107 It provides that a person is capable of giving or revoking a power of attorney for personal care where they have the ability to understand whether the proposed attorney has genuine concern for their welfare, and where they appreciate that they may need an attorney to make decisions on their behalf.108 Where the person was capable in this specific sense (i.e., regardless of their capacity for personal care), the power of attorney is valid.109 Importantly, physicians providing care to the incapable person in return for compensation are forbidden from acting as their attorney under a power of attorney, save where the incapable person is their spouse, partner110 or relative.111 The written power of attorney must be witnessed by independent two parties to be valid,112 but it need not take any particular form.113 The SDA provides that, in respect of consent to treatment, the power of attorney is effective in accord with the relevant provisions in the HCCA (see earlier).114
The SDA also contains restrictions on the exercise of the power of attorney. Most importantly, the SDA provides that the power of attorney is subject to any conditions or instructions imposed in the written document conferring the power.115 Other important restrictions on the exercise of the power of attorney relate to the use of force. The SDA provides that a power of attorney can make or revoke an express allowance for the use of force by an attorney. The SDA details the types of authorization to use force that one might find in a power of attorney. They include provisions enabling an attorney to use reasonable and necessary force to determine capacity under the HCCA and capacity for personal care under the SDA, to take the person subject to the power to any place for treatment, and to admit and restrain the person to that place for the purposes of administration of treatment.116 Like any other provision, these provisions are subject to any conditions contained in the power of attorney.117
Provisions allowing the use of force are ineffective unless accompanied by a special statement by the person subject to the power indicating that they understand the implications of the provision.118 This must be supported by a statement from an independent assessor, confirming and explaining that the person was capable of personal care at the time of assessment and of understanding the implications of the power being granted to the attorney.119 Revocation of an express authorization to use force is effective only when supported by a statement from an independent assessor, confirming and explaining that the person is capable of personal care.120
The SDA details the duties of attorneys for personal care. First and foremost, the SDA provides that all of the powers and duties of the attorney must be performed diligently and in good faith.121 The attorney must also explain their powers and duties to the incapable person.122 The SDA expressly states that attorneys must abide by applicable provisions of the HCCA in exercising their powers in circumstances to which the HCCA applies (e.g., consent to treatment).123 As such, the attorney must make decisions, where possible, according to the express wishes of the incapable person made while the person was capable and at least 16 years of age. Where circumstances are otherwise, the attorney is obliged to make decisions in the incapable person’s best interests.124 In determining these best interests, the attorney must consider a variety of factors, including the values and beliefs held by the incapable person while capable, whether the treatment is likely to improve or stabilize the incapable person’s condition or well-being, the impact of forgoing treatment on the incapable person’s condition or well-being, the balance of benefit to harm associated with treatment, and whether there are less “restrictive” or “intrusive” alternative treatments that promise equivalent benefits.125
The attorney is also bound by a range of other duties, including obligations to keep a record of decision(s) made on the incapable person’s behalf,126 encourage participation in decision-making by the incapable person, foster regular contact between the incapable person127 and family and friends,128 consult with caregivers and supportive family and friends who are in regular contact with the incapable person,129 foster the independence of the incapable person,130 adopt the least restrictive or intrusive course of action,131 and avoid the use of confinement, monitoring devices, and physical and chemical restraints, save where these are essential to prevent serious bodily harm to the incapable person or others, or where they allow the incapable person greater freedom or enjoyment.132
Finally, the SDA entitles a guardian, attorney, dependent, public guardian or any other person with leave of the court133 to apply to the court for directions on any matter in respect of the power of attorney.134 The court is granted broad powers to give any direction it considers to be for the benefit of the incapable person and consistent with the SDA.135
- Ontario Ministry of the Attorney General. A guide to the Substitute Decisions Act. Toronto: Queen’s Printer for Ontario; 2000. Available from: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/pgtsda.pdf.
The aim of this section is to provide the reader with an overview of patients’ statutory rights of privacy, access and accuracy in relation to their personal health information (PHI). These rights are protected or realized through the imposition of a range of duties on a range of people, including physicians, in connection with their collection, use and disclosure of PHI. The issue is complicated somewhat by lingering questions concerning the applicability of the federal Personal Information Protection and Electronic Documents Act (PIPEDA)136 to health professions. At the time of writing, it appears that PIPEDA does not apply to health professionals who are handling PHI in Ontario, due to the fact that Ontario has enacted legislation providing protection that is substantially similar to that provided under PIPEDA.137 Accordingly, we review here only key provisions of Ontario’s Personal Health Information Protection Act138(PHIPA).
Many provinces have not developed legislation dealing specifically with health information.139 Readers from those provinces should therefore be mindful that PIPEDA may apply to the collection, use and disclosure of PHI in health-care settings in their province. They should also be mindful that there are some significant differences in rights accorded under PHIPA and PIPEDA.140
Physicians, PHIPA and PHI
The purposes of PHIPA include: protection of the privacy of PHI through the establishment of rules regarding its collection, use and disclosure; recognition of individuals’ rights of access to their PHI; and recognition of individuals’ right to correct or amend records containing PHI.141 PHIPA also provides an independent complaints procedure and remedies for contravention of the rights it recognizes.142
Physicians are subject to PHIPA under the definition of “health-information custodian” (HIC). They are expressly named as HICs in PHIPA, and clearly fall within the definition of HICs as persons who have “custody or control of PHI as a result of or in connection with performing …[their] powers or duties.”143 Persons who work for HICs and who have access to PHI (e.g., nurses, clerical staff) are deemed “agents” of HICs under PHIPA.144 PHIPA entitles physicians to designate a contact person who is responsible for meeting their obligations under PHIPA, informing agents of their responsibilities and fielding inquiries from the public.145
PHI is defined under PHIPA to include identifying information about an individual, in oral or recorded form, relating to: their physical or mental health (including family history); the provision of health care (including the name[s] of provider[s]); plans of service for long-term care; payments or eligibility for health care; information relating to specimens, tissues or organ donation, and test or exam results; health numbers; and the identity of any substitute decision-maker.146 Non-identifying information falls outside the bounds of PHIPA. Information is identifying under PHIPA where it either identifies the individual or it is reasonably foreseeable that it could be used to identify the individual, either alone or in combination with other information.147 Non-identifying information that is kept in records containing identifying information is counted under PHIPA as PHI.148
PHIPA protects patients’ PHI in part by setting out a range of information practices that HICs are bound to follow.
