Following are the most common medico-legal issues faced by residents, particularly those working in the emergency room. If you have any questions see the attending on-duty Professional Staff Member.
It is a basic principle that everyone has the right to determine what shall or what shall not be done with his or her own body. This is called autonomy. Because of this right, doctors need consent from patients before they can treat them. Consent may be expressed in words or implied by the patient's actions. For certain procedures a consent form is required as part of the consent process. Consent should be documented on the chart.
A person can only give valid consent if they are competent or have capacity. Capacity means the person is able to understand the information that is necessary to make a decision about the proposed treatment and able to appreciate the reasonable foreseeable consequences of a decision or lack of a decision. Note that the person's decision does not have to be reasonable (by most people's standards) though it should not be substantially based on a delusional belief. A competent person has the right to refuse even life sustaining treatment.
Capacity is relevant to the specific treatment or procedure under discussion, ie. someone may be capable of consenting to a laceration repair but incapable of consenting to major surgery. Capacity also often varies with time. In Ontario, it is important to note that age alone is not a criteria you may use to decide someone is incompetent to make his or her own decisions. Also, you must presume someone is capable unless you have reasonable grounds to think otherwise.
The assessment or examination of a person to determine the general nature of his or her condition does not require explicit consent but if the person refuses any part of the examination this should be respected and refusal documented on the chart.
If someone is not capable of giving consent, they need a substitute decision maker to act on their behalf. The Substitute Decision Maker can either be a person formally named by the patient or a family member based on the hierarchy listed in the legislation. If there is no one to give consent on a person's behalf then you would call the Public Guardian and Trustee.
The major exception to the need for consent is: it is an emergency. It is an emergency if the person for whom the treatment is proposed is incapable of giving consent and is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm. Remember, a competent person can refuse treatment. Even in an emergency you can only force treatment if the person is incapable and there is no substitute decision maker immediately available and there are no known wishes prohibiting treatment (i.e. blood administration).
To be valid, consent must also be informed. This means the person must be told the nature of the proposed treatment, expected benefits, expected side effects, any alternative treatments and the consequences of refusing treatment. They must also be given an opportunity to ask any questions. You are advised to document the discussion in the health record.
A consent form is a hospital requirement for many procedures. It is only a piece of paper that says some discussion has occurred but, by itself, says nothing about the adequacy of that discussion should the consent be challenged in court.
ADVANCED DIRECTIVES (LIVING WILLS)
Advance directives are legal in Ontario and are described in legislation as patient wishes. They can be written or verbal. In an emergency situtation where the patient is incapable and there is no substitute decision maker available then the physician and health care providers are obliged to follow wishes if known. In non emergency situations the obligation of the physician is to obtain consent from the patient or substitute decision maker(SDM). The SDM has an obiligation to comply with the patient wishes.
BLOOD SAMPLES OR TOXIC SUBSTANCE SCREENS
The Criminal Code was amended in 1985 to allow blood alcohol samples to be drawn under certain conditions. The police may request a patient to provide a blood sample and ask you to draw it. If the patient is competent they have the right to refuse the request. (They can then be charged with refusing.) If the patient is incompetent and thus unable to consent, the Police must have a court order. If you are not comfortable in either situation you may refuse to comply, with no legal ramifications to yourself.
If the samples were taken as part of the medical workup of a patient (ie.. all trauma patients have blood alcohol levels drawn on arrival as part of a trauma panel of bloodwork), the results cannot be released to the police without the patient's consent or a court order as above.
Because the London Police have a portable breathalyzer that they can bring to the ER, it is relatively rarely that the police will ask you draw blood alcohols for them. Because too such cases usually go to court, ask the staff physician to do it.
Occassionally the police (or parents) will request a drug screen. Again, the patient must give his or her consent for the blood to be drawn and the results shared with a third party.
There is no legal duty to assist the police. Good citizens want to cooperate in criminal investigations but patient confidentiality comes first. Be careful giving any information without the patient's consent. Obviously, it is a crime to deliberately mislead the police.
UTTERING THREATS
If a patient utters threats of violence or potential harm towards a specific person, and it is reasonable to assume that they may carry out their threats, you have a duty to report this to the police, and to the person against whom the threats were uttered. These threats need to pose a clear, imminent and serious danger to the person mentioned. For example, if a man threatens to assault his wife when he sees her, and you know that his wife is the one coming to pick him up from hospital, you must notify both the wife and the police. (If the husband also has a psychiatric disorder, you can complete a Form 1 and require him to be assessed by a psychiatrist, even against his will.)
Reporting Duties
CHILD ABUSE
If you have reasonable grounds to suspect that a child has been abused or is at risk of being abused, you must report it to the Children's Aid Society. Abuse includes physical, sexual and emotional abuse, as well as a pattern of neglect. You may not delegate this duty. You do not have to see the child or suspect/know who the abuser is.
SPOUSE / ELDER ABUSE
You must report any suspected elder abuse that occurs in a nursing home to the Ministry of Health. If the person is in the community and they are competent, all you can do is urge the abused person themselves to call the police, and offer assistance with respect to shelters or other support services. If the person is incompetent, and is being abused by his or her caregiver, call the Public Guardian and Trustee. In the elderly, much abuse is financial.
SEXUAL ABUSE BY A REGULATED HEALTH PROFESSIONAL
This includes MD, RN, OT, PT, RT etc. If you have good reason to believe that one of these individuals has committed such an act you have a duty to report them to their respective colleges. Reporting is mandatory and must be made in writing if you hear of the abuse while you are caring for the patient/victim. Do not give the CPSO or other college the patient's name unless they agree.
