Ambrosini DL, Joncas L. Civil commitment: a cross Canada checkup. In: Bloom H, Schneider R, eds. Mental Disorder and the Law: A Comprehensive and Practical Approach. Toronto, ON: Irwin Law; 2013.
Canadian Medical Association. CMA Code of Ethics. https://www.cma.ca/En/Pages/code-of-ethics.aspx. Published 2004. Accessed August 27, 2018.
The Canadian Medical Protective Association. http://www.cmpa-acpm.ca. Accessed August 27, 2018.
The practice of medicine occurs in a complex matrix of ethical guidelines and legal structures that, although usually complementary, may sometimes come into conflict. The Canadian Medical Association’s (CMA) Code of Ethics states: “Physicians should be aware of the legal and regulatory requirements that govern medical practice in their jurisdictions.” This statement highlights the fact that many of the legal and regulatory requirements governing medical practice vary from province to province. Furthermore, the medical colleges of individual provinces and territories also provide standards and guidelines for their constituents (see website of the Royal College of Physicians and Surgeons of Canada).
Although a thorough treatment of the medical-legal issues that may affect medical practitioners in the course of their work is beyond the scope of this chapter, we have tried to highlight some key areas and to provide brief conceptual overviews as well as resources that can be accessed for more detailed, geographically relevant information. The specific issues we have elected to examine are ones that often present themselves in the practice of psychiatry but are also common in many other areas of medical practice. An excellent practical overview of this topic may be found in the Medical-legal handbook for physicians in Canada, a publication of the Canadian Medical Protective Association (CMPA).
Although more commonly encountered in the practice of psychiatry, the application of civil legislation for the purpose of involuntary hospitalization (often referred to as civil commitment) may occur in other areas, such as emergency departments or medical units. Although the specific criteria vary significantly throughout Canada, certain principles apply generally. Due to the serious nature of involuntary admission, every effort must be made to ensure that the appropriate legal criteria have been met, that the appropriate documentation has been completed, and that the patient is made aware of his or her legal rights in the situation. The process of involuntary admission can be extremely stressful and stigmatizing. Therefore, the application of any seclusion or restraint measures (physical or pharmacologic) is often experienced as very traumatic and should be done in the least restrictive or intrusive manner that permits the safe care of the individual.
Significant variation exists among provincial statutes in terms of the criteria that must be met to permit civil commitment. In addition to the presence of mental disorder, provinces vary with regard to requirements of the risk of harm to self and/or others, likelihood of mental or physical deterioration or impairment, and imminence or seriousness of these. A comparison of these criteria across Canada may be found in Ambrosini and Joncas (see Additional Information, above). For details regarding the requirements for involuntary hospitalization in specific locations, the reader is directed to review the relevant provincial or territorial statutes. These can be accessed through the Canadian Legal Information Institute.
Consent to TreatmentTop
The right of a capable person to accept or reject an offered treatment, being it for psychiatric or any other condition, is considered fundamental in the Canadian health-care system. Respect for this right is a responsibility as described in the CMA Code of Ethics. In addition to being an ethical requirement, consent is also mandated by legislation, although situations exist in which treatment may proceed based on a court order (eg, to restore fitness to stand trial) or an emergency basis (to prevent severe suffering or to manage imminent threat to life, limb, or health). In all other circumstances valid consent must be obtained from the patient or, in situations in which the patient has been determined to be incapable of providing consent for a particular treatment, from an appropriate substitute decision-maker. In order for the consent to be valid, it must meet certain criteria: the patient must be capable and the consent must be voluntary and properly informed. The Supreme Court of Canada in Starson v Swayze (2003 SCC 32) considered the issue of treatment capacity and in its decision indicated that 2 criteria are involved and both must be met in order for an individual to be considered capable:
1) The patient must be able to understand the information that is relevant to making a treatment decision.
2) The patient must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.
As in all cases, the physician is required to complete an appropriate assessment and document the results. Depending upon legislation in the place of practice, the appropriate forms must be completed and notifications, including rights of appeal, must take place. In addition to provincial legislation and college policies, the reader is directed to CMPA’s Consent: A guide for Canadian physicians.
Consent is often implied either by the words or behavior of the patient or by the circumstances under which treatment is given. Physicians should be reasonably confident the actions of the patient imply permission for proposed examinations, investigations, and treatments. When there is doubt, it is preferable the consent be expressed, either orally or in writing. A patient may be incapable of consenting to a particular medical treatment but may be capable of consenting to other treatments for the same or another condition. The obligation to obtain consent must always rest with the physician who is to carry out the treatment or the investigative procedure. The patient must have been given an adequate explanation about the nature of the proposed treatment or investigation and its anticipated outcome as well as the significant risks involved and alternatives available. The ability to consent may fluctuate over time and thus must be monitored and reassessed as required. In circumstances where it has been determined that a patient is incapable to consenting to a particular treatment or investigation, a substitute decision-maker may be appointed. Substitute decision-makers must act in compliance with any prior capable wishes of the patient and, where these are not known, should be guided by the patient’s best interests. The assignment of substitute decision-makers will take place according to appropriate legislative guidelines that exist in the physician’s jurisdiction.