- Firstly, HICs are obliged to take reasonable steps to ensure that a patient’s PHI is accurate, complete and up-to-date to the extent necessary given its intended use. They are also obliged to take reasonable steps to ensure that any PHI disclosed to others is accurate, complete and up-to-date, or to clearly communicate its deficiencies in this respect to the recipient.
- Secondly, HICs are obliged to take reasonable steps to ensure that PHI in their custody is secure against theft, loss, unauthorized use or disclosure, and unauthorized copying, modification or disposal. Where information is lost, stolen or subject to unauthorized access, HICs are required to promptly notify the patient.
- Thirdly, HICs must ensure that records in their custody containing PHI are kept, transferred and disposed of in a secure manner.154
- Finally, in order to ensure accountability and openness, HICs must post a public notice describing their information practices, providing contact information, describing procedures for accessing or correcting PHI and describing procedures for making a complaint under PHIPA.155 HICs are obliged to promptly record and notify individuals of cases where PHI is used or disclosed without consent in a manner outside the scope of the information practices described in the public notice.156
Consent, Capacity and Substitute Decision-Making in Relation to PHI
PHIPA also contains consent requirements in relation to the collection, use and disclosure of PHI. PHIPA specifies that for consent to be valid it must be given by an individual in an informed, specific and free manner.157 Consent is informed if it is reasonable in the circumstances to believe that the individual knows the purposes for the collection, use or disclosure of the information, and that consent may be withheld.158 Importantly, consent can generally be express or implied under PHIPA,159 but it must be express where disclosure is to be made to a person who is not a HIC, or where disclosure is not related to the provision of health care.160
PHIPA also contains provisions pertaining to capacity and substitute decision-making. It provides that an individual is capable of consenting to the collection, use or disclosure of PHI where he/she is able to understand the relevant information and to appreciate any reasonably foreseeable consequences of the decision to consent or not.161 It recognizes that capacity may change with time and with respect to distinct pieces of information.162 Importantly, that HICs are entitled to presume capacity, save where they have reasonable grounds to believe otherwise.163 Where HICs deem an individual to be incapable, they must explain the consequences of this determination to the individual; the individual retains the right to apply to the CCB for review the determination (see earlier).164
In respect of decision-making relating to the collection, use and disclosure of PHI, PHIPA provides that, for capable adults, consent may be obtained from the individual or an authorized adult substitute decision-maker.165 For children aged under 16 years, consent may be obtained from a parent, Children’s Aid or another authorized person, save where the information relates to treatment decisions that the child has made as allowed under the HCCA, or where it relates to counselling the child has participated in on their own under the Child and Family Services Act.166 Where a child under 16 years is capable, however, their decision prevails in the event of a conflict between the child and their parent(s) or other substitute decision-maker.167
For incapable adults, where the information relates to treatment, admission to a care facility or personal assistance services within the meaning of the HCCA, consent may be obtained from the substitute decision-maker recognized under the HCCA (see earlier).168 Otherwise, PHIPA recognizes that the following persons have substitute decision-making power, in ranked order of authority: the incapable person’s guardian (where the decision comes within their authority), a specifically authorized substitute decision-maker (e.g., attorney for personal care) where the decision comes within their authority, a representative appointed and authorized by the CCB, the patient’s spouse, a parent (or person acting with parental authority) or child, a sibling, or other relative.169 The individual who makes the substitute decision must be available, willing, capable, aged over 16 years (or a parent of the person) and not legally barred from doing so.170 Where the individual is deceased, consent should be obtained from the deceased’s trustee or other person responsible for the administration of their estate.171
PHIPA requires substitute decision-makers to consider a range of factors in deciding whether to consent, including the wishes, values and beliefs that the person holds, or held while capable, and would want to be reflected in any decision; the balance between expected benefits and possible harms; whether the collection, use or disclosure of the information is truly necessary in light of its purposes; and whether the collection, use or disclosure is needed to meet any legal obligation.172 Where a HIC is of the view that the substitute decision-maker has not complied with these standards, he/she is entitled to apply to the CCB for review, subsequent to which the CCB can issue directions or substitute its own decision for that of the substitute decision-maker.173
Collection, Use and Disclosure of PHI
PHIPA contains a range of rules governing the collection, use and disclosure of PHI. General rules include, first and foremost, the requirement that HICs refrain from collection, use or disclosure of PHI, except where consent has been obtained and a lawful purpose is being served, or where PHIPA permits or requires collection, use or disclosure.174 PHIPA expressly forbids collection, use or disclosure of PHI where other information will suffice.175 It additionally requires HICs to collect, use or disclose no more PHI than is reasonably necessary in the circumstances.176 Where HICs collect PHI in a manner contrary to PHIPA, they are forbidden from using or disclosing it, save where compelled to do so by law.177
PHIPA contains several specific rules governing, respectively, collection, use and disclosure of PHI.
With respect to collection, PHIPA provides that physicians and other HICs may indirectly collect PHI about an individual where: the individual consents; the information is reasonably necessary for providing health care to the individual and accurate information cannot reasonably be directly collected in a timely way; information is collected from a person who is not a HIC for the purposes of research that has been approved by a research ethics board, save where prohibited by law; the Information and Privacy Commissioner has authorized collection; the person disclosing the information is permitted or required to do so by law; or the HIC is permitted or required by law to collect it.178 PHIPA also allows direct collection of PHI without consent where this is reasonably necessary for the provision of health care and consent cannot reasonably be obtained in a timely manner.179
With respect to use, PHIPA provides that HICs are permitted to use PHI without consent: for the purpose for which the information was collected or created, save where the individual expressly instructs otherwise; for a purpose permitted or required by law; for quality improvement or control purposes, including risk and error management; for health-care education purposes; for obtaining payment, or processing claims for payment, for provision for health care; or for research purposes approved by a research ethics board.180
With respect to disclosure related to the provision of health care, PHIPA provides that HICs may disclose PHI without consent: to selected other HICs (e.g., physicians, hospital administrators) where it is reasonably necessary for the provision or health care and it is not reasonably possible to obtain consent in a timely manner, save where the individual expressly instructs otherwise; to enable determination of funding or payment to the HIC for health-care provision; or in order to contact a relative, friend or potential substitute decision-maker where the individual is injured, incapacitated or ill and is unable to provide consent.181
The disclosure of PHI without consent is also permitted in a number of other situations, often marked by a pressing public interest in the disclosure. Most notably, disclosure is permitted without consent: for audit or accreditation procedures and public health purposes;182 where reasonably judged necessary to eliminate or mitigate a significant risk of serious bodily harm to a person or group of persons;183 for the purpose of determining capacity under PHIPA, the SDA, or the HCCA;184 to a college under the Regulated Health Professions Act for administration or enforcement purposes;185 for inspections or investigations under PHIPA or any other federal or Ontario statute;186 to an entity with approved privacy practices for the purpose of analyzing or compiling statistics in relation to managing, evaluating, monitoring or planning of the health-care system;187 to the Minister of Health for purposes of monitoring or verifying claims;188 or where otherwise required by law.189
Importantly, HICs are permitted to disclose PHI collected in Ontario to a person outside Ontario only if the individual consents, PHIPA permits it, the person to whom the information is disclosed performs a role comparable to that of a person in Ontario to whom PHIPA would permit disclosure, or it is reasonably necessary in connection with payments for health care provided to the individual.190 PHI about deceased individuals may be disclosed for purposes of identification, informing others of the death and surrounding circumstances, or for informing relatives about matters pertinent to their own health or that of their children.191
Rights of Access and Accuracy in Relation to PHI
Rules governing patient access to, and correction of, records containing their PHI are also provided under PHIPA.