Reporting Duties
CHILD ABUSE
If you have reasonable grounds to suspect that a child has been abused or is at risk of being abused, you must report it to the Children's Aid Society. Abuse includes physical, sexual and emotional abuse, as well as a pattern of neglect. You may not delegate this duty. You do not have to see the child or suspect/know who the abuser is.
SPOUSE / ELDER ABUSE
You must report any suspected elder abuse that occurs in a nursing home to the Ministry of Health. If the person is in the community and they are competent, all you can do is urge the abused person themselves to call the police, and offer assistance with respect to shelters or other support services. If the person is incompetent, and is being abused by his or her caregiver, call the Public Guardian and Trustee. In the elderly, much abuse is financial.
SEXUAL ABUSE BY A REGULATED HEALTH PROFESSIONAL
This includes MD, RN, OT, PT, RT etc. If you have good reason to believe that one of these individuals has committed such an act you have a duty to report them to their respective colleges. Reporting is mandatory and must be made in writing if you hear of the abuse while you are caring for the patient/victim. Do not give the CPSO or other college the patient's name unless they agree.
OHIP FRAUD
In Ontario, physicans as well as certain other hospital staff are required to report specific incidents of fraud to the Ministry of Health, ie. if a person uses someone else's OHIP card or claims residency when they live out of the province.
SPOUSE / ELDER ABUSE
You must report any suspected elder abuse that occurs in a nursing home to the Ministry of Health. If the person is in the community and they are competent, all you can do is urge the abused person themselves to call the police, and offer assistance with respect to shelters or other support services. If the person is incompetent, and is being abused by his or her caregiver, call the Public Guardian and Trustee. In the elderly, much abuse is financial.
SEXUAL ABUSE BY A REGULATED HEALTH PROFESSIONAL
This includes MD, RN, OT, PT, RT etc. If you have good reason to believe that one of these individuals has committed such an act you have a duty to report them to their respective colleges. Reporting is mandatory and must be made in writing if you hear of the abuse while you are caring for the patient/victim. Do not give the CPSO or other college the patient's name unless they agree.
SPOUSE / ELDER ABUSE
You must report any suspected elder abuse that occurs in a nursing home to the Ministry of Health. If the person is in the community and they are competent, all you can do is urge the abused person themselves to call the police, and offer assistance with respect to shelters or other support services. If the person is incompetent, and is being abused by his or her caregiver, call the Public Guardian and Trustee. In the elderly, much abuse is financial.
SEXUAL ABUSE BY A REGULATED HEALTH PROFESSIONAL
This includes MD, RN, OT, PT, RT etc. If you have good reason to believe that one of these individuals has committed such an act you have a duty to report them to their respective colleges. Reporting is mandatory and must be made in writing if you hear of the abuse while you are caring for the patient/victim. Do not give the CPSO or other college the patient's name unless they agree.
SEXUAL ABUSE BY A REGULATED HEALTH PROFESSIONAL
This includes MD, RN, OT, PT, RT etc. If you have good reason to believe that one of these individuals has committed such an act you have a duty to report them to their respective colleges. Reporting is mandatory and must be made in writing if you hear of the abuse while you are caring for the patient/victim. Do not give the CPSO or other college the patient's name unless they agree.
SEXUAL ABUSE BY A REGULATED HEALTH PROFESSIONAL
This includes MD, RN, OT, PT, RT etc. If you have good reason to believe that one of these individuals has committed such an act you have a duty to report them to their respective colleges. Reporting is mandatory and must be made in writing if you hear of the abuse while you are caring for the patient/victim. Do not give the CPSO or other college the patient's name unless they agree.
OHIP FRAUD
In Ontario, physicans as well as certain other hospital staff are required to report specific incidents of fraud to the Ministry of Health, ie. if a person uses someone else's OHIP card or claims residency when they live out of the province.
MEDICALLY UNFIT TO OPERATE A MOTOR VEHICLE
In Ontario, a physician must report every person who is suffering from a condition that may make it dangerous for the person to operate a motor vehicle. Legally, this requirement is not limited. In practice, most physicans do not report short term medical conditions. More significant problems that should be reported inlclude seizure disorders, alcohol or drug dependance, uncorrected visual impairment, and psychiatric illness that impairs the person's judgement. New legislation is pending.
You must report the patient's name, address and clinical condition that makes them unfit to drive to The Driver Improvement Section of the Ministry of Transportation of Ontario. It obviously takes a some time for the MTO to respond once a report has been made. Generally it is best to advise you patient that you are legally obligated to report. Also advise them that they cannot drive until their injury/impairment is resolved and document that you told them.
If the patient is a pilot, they must report that fact to you when you see them. In such cases you must report their injury/impairment to Transport Canada, Aviation.
Other Important Notes
If at anytime you are unsure of any medical legal issue, do not hesitate to ask your staff physician or call the CMPA.
FOR FURTHER INFORMATION OR ASSISTANCE
CMPA 1-800-267-6522
Public Guardian & Trustee (London) 519-660-3140
Children's Aid Society (London) 519-455-9000
(after hours,weekends, or holidays 519-432-5987)
Ministry of Health, Long Term Care Office 519-675-7680
Women's Community House (shelter and counselling for abused women) 519-642-3000
RESOURCES AND FURTHER READING
Consent: A Guide for Canadian Physician, 3rd ed., 1996. Published by the CMPA and available at no cost to members or on-line at www.cmpa.org
A Medico-Legal Handbook for Canadian Physicians, 4th ed., 1997. Published by the CMPA and available at no cost to members or on-line at www.cmpa.org
A Guide to the Health Care Consent Act. Published by the CPSO and available on-line at www.cpso.on.ca
Physicians' Guide to Driver Examination, 5th ed., 1991. Published by the CMA.
The Physician and the Aeronautics Act, A Guide to Mandatory Reporting, 1995. Published by the CMA.