Psychiatric emergencies in medical settings often involve management of an agitated patient. In order to prevent harm to himself or herself or others, an agitated patient may be restrained using pharmacologic or physical means without obtaining consent. Once the patient is stabilized, capacity- and consent-related issues as well as involuntary hospitalization (civil commitment) should be considered as soon as possible.
Privacy is generally accepted as a fundamental human right. Confidentiality has been a cornerstone of ethical medical practice throughout history and is referred to in the Hippocratic oath. The confidentiality of health information, in addition to being an expectation within the CMA’s Code of Ethics and the ethical guidelines of most provincial colleges, is also protected through privacy legislation. At the national level, the Personal Information Protection and Electronic Documents Act (PIPEDA) addresses the management of personal information by private sector organizations. The collection, storage, and use of personal health information is subject to provincial and territorial legislation with oversight by designated privacy commissioners. A listing of internet addresses of privacy commissioners with links to legislation is provided in Appendix 1.
Although a written consent to release personal health information should be obtained wherever possible, certain circumstances exist where this may not be required. In some statutes (eg, the Personal Health Information Protection Act in Ontario) physicians are entitled to assume that they have the patient’s implied consent to share information within the patient’s “circle of care” for the purpose of providing health care (see website of The College of Physicians and Surgeons of Ontario). Expressed consent is required in all other circumstances unless the release of information is mandated by statute. Such statutes also vary by province or territory but include such examples as the reporting of issues related to fitness to drive, reporting of certain communicable diseases, or reporting when a child is believed to be at risk of harm.
Provincial or territorial colleges publish lists of mandatory and permissive reportable circumstances, events, or clinical conditions.
The release of personal health information may also be permitted where it is necessary in order to protect the safety of members of the public. This issue is reviewed thoroughly in a position paper of the Canadian Psychiatric Association addressing the duty to protect. In the paper the authors make specific reference to the Supreme Court’s position articulated in the decision in Smith v Jones ( 1 SCR 455), which they recommend should be taken as a professional standard of practice. The Canadian Psychiatric Association takes the position “that its members have a legal duty to protect intended victims of their patients. This duty to protect may include informing intended victims or the police, or both, but may more easily be addressed in some circumstances by detaining and possibly treating the patient.” The authors recommend that as part of the informed consent process patients should be warned of the limits of confidentiality. Furthermore, they specify that a duty to protect (warn or inform) exists (1) “in the event that risk to a clearly identifiable person or group of persons is determined”; (2) “when the risk of harm includes severe bodily injury, death, or serious psychological harm”; (3) “when there is an element of imminence, creating a sense of urgency.”
Malpractice is defined as an instance of negligence or incompetence on the part of a professional. Most civil actions against physicians are based in torts (civil wrongs), which are classified into intentional or unintentional. Intentional torts, such as assault or slander, are far less common than unintentional torts, such as negligence. These may be alleged actions or omissions on the part of the physician, which are claimed to have resulted in harm to the patient. In order for negligence to be proven, several elements must be established:
1) A duty of care to a patient: Accepting a patient establishes a duty of care. A physician is expected to exercise reasonable skill and judgment in coming to a diagnosis and recommending appropriate evaluation and treatment.
2) A breach of that duty of care: A physician is expected to perform to a standard that might reasonably be observed in a colleague under similar circumstances.
3) The patient must have suffered some harm or injury.
4) The harm has to be causally related, on the balance of probabilities, to the breach of duty of care.
Managing Legal Issues in PracticeTop
The management of medical/legal issues in health-care settings is often challenging and complex. It is recommended that physicians involve professional colleges, administrators, or legal resources, such as hospital council and CMPA representatives, as required.
For a more comprehensive discussion of issues related to medical liability, the reader is referred to the CMPA.
Provincial and territorial privacy commissioners:
– Alberta: www.oipc.ab.ca
– British Columbia: www.oipc.bc.ca
– Manitoba: www.ombudsman.mb.ca
– New Brunswick: www.info-priv-nb.ca
– Newfoundland and Labrador: www.oipc.nl.ca
– Northwest Territories: www.commissioner.gov.nt.ca/privacy/
– Nova Scotia: www.foipop.ns.ca
– Nunavut: www.info-privacy.nu.ca
– Ontario: www.ipc.on.ca
– Prince Edward Island: www.assembly.pe.ca
– Quebec: www.cai.gouv.qc.ca/english/
– Saskatchewan: www.oipc.sk.ca
– Yukon: www.ombudsman.yk.ca