PHIPA provides patients with a right of access to records of their PHI held by HICs.192 The right of access must be exercised by way of a written request submitted by the patient.193 Before granting access to the record or information, the HIC is required to take reasonable steps to verify the identity of the individual making the request.194
It is important to note that the right of access is not absolute. HICs are permitted to refuse requests that are frivolous, vexatious or made in bad faith.195 Furthermore, the right of access does not extend to records or information: that are subject to a legal privilege preventing access; where a court order or law bars access; where the record or information was created or collected primarily for use in an ongoing proceeding; where the record or information was created or collected in the course of an ongoing inspection or investigation; where granting access could reasonably be expected to result in a risk of serious physical harm to the individual (e.g., impairment of treatment or recovery) or another person; or where granting access could lead to the identification of a person who was either legally obliged to provide the information to the HIC, or who provided the information in confidence.196 However, where PHI is severable from information that would otherwise justify withholding access, the physician is obliged to recognize the patient’s right of access to the severed information.197
In response to a legitimate request for access, HICs are obliged to make the record available for examination, to provide a copy on request and, if reasonably practical, to explain any terms, codes or abbreviations.198 Where a reasonable search does not turn up the information or record, the HIC must provide the individual with a written notice explaining that it does not exist or cannot be found.199 Generally, where the HIC refuses access on the basis of PHIPA, they must provide the individual with a written notice of that fact together with accompanying explanation of the reasons for the refusal and the entitlement to register a complaint.200 However, where access is refused on the basis of an ongoing proceeding or investigation, or on the basis of potential for serious bodily harm to the individual or another, HICs should give notice stating their refusal to confirm or deny the existence of any record, and explaining the individual’s entitlement to register a complaint.201
Where an individual has been granted access to records containing their PHI and finds them incorrect or incomplete, PHIPA recognizes the individual’s right to request that they be completed or corrected.202 HICs are obliged to grant requests where they are satisfied that the record is incorrect or incomplete, and the individual provides the information necessary for the required completion or correction.203 HICs are permitted to refuse requests that are frivolous, vexatious or made in bad faith, provided they give the individual notice explaining the reasons for refusal and their entitlement to file a complaint with the Information and Privacy Commissioner.204 Where notice of refusal is given to the individual, the notice must explain that the individual is entitled to: prepare a concise statement of the disagreement, explaining the correction the HIC has refused to make; require that the HIC attach the statement to their records and to disclose it whenever related PHI is disclosed by the HIC; and require the HIC to notify anyone who would have had to be notified if the request had been granted.205
The Complaints and Enforcement Process
Where a provision of PHIPA has been violated, a complaint may be brought to the Information and Privacy Commissioner.206 The Commissioner is authorized to require that efforts be made to reach a settlement and to appoint a mediator for that purpose.207 Where no settlement can be reached, the Commissioner may review the matter.208 The Commissioner has extensive powers of investigation for purposes of completing the review.209
Upon review, the Commissioner has the power to order that access to PHI be granted, that correction(s) to PHI be made, that HICs fulfill their duties under PHIPA, that collection, use or disclosure of PHI be ceased, that PHI be destroyed, or that information practices be implemented, changed or halted.210 Decisions on questions of law made by the Commissioner can be appealed to a court,211 which has the power to issue directions to the Commissioner and to vary or set aside an order made by the Commissioner.212 Where rights of appeal against an order have been exhausted, or where a person has been convicted of an offence, the complainant is entitled to bring a court action for damages for any resulting harm.213 PHIPA also provides for financial penalties of up to $50,000 upon conviction for an offence under PHIPA.214
- Cavoukian A, Information and Privacy Commissioner of Ontario. A guide to the Personal Health Information Protection Act. Toronto: Office of the Information and Privacy Commissioner of Ontario; 2004. Available from: https://www.ipc.on.ca/wp-content/uploads/Resources/hguide-e.pdf.
- Ontario Medical Association. Physician privacy toolkit: guide to the Ontario Personal Health Information Protection Act. Ottawa: Ontario Medical Association; 2004. Available from: https://www.ipc.on.ca/wp-content/uploads/Resources/hguide-e.pdf.
Physicians have a range of legal obligations to patients associated with their provision of patient care, and many of these have been reviewed in the preceding sections. But physicians also have legal obligations to the state, associated with their critical role in assisting state authorities to protect and promote public health. At times, physicians’ obligations to the public are in tension or outright conflict with the rights of their patients and, indeed, the rights of other individuals.215 Public health statutes detail the obligations of physicians with respect to public health. In the course of so doing, they attempt to strike an appropriate balance between protection of the public interest and respect for the rights of individuals.
Public health protection is currently subject principally to provincial/territorial legislative intervention. Here, we review Québec’s relatively recent and comprehensive Public Health Act (PHA).216 Readers should also be aware that significant changes are on the horizon at federal and provincial levels in the wake of several recent public health scares, especially SARS.217 As the existing legal and policy frameworks governing public health protection continue to be debated, scrutinized and reviewed, physicians should be aware that their obligations in relation to public health are likely to continue to evolve.
