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ELOM6 Ethical, Legal, and Organizational Medicine Ethical and Legal Issues in Canadian Medicine Toronto Notes 2019
The CMA Code of Ethics is a quasi-legal standard for physicians; if the law sets a minimal moral standard for doctors, the Code augments these standards
Legal Aspects of Confidentiality
Advice should always be sought from provincial licensing authorities and/or legal counsel when in doubt
CMA Code of Ethics
“Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform
the patients that the usual requirements for confidentiality will be breached”
Reasons to Breach Confidentiality
• Child abuse
• Fitness to drive
• Communicable disease • Coroner report
• Duty to inform/warn
CMA Code of Ethics
• theCMAdevelopedaCodeofEthicsthatactsasacommonethicalframeworkforCanadianphysicians • theCodeofEthicsis:
■ prepared by physicians for physicians and applies to physicians, residents, and medical students
■ based on the fundamental ethical principles of medicine
■ sources include the Hippocratic Oath, developments in human rights, recent bioethical discussion ■ CMA policy statements address specific ethical issues not mentioned by the code (e.g. abortion,
transplantation, and euthanasia)
Confidentiality
Overview of Confidentiality
• whendetermininglegalandethicalissuessurroundingpatientinformation,startfromthepointthat all information given by the patient is both confidential (meaning it cannot be disclosed to others) and privileged (meaning it cannot be used in court), then determine whether exceptions to this exist.
• thelegalandethicalbasisformaintainingconfidentialityisthatafullandopenexchangeofinformation between patient and physician is central to a therapeutic relationship
• privacyistherightofpatients(whichtheymayforgo),whileconfidentialityisthedutyofdoctors (which they must respect barring patient consent or the requirements of the law)
• ifinappropriatelybreachedbyadoctor,theycanbesanctionedbythehospital,court,orregulatory authority
• basedontheethicalprincipleofpatientautonomy,patientshavetherighttothefollowing:
■ control of their own information
■ the expectation that information concerning them will receive proper protection from unauthorized
access by others (see Privacy of Medical Records, ELOM7)
• confidentialitymaybeethicallyandlegallybreachedincertaincircumstances(e.g.thethreatofharmto
others)
■ while physician-patient privilege exists, it is less strong than solicitor-client privilege. Physicians can
tell patients that they will only disclose their information where it is mandated by law and that these exceptions are generally quite narrow. Physicians should avoid promising absolute confidentiality or privilege, as it cannot be guaranteed
• physiciansshouldseekadvicefromtheirlocalhealthauthorityortheCMPAbeforedisclosingHIV status of a patient to someone else
■ many jurisdictions make mandatory not only the reporting of serious communicable diseases (e.g. HIV), but also the reporting of those who harbour the agent of the communicable disease
■ physicians failing to abide by such regulations could be subject to professional or civil actions
• legal duty to maintain patient confidentiality is imposed by provincial health information legislation
and precedent-setting cases in the common law
Statutory Reporting Obligations
• legislationhasdefinedspecificinstanceswherepublicinterestoverridesthepatient’srightto confidentiality; varies by province, but may include:
1. suspected child abuse or neglect – report to local child welfare authorities (e.g. Children’s Aid Society)
2. fitness to drive a vehicle or fly an airplane – report to provincial Ministry of Transportation
(see Geriatric Medicine, GM10)
3. communicable diseases – report to local public health authority
(see Public Health and Preventive Medicine, PH26)
4. improper conduct of other physicians or health professionals – report to College or regulatory body
of the health professional (sexual impropriety by physicians is required reporting in some provinces)
5. vital statistics must be reported; reporting varies by province (e.g. in Ontario, births are required to
be reported within 30 days to Office of Registrar General or local municipality; death certificates
must be completed by a MD then forwarded to municipal authorities)
6. reporting to coroners (see Physician Responsibilities Regarding Death, ELOM15)
• physicianswhofailtoreportinthesesituationsaresubjecttoprosecutionandpenalty,andmaybe liable if a third party has been harmed
Duty to Protect/Warn
• thephysicianhasadutytoprotectthepublicfromaknowndangerouspatient;thismayinvolvetaking appropriate clinical action (e.g. involuntary detainment of violent patients for clinical assessment), informing the police, or warning the potential victim(s) if a patient expresses an intent to harm
• firstestablishedbyaSupremeCourtofCaliforniadecisionin1976(Tarasoffv.RegentsoftheUniversity of California)
• Canadian courts have not expressly imposed a mandatory duty to report, however, the CMA Code of Ethics and some provincial/territorial regulatory authorities may oblige physicians to report (mandatory reporting rather than permissive)
• concernsofbreachingconfidentialityshouldnotpreventtheMDfromexercisingthedutytoprotect; however, the disclosed information should not exceed that required to protect others
• applies in a situation where:
1. there is an imminent risk;
2. to an identifiable person or group; 3. of serious bodily harm or death
Ontario’s Medical Expert Panel on Duty to Warn
1998;158(11):1473-1479
• There should be a duty to inform when
a patient reveals that they intend to do serious harm to another person(s) and it is more likely than not that the threat will be carried out
• Where a threat is directed at a person or group and there is a specific plan that is concrete and capable of commission and the method for carrying it out is available to the threatener, the physician should immediately notify the police and, in appropriate circumstances, the potential victim. The report should include the threat, the situation, the physician’s opinion, and the information upon which it is based