Like the equivalent statutes of other provinces, Québec’s PHA confers a range of powers on the province’s public health authorities (e.g., medical officers, public health directors) and ministers of health, enabling them effectively to identify, prevent, monitor and manage threats to public health. They also oblige physicians other health professionals to provide assistance to public health authorities and to obey their directions in certain circumstances. Here, we review four key matters with respect to which the PHA confers powers and imposes obligations constraining the conduct of physicians:
- mandatory reporting of infectious diseases and other public health threats
- mandatory treatment and prophylaxis
- cooperation with ongoing surveillance and epidemiological investigations
- public health emergencies
Mandatory Reporting of Infectious Diseases and Other Public Health Threats
The PHA grants public health authorities powers in relation to the monitoring of public health to enable them effectively to identify, monitor and evaluate public health threats. Some of these powers require health professionals to set aside their duties of confidence to patients in reporting actual or potential public health threats.218 For example, the PHA requires physicians and nurses to report to public health authorities any “unusual clinical manifestation” that they believe to be associated with the administration of a vaccination.219 The PHA also requires physicians to report cases of living or deceased patients who they diagnose or observe who present clinical signs of an “intoxication, infection or disease” that is among those listed in a schedule published by the Minister of Health. The conditions listed are “medically recognized as capable of constituting a threat to the health of a population and as requiring vigilance on the part of public health authorities or an epidemiological investigation.”220 Finally, the PHA requires physicians to report any and all suspected public health threats,221 other than sexually transmitted agents. When physicians report these suspected threats, they are not permitted to disclose personal or confidential information until the public health authorities have demanded the information in accordance with their powers of investigation.222
Mandatory Treatment and Prophylaxis
Significantly, the PHA grants public health authorities powers in relation to the treatment and prevention of certain conditions in order to enable them to effectively prevent, manage or contain public health threats. In the case of patients who present with certain contagious conditions that, left untreated, could pose a threat to public health, physicians are obliged to administer compulsory treatment or to refer such patients to an institution able to provide the required care.223 The conditions for which treatment is mandatory are listed by the Minister of Health. The list is to include only “contagious diseases or infections that are medically recognized as capable of constituting a serious threat to the health of a population and for which an effective treatment that would put an end to the contagion is available.”224 Where patients suffering from a listed condition refuse examination or treatment, the physician is obliged to notify public health authorities who, subsequent to an investigation, may apply for a court order compelling the patient to accept the examination or treatment.225
Where the Minister of Health determines it necessary, physicians are also required to administer prescribed prophylactic measures (including isolation) to members of target or general populations to prevent the spread of contagious diseases or conditions that represent a serious threat to public health. Where people refuse to comply with the required prophylactic measures, the physician is obliged to notify public health authorities who, subsequent to investigation, may apply for a court order compelling the patient to accept them.226 Isolation must be terminated despite a court order where the attending physician, in consultation with the public health authorities, certifies that the risk of contagion associated with the isolated person has ended.227
Cooperation with Ongoing Surveillance and Epidemiological Investigations
The PHA also grants public health authorities considerable powers in relation to the investigation of specific public health threats and ongoing surveillance of population health.
With respect to ongoing surveillance, the PHA grants the Minister of Health the power to require physicians to provide non-identifiable information necessary for a public health surveillance plan.228 In relation to epidemiological investigations of public health threats, the PHA grants public health authorities the power to direct physicians and institutions to contribute their resources where necessary for effective and timely investigation.229 Physicians are obliged to respect and often facilitate and assist public health authorities in the exercise of their investigative powers, including those in relation to: access to and inspection of facilities and documents, regardless of their confidential nature; examination of plants, animals or possessions; removal, communication or transmission of information and samples, regardless of their confidential nature; medical examinations of persons; and obtaining blood or other bodily samples from persons by consent or court order.230
Physicians and other members of health-care institutions are also obliged to comply with orders relating to institutional practices and facilities emanating from investigations conducted by public health authorities.231 Physicians and all others are additionally required to comply with public health authorities’ orders of: closure, evacuation, disinfection or decontamination of premises; time-limited orders of isolation; cessation of an activity or adoption of special security measures in relation to it; destruction or treatment of animals, plants or other things; and any other measure deemed necessary to prevent, minimize or eliminate the public health threat.232
Public Health Emergencies
The PHA grants the Minister of Health special powers in relation to the management of public health emergencies. Several of these powers may be exercised so as to constrain the conduct of physicians. The Minister of Health may, in the event of a public health emergency,233 exercise (or direct public health authorities to exercise) any of the powers relating to compulsory treatment and investigation granted to public health authorities, in which case the obligations of physicians are as detailed above.234
The Minister may also direct physicians and institutions to contribute their resources to a public health emergency response.235 Physicians and all others must further comply with the Minister’s additional emergency powers to: order compulsory vaccination of any or all of the population; order the closing of public facilities; order the communication or handing over of any document or information held by any person, government department or institution (regardless of its confidential nature); prohibit or restrict entry to an affected area and order evacuations from same; order the provision of health services; and order any other measure deemed necessary for the protection of the health of the population.236 Physicians should note that the declaration of a public health emergency does not, of itself, prevent public health authorities from exercising their own powers reviewed above during the period of the emergency.237
Penalties for Non-Compliance
Physicians and others who fail to comply with the requirements of the PHA face liability under the PHA. Fines (ranging from $600 to $6,000, and doubled for subsequent offences) may be imposed for failure to file the reports or notices mentioned above,238 obstruction of the exercise of powers by the Minister of Health and public health authorities (e.g., refusal to obey an order, failure to provide access to or communicate information)239 and the provision of false, incomplete or misleading information.240
- Gostin LO, Bayer R, Fairchild AL. Ethical and legal challenges posed by severe acute respiratory syndrome: implications for the control of severe infectious disease threats. Journal of the American Medical Association 2003; 290: 3229–37.
- National Advisory Committee on SARS and Public Health. Learning from SARS — renewal of public health in Canada (the Naylor Report). Ottawa: Health Canada; 2003. Available from: http://www.phac-aspc.gc.ca/publicat/sars-sras/naylor/.
Medicine is a regulated profession. The regulations governing the profession specify criteria for licensing of physicians and, importantly, provide for assessments of professional competence and conduct. Like other regulated professions (e.g., law), medicine is self-regulated. Provincial colleges of physicians are granted extensive powers of enforcement and discipline in relation to the provincial regulations governing the profession. The fact that medicine is regulated reflects the public importance of the profession and its services. The fact that it is self-regulated reflects the trust placed in members of profession to ensure that their colleagues serve the public in a competent, honest and appropriate manner. In undertaking to regulate themselves, members of the medical profession assume a joint responsibility for protecting the trust reposed in the profession by the public.
In order to meet their individual and joint responsibilities for the profession, physicians should be aware of procedures for the enforcement of professional standards. Here, we review the provisions of Alberta’s Medical Profession Act (MPA)241 relating to assessments of competence and conduct by the College of Physicians and Surgeons of Alberta (CPSA). We do not review provisions relating to licensing where these are unrelated to standards of competence and conduct, nor do we review provisions relating to the composition, governance and function of the CPSA where unrelated to enforcement issues.
The MPA establishes a physician performance committee (PPC) at the CPSA,242 which is charged with assessing the standard of care provided by physicians registered to practice in the province.243 The PPC is permitted to assess the performance of a physician once every five years.244 The MPA provides the PPC with important investigative powers to be used in conducting individual assessments, including the power to enter and inspect the place of practice of the physician, and to require the physician to produce any documents relating to patient care that are in their possession or control.245
Subsequent to the individual assessment, the PPC is obliged to prepare a report of its findings along with directions for further action. Where the PPC is satisfied that the physician’s performance meets standards of competent care, it will direct that no further action be taken.246 Where it is concerned about the physician’s performance, it may direct that the physician participate in a more focused individual assessment or take some specific (e.g., corrective) action,247 or refer the matter to the investigation chair (see later).248 Physicians are entitled to appeal a direction made by the PPC to the CPSA’s Appeal Committee,249 which is authorized to confirm, vary or reverse the direction.250 Physicians are bound to comply with the decisions of the Appeal Committee.251
The investigation chair is also entitled to investigate allegations that registered physicians have engaged in unbecoming conduct, either in their professional capacity or otherwise. The committee investigating the allegation is granted wide discretion in determining whether the conduct in question is unbecoming. The MPA states simply that “Any matter, conduct or thing that in the judgment of the investigating committee … is such as to be inimical to the best interests of the public or the profession, whether or not the act or conduct is disgraceful or dishonourable, is unbecoming conduct.”252 A physician cannot, however, be found guilty of unbecoming conduct solely by virtue of employing non-traditional or unconventional methods and therapies, save where these pose risks to the safety of patients that are unreasonably high in comparison to those posed by conventional methods or treatments.253
Investigations of Professional Competence and Conduct
The MPA requires the CPSA’s council to annually appoint one of its members to sit as the investigation chair.254 The MPA requires the investigation chair to review any matter brought to their attention by the Registrar or in any other manner where a registered physician: has been convicted of an offence punishable by more than one year’s imprisonment; is alleged to be guilty of criminal or unbecoming conduct, in a professional capacity or otherwise; is alleged to be incapable or unfit to practice, or to be suffering from a condition that would make their continued practice a danger to the public; is alleged to display a lack of skill or judgment in practice; or is alleged to have contravened a requirement of the physician performance (i.e., competence) section of the MPA.255 Subsequent to completing their review, the investigation chair will direct that no further action be taken, that a preliminary investigation be held by the registrar of the CPSA (or the registrar’s appointee) or that the matter be pursued by an investigating committee.256
The MPA authorizes those conducting a preliminary investigation to require the registered physician, and any other registered physician or person, to produce any documents or things in their possession or control, and to require them to attend the investigation proceedings.257 Upon receipt of a report from a concluded preliminary investigation, the investigation chair will direct that no further action be taken, that the matter be pursued by a complaints committee reporting to the investigation chair or that the matter be pursued by an investigating committee.258 The complaints committee does not itself hear evidence, but is authorized to review all documents and written submissions from the preliminary investigation, subsequent to which it must make a recommendation regarding further action to the investigation chair.259 The investigation chair will then either direct that no further action be taken or that the matter be pursued by an investigating committee.
When a matter has been referred to an investigating committee by the investigation chair, the physician whose competence or conduct is under investigation will receive a notice to that effect (with particulars) from the registrar.260 The investigation chair may also, at their discretion, direct the registrar to suspend (with notice) the physician’s registration to practice, pending the outcome of the investigation.261
The investigating committee is charged with investigating the facts relevant to the competence or conduct of the physician under investigation.262 Physicians under investigation are entitled to receive notice of meetings of the investigating committee at which it plans to take evidence on the matter.263 Physicians under investigation have a right to counsel,264 and all proceedings before the investigating committee must be held in private.265
The investigating committee is authorized to receive testimony on the matter before it in any manner it considers proper.266 While it is not bound by the laws of evidence applicable to court proceedings, the committee may not order a physician to be struck from the register solely based on affidavit evidence.267 The MPA also grants the investigating committee the power to compel testimony from the physician under investigation.268 All witnesses may be examined under oath on all matters relevant to the investigation, and witnesses are not to be excused from answering questions on the grounds that their answer might subject them to criminal liability, civil liability, punishment under the MPA or prosecution under any statute.269 That said, answers given that might incriminate a witness or expose them to civil liability may not be used against them in civil proceedings, in proceedings under the MPA or in proceedings under other acts, save for the purpose of prosecuting them for perjury.270
Where witnesses have received notice from the CPSA requiring their attendance or the production of documents,271 and they fail to attend or to produce the documents (or refuse to give an oath or to answer a question), the CPSA may apply to a court to have them arrested or the documents seized.272 If the physician under investigation fails to attend despite receipt of notice, the investigating committee may proceed with the investigation and make its report without providing the physician further notice.273 It may also find the non-attendance of the physician to be unbecoming conduct within the meaning of the MPA.274
If, at the conclusion of its investigation, the investigating committee finds the physician guilty of incompetence or unbecoming conduct, it may make recommends to the CPSA council regarding punitive measures and fines (see later).275,276 Upon receipt of the report and recommendations of the investigating committee, along with its reasons and the evidence before it, the CPSA council will consider these submissions and hear any representations made by or on behalf of the physician, and by or on behalf of counsel representing the committee.277 In its deliberations, the council is entitled to grant adjournments or reserve judgment, grant leave for the presentation of further evidence, draw inferences of fact and make any finding it deems ought to have been made by the Committee, and refer the matter back to the investigating committee for further consideration.278 Finally, the council is obliged to issue a decision within a reasonable time frame upon the conclusion of the proceedings.279
Penalties for Professional Incompetence or Misconduct
Upon making a determination of incompetence or unbecoming conduct, the council may order that the physician be struck from the list of registered physicians, suspended for a period of up to 3 years, or reprimanded, or it may impose conditions or restrictions on the physician’s registration.280 Unless an appeal is filed, the council may give notice of these orders (save reprimands) to any person, body or institution to which it deems it to be in the public interest to do so.281 Finally, the council may recommend that the physician pay a fine of up to $1,000 for each allegation proved, pay for the costs of the investigation, proceedings or both in whole or in part, and be suspended in the event of a failure to pay said fines and/or costs.282
Physicians are entitled under the MPA to appeal the orders of the council at the Court of Appeal.283 They may also apply to CPSA counsel or a lower court for suspension of any punishment imposed upon them pending the outcome of the appeal.284 On hearing the appeal, the Court of Appeal is entitled to make any additional findings it deems ought to have been made, quash or confirm the finding of incompetence or unbecoming conduct, confirm or vary the punishment imposed, or to refer the matter back to the council for further consideration.285
- Donoghue v. Stevenson,  AC 562 (HL).
- Palsgraf v. Long Island Railroad Co. 162 NE 99 (NY CA 1928).
- Vaughan v. Menlove (1837), 132 ER 490 (CP); ter Neuzen v. Korn (1995), 127 DLR (4th) 577 (SCC).
- Bolton v. Stone,  AC 850 (HL).
- Trimarco v. Klein 436 NE 2d 502 (NY CA 1982); ter Neuzen v. Korn, supra note 3.
- The question is more vexing where more tenuous claims of injury are advanced, for instance, claims of “wrongful birth” or “wrongful life.” Important questions arise concerning whether “wrongful birth” is an injury, and if so, who has been injured (the parent or child). See: Nelson E, Robertson G. Liability for wrongful birth and wrongful life. ISUMA: Canadian Journal of Policy Research 2001; 2: 102-5.
- Page v. Smith,  2 All ER 736 (HL).
- Blackstock v. Foster,  SR (NSW) 341 (SC).
- Barnett v. Chelsea & Kensington Hospital Management Committee,  3 All ER 1068 (QBD).
- Lambton v. Mellish,  3 Ch. 163 (Ch. D).
- McGhee v. National Coal Board,  3 All ER 1008 (HL); Wilsher v. Essex Area Health Authority,  1 AC 1074 (HL).
- Athey v. Leonati (1996), 140 DLR 4th 235 (SCC).
- Farrell v. Snell,  2 SCR 311 (SCC).
- Negligence Act RSO 1990, c. N.1.3.
- Malette v. Shulman (1990), 67 DLR (4th) 321 (Ont. CA).
- Reibl v. Hughes (1980), 114 DLR (3d) 1 (SCC).
- Affirmed in Hollis v. Dow Corning Corp.,  4 SCR 634 and Arndt v. Smith,  2 SCR 539.
- Arndt, ibid.
- The plaintiff must, however, provide this proof because fiduciary obligations will not be imposed on physicians in all relationships in which they act in a professional capacity. For example, a fiduciary relationship is not established when a doctor provides an examination of a plaintiff in a personal injury case at the instigation of the defendant: Bellamy v. Johnson (1992), 8 OR (3d) 591 (Ont. CA). The doctor–patient relationship is established at law “when the doctor agrees to treat the patient who has expressly or impliedly requested the services” (Picard EI, Robertson GB. Legal liability of doctors and hospitals in Canada. 4th edition. Toronto: Carswell; 2007:7-8).
- Norberg v. Wynrib,  92 DLR (4th) 449 at 485-6.
- Ibid. at 486.
- Finn PD. Fiduciary obligations. Sydney: The Law Book Company; 1977: 9.
- See case law following upon Norberg v. Wynrib, supra note 20.
- Harpum C. Fiduciary obligations and fiduciary powers-where are we going? In: Birks P, editor. Privacy and loyalty. Oxford: Oxford University Press; 1997: 145-68.
- Picard and Robertson, supra note 19 at 6.
- This is pursuant to article 1458 CCQ where the relationship is characterized as contractual, and article 1457 CCQ where the relationship is characterized as extra-contractual.
- The right to inviolability set out in the Québec Charter of Human Rights and Freedoms, RSQ c. C-12, s.1 [Québec Charter] protects this right to be free from physical interference absent the prior issuance of consent.
- Arts. 10 and 11 CCQ.
- Code of Ethics of Physicians, RRQ c. M-9, r. 4.1, ss. 28-9 [Code of Ethics].
- Drolet v. Parenteau,  RJQ 689 (CA).
- See art. 13 CCQ. Note, too, that the duty to rescue that is imposed upon all persons in Québec by s.2 of the Québec Charter would also impose an obligation on a physician to treat in an emergency situation, even absent any prior communication of consent, if the patient’s life is in danger. Where, however, there are indicators that the patient would have refused the emergency intervention, proceeding to treat in the face of this could amount to fault. In this connection, consider Malette v. Shulman, supra note 15, which, although a common law authority, centres on the principles of self-determination, inviolability, and autonomy in medical treatment contexts, and these tenets apply equally in Québec.
- Arts. 19-20, 22-25 CCQ.
- Arts. 14-18 CCQ.
- Lapointe v. Hôpital Le Gardeur,  1 SCR 351.
- Goupil v. Centre hospitalier universitaire de Québec,  RJQ 1814 (CS). See also ter Neuzen v. Korn, supra note 3, which, although a common law decision and not a binding authority in Québec civil law, has been referred to and followed in several Québec judgments. This is likely because ter Neuzen is itself inspired by two important civil law decisions: Lapointe v. Legardeur, ibid. and Roberge v. Bolduc,  1 SCR 374.
- Code of Ethics, s.32.
- Code of Ethics, s.33.
- Medical Act, RSQ, c. M-9, s.42.
- Code of Ethics, s.20.
- Code of Ethics, s.20(5).
- Art. 1607 CCQ [emphasis added].
- Québec Charter of Human Rights and Freedoms, s.49.
- Art. 1621 CCQ.
- Moumdjian v.. Aubin, 2006 QCCA 1264. The Court of Appeal here was citing with approval a passage from the trial decision in this case (Aubin v. Moumdjian, 2004 CanLII 11982 (QC CS) at para. 18).
- Laferrière v. Lawson,  1 SCR 541.
- Art. 2849 CCQ.
- St-Jean v. Mercier, 2002 SCC 15 at para. 115.
- Khoury L. Uncertain causation in medical liability. Oxford: Hart Publishing; 2006: 45.
- Drolet v. Parenteau, supra note 30.
- Health Care Consent Act, 1996. SO 1996, c. 2, Sched. A. We do not review the independent provisions pertaining to consent to admission to care facilities and personal assistance services.
- Ibid. s.4(1).
- Starson v. Swayze,  1 SCR 722 at para. 78.
- Ibid. at para. 80.
- Supra note 50 at s.4(2-3).
- Supra note 52 at para. 77.
- Supra note 50 at s.5(1-3).
- Ibid. s.10(1).
- Ibid. s.10(2).
- Ibid. s.15.
- Ibid. s.16.
- Ibid. s.11(1).
- Ibid. s.11(3).
- Ibid. s.11(2).
- Ibid. s.11(4).
- Ibid. s.12.
- Ibid. s.14.
- Ibid. s.20(1).
- Ibid. s.20(2).
- Ibid. s.22(1).
- Ibid. s.22(2), specifically, Personal Health Information Protection Act, 2004. c. 3, Sched. A, s.84(7) (see below).
- Ibid. s.21(1).
- Ibid. s.21(2).
- Ibid. s.25(1).
- Ibid. s.25(2).
- Ibid. s.25(6), (8) & (9).
- Ibid. s.27.
- Ibid. s.25(3).
- Ibid. s.25(7) & (8).
- Ibid. s.26.
- Ibid. s.32(1).
- Ibid. s.32(2).
- Ibid. s.32(4).
- Supra note 52 at para. 72.
- Supra note 50 at s.33(1).
- Ibid. s.33(3).
- Ibid. s.33(2).
- Ibid. s.33(3).
- Ibid. s.33(5).
- Ibid. s.33(6).
- Ibid. s.33(8).
- Ibid. s.35(1).
- Ibid. s.35(1.1).
- Ibid. s.35(3).
- Ibid. s.36(1).
- Ibid. s.36(1.1).
- Ibid. s.36(3).
- Ibid. s.37(1).
- Ibid. s.37(3).
- Ibid. s.37(4).
- Ibid. s.37(6).
- Ibid. s.80(1).
- Ibid. s.80(2) & (3).
- Ibid. s.80(10).
- Substitute Decisions Act, 1992. S.O. 1992, c. 30.
- Ibid. s.45.
- Health Care Consent Act, supra note 50 at s.4(1).
- Substitute Decisions Act supra note 104 at s.46(1).
- Ibid. s.47(1) & (3).
- Ibid. s.47(2).
- “partner” is defined as: “either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives”.
- Ibid. s.46(3).
- Ibid. s.48(1), (2) & (4).
- Ibid. s.46(8).
- Ibid. s.49(1).
- Ibid. s.46(6) & (7). The reader should note that only where conditions or instructions are imposed is the power of attorney comparable to a living will or advance directive, in the sense of providing directions or instructions for substitute decision-making. Where the power of attorney is granted without conditions or instructions, the substitute decision-maker is free to use their discretion in making decisions for the incapable person, subject to the limits imposed by the HCCA (see above).
- Ibid. s.50(2).
- Ibid. s.50(3).
- Ibid. s.50(1).
- Ibid. s.50(1).
- Ibid. s.50(4).
- Ibid. s.66(1).
- Ibid. s.66(2).
- Ibid. s.66(2.1).
- Health Care Consent Act, supra note 50 at s.21(1).
- Ibid. s.21(2).
- Substitute Decisions Act, supra note 104 at s.66(4.1).
- Ibid. s.66(5).
- Ibid. s.66(6).
- Ibid. s.66(7).
- Ibid. s.66(8).
- Ibid. s.66(9).
- Ibid. s.66(10).
- Ibid. s.68(3).
- Ibid. s.68(1).
- Ibid. s.68(4).
- Personal Information Protection and Electronic Documents Act, 2000. S.C. 2000, c. 5.
- In particular, the Commissioner has said that “PIPEDA was never designed to address the intricacies of personal health information” and she “anticipate[s] seeing a final exemption order recognizing the substantial similarity of Ontario’s PHIPA to the federal PIPEDA, so that HICs covered by PHIPA will not also be subject to PIPEDA” (Cavoukian A, Information and Privacy Commissioner of Ontario. Commissioner’s PHIPA highlights: here’s what health professionals are asking about Ontario’s new health privacy legislation. Toronto: Office of the Information and Privacy Commissioner of Ontario; 2005).
- Personal Health Information Protection Act, 2004. S.O. 2004, C. 3, Sched. A.
- As of the date of writing, Alberta, Manitoba, and Saskatchewan have statutes specifically covering health information. Following the logic of the Ontario Information and Privacy Commissioner, it is arguable that PIPEDA does not apply in these provinces, provided that the provincial statutes in question provide protections substantially similar to those contained in PIPEDA. British Columbia and Québec have general privacy statutes with provisions applicable to the collection, use, and disclosure of health information. Other provinces and territories have general privacy statutes, but their applicability to health information is not clear.
- For instance, PIPEDA requires express consent to the collection, use, and disclosure of personal information, while, as detailed below, PHIPA allows selected collection, use, and disclosure of PHI absent express consent.
- Personal Health Information Protection Act, 2004, supra note 136 at s.1.
- Ibid. s.3(1)(1).
- Ibid. s.2.
- Ibid. s.15(1)-(4).
- Ibid. s.4(1).
- Ibid. s.4(2).
- Ibid. s.4(3).
- Ibid. s.10(1).
- Ibid. s.11(1).
- Ibid. s.11(2).
- Ibid. s.12(1).
- Ibid. s.12(2).
- Ibid. s.13(1).
- Ibid. s.16(1).
- Ibid. s.16(2).
- Ibid. s.18(1).
- Ibid. s.18(5); see also s.19(1).
- Ibid. s.18(2); see also s.20(2).
- Ibid. s.18(3).
- Ibid. s.21(1).
- Ibid. s.21(2) & (3).
- Ibid. s.21(4) & (5).
- Ibid. s.21(2)-(8).
- Ibid. s.23(1).
- Ibid. s.23(3).
- Ibid. s.23(1).
- Ibid. s.26(2).
- Ibid. s.23(1).
- Ibid. s.24(1).
- Ibid. s.24(2)-(7).
- Ibid. s.29.
- Ibid. s.30(1).
- Ibid. s.30(2).
- Ibid. s.31(1).
- Ibid. s.36(1).
- Ibid. s.36(2).
- Ibid. s.37(1) & (3).
- Ibid. s.38(1).
- Ibid. s.39(1)-(4).
- Ibid. s.40(1).
- Ibid. s.43(1)(a).
- Ibid. s.43(1)(b).
- Ibid. s.43(1)(g).
- Ibid. s.45(1)-(4); see also s.47(1)-(18).
- Ibid. s.46(1).
- Ibid. s.43(1)(h).
- Ibid. s.50(1).
- Ibid. s.38(4).
- Ibid. s.52(1).
- Ibid. s.53(1) & (2).
- Ibid. s.54(9).
- Ibid. s.54(6).
- Ibid. s.52(1).
- Ibid. s.52(2).
- Ibid. s.54(1)(a).
- Ibid. s.54(1)(b).
- Ibid. s.54(1)(c).
- Ibid. s.54(1)(d).
- Ibid. s.55(1).
- Ibid. s.55(8); see also s.55(10).
- Ibid. s.55(6).
- Ibid. s.55(11).
- Ibid. s.56(1).
- Ibid. s.57(1).
- Ibid. s.57(3) & (4).
- Ibid. s.60(1)-(21).
- Ibid. s.61(1).
- Ibid. s.62(1).
- Ibid. s.62(4).
- Ibid. s.65(1)-(3).
- Ibid. s.72(1) & (2).
- For example, to privacy, to freedom from non-consensual physical interference, and to freedom from restraint.
- Public Health Act, RSQ 2004, c. S-2.2 (updated to July 1, 2005).
- For example, the federal Public Health Agency of Canada was created in 2004 to enable coordinated national efforts to effectively identify and respond to public health threats. Ontario, Québec, British Columbia, and a number of other provinces either have, or have immediate plans to establish, provincial public health agencies. Similarly, several provinces and territories have plans to review and amend existing public health legislation.
- Public health threats are defined in the PHA as “The presence within the population of a biological, chemical or physical agent that may cause an epidemic if it is not controlled” Public Health Act, RSQ 2004, c. S-2.2, s.2
- Ibid. s.69.
- Ibid. s.80. The Regulations specify the following criteria for the list: “the intoxications, infections and diseases that may be included - must satisfy the following criteria: (1) they present a risk for the occurrence of new cases in the population, either because the disease or infection is contagious, or because the origin of the intoxication, infection or disease may lie in a source of contamination or exposure in the environment of the person affected; (2) they are medically recognized as a threat to the health of the population - that may result in serious health problems in the persons affected; (3) they require vigilance on the part of public health authorities or an epidemiological investigation; and (4) public health or other authorities have the power to take action in their respect to prevent new cases, to control an outbreak or to limit the magnitude of an epidemic, through the use of medical or other means” (Public Health Act, Regulation under the RQ c. S-2.2, r.1, s.2).
- Public Health Act, RSQ 2004, c. S-2.2, s.93.
- Ibid. s.95.
- Ibid. s.84.
- Ibid. s.83. The Regulations specify the following criteria for the list: the diseases and infections for which treatment is mandatory for any person affected must satisfy the following 6 criteria: (1) present a risk of contagion through person-to-person contact; (2) present a high risk of contagion through the airborne route; (3) be characterized as chronic, contagious diseases or infections if not treated ; (4) be recognized as serious diseases or infections for the individuals affected, in terms of lethality or morbidity, in the short or long-term; (5) respond to medical treatment with demonstrated efficacy to eliminate or significantly reduce the contagion; and (6) respond to no means of treatment other than the treatment to reduce the risk of contagion, apart from the isolation of the person affected (Public Health Act, Regulation under the RQ c. S-2.2, r.1, s.3).
- Public Health Act, RSQ 2004, c. S-2.2, s.86.
- Ibid. s.90.
- Ibid. s.91.
- Ibid. s.38.
- Ibid. s.97.
- Ibid. s.100.
- Ibid. s.97.
- Ibid. s.106.
- A public health emergency may be declared where “A serious threat to the health of the population, whether real or imminent, requires the immediate application of certain measures provided for in section 123 to protect the health of the population” (Ibid. s.118). The PHA requires that the declaration specify “the nature of the threat, the area concerned and the effective period of the public health emergency” (Ibid. s.120).
- Ibid. s.116.
- Ibid. s.117.
- Ibid. s.123.
- Ibid. s.124.
- Ibid. s.138.
- Ibid. s.139.
- Ibid. s.140.
- Medical Profession Act, RSA 2000, c. M-11 (updated to August 1, 2005).
- Ibid. s.33. The PPC is comprised of eight registered physicians and one layperson: Ibid. s.39(1).
- Ibid. s.34(a).
- Ibid. s.35(1).
- Ibid. s.36(1). Importantly, the Act does not grant the PPC the power to enter and inspect a private dwelling without consent of the occupants: Ibid. s.36(2).
- Ibid. s.35(2)(a).
- Ibid. s.35(2)(b) & (c).
- Ibid. s.36(3). See the next section, “Professional Conduct,” for an explanation of the function and authority of the investigation chair.
- Ibid. s.38(1).
- Ibid. s.38(s).
- Ibid. s.38(7).
- Ibid. s.44(2).
- Ibid. s.44(3).
- Ibid. s.46(1).
- Ibid. s.46(2).
- Ibid. s.46(3).
- Ibid. s.47(1). The CPSA is also authorized to apply for a court order to that effect where the person(s) concerned fail to comply with a demand for documents: Ibid., s.47(2).
- Ibid. s.48(1).
- Ibid. s.48(2).
- Ibid. s.51(2).
- Ibid. s.53.
- Ibid. s.55(1).
- Ibid. s.58(1).
- Ibid. s.54(1).
- Ibid. s.51(3).
- Ibid. s.58(2).
- Ibid. s.59(1).
- Ibid. s.59(2).
- Ibid. s.59(3).
- Ibid. s.59(6).
- Ibid. s.60(1).
- Ibid. s.60(2).
- Ibid. s.61(1).
- Ibid. s.61(2).
- Ibid. s.65(1).
- Ibid. s.65(3).
- Ibid. s65(4).
- Ibid. s.66(1).
- Ibid. s.101.
- Ibid. s.66(2).
- Ibid. s.68(1).
- Ibid. s.68(3).
- Ibid. s.71(1).