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Toronto Notes 2019 Ethical and Legal Issues in Canadian Medicine Ethical, Legal, and Organizational Medicine ELOM11
• PediatricAspectsofCapacityCovered
■ no age of consent in all provinces and territories except Québec; consent depends on patient’s decision-making capacity
■ Québec has a specific age of consent, but common law and case law deem underage legal minors capable, allowing these individuals to make their own choices
■ infants and children are assumed to lack mature decision-making capacity for consent but they should still be involved (i.e. be provided with information appropriate to their comprehension level)
■ adolescents are usually treated as adults
■ preferably, assent should still be obtained from patient, even if not capable of giving consent
■ in the event that the physician believes the SDM is not acting in the child’s best interests, an appeal
must be made to the local child welfare authorities
■ under normal circumstances, parents have right of access to the child’s medical record
Negligence
Ethical Basis
• thedoctor-patientrelationshipisformedontrust,whichisrecognizedintheconceptoffiduciaryduty/ responsibility of physician towards patient
• negligenceormalpracticeisaformoffailureonthepartofthephysicianinfulfillinghis/herfiduciary duty in providing appropriate care and leading to harm of the patient (and/or abuse of patient’s trust)
Legal Basis
• physiciansarelegallyliabletotheirpatientsforcausingharm(tort)throughafailuretomeetthe standard of care applicable under the circumstances
• standard/duty of care is defined as one that would reasonably be expected under similar circumstances of an ordinary, prudent physician of the same training, experience, specialization, and standing
• liabilityarisesfromphysician’scommonlawdutyofcaretohis/herpatientsinthedoctor/patient relationship (or, in Québec, from the Civil Code provisions regarding general civil liability)
• action(s)innegligence(orcivilliability)againstaphysicianmustbelaunchedbyapatientwithina specific prescribed period required by the respective province in which the actions occurred
Truth-Telling
Ethical Basis
• helpstopromoteandmaintainatrustingphysician-patientrelationship
• patientshavearighttobetoldimportantinformationthatphysicianshaveregardingtheircare • enablespatientstomakeinformeddecisionsabouthealthcareandtheirlives
Legal Basis
• requiredforvalidpatientconsent(seeConsentandCapacity,ELOM7)
■ goal is to disclose information that a reasonable person in the patient’s position would need in order
to make an informed decision (“standard of disclosure”)
• withholdinginformationcanbeabreachoffiduciarydutyanddutyofcare
• obtainingconsentonthebasisofmisleadinginformationcanbeseenasnegligent
Evidence about Truth-Telling
• itisapatient’srighttohavetheoptionofknowingwhatiswrongwiththem
• mostpatientswanttoknowwhatiswrongwiththem
• althoughmanypatientswanttoprotectfamilymembersfrombadnews,theythemselveswouldwantto
be informed in the same situation
• truth-tellingimprovesadherenceandhealthoutcomes
• informedpatientsaremoresatisfiedwiththeircareandmostoftentakethenewsbetterthanexpected • negativeconsequencesoftruth-tellingcanincludedecreasedemotionalwell-being,anxiety,worry,
social stigmatization, and loss of insurability
Challenges in Truth-Telling
Medical Error
• medicalerrormaybedefinedas‘preventableadverseevents(AEs)’causedbythepatient’smedicalcare and not the patient’s underlying illness; some errors may be identified before they harm the patient, so not all error is truly ‘adverse’
• manyjurisdictionsandprofessionalassociationsexpectandrequirephysicianstodisclosemedical error; that is, any event that harms or threatens to harm patients must be disclosed to the patient or the patient’s family and reported to the appropriate health authorities
• physiciansmustdisclosetopatientstheoccurrenceofAEsorerrorscausedbymedicalmanagement, but should not suggest that they resulted from negligence because:
■ negligence is a legal determination ■ error is not equal to negligence
There is no age of consent in Ontario Capacity is assessed on an individual basis
Errors of care are compatible with non-negligent care if they are ones that a reasonably cautious and skilled MD could make (i.e. mistakes can be made due to ‘honest error’)
Four Basic Elements for Action Against a Physician to Succeed in Negligence
1. Adutyofcareowedtothepatient(i.e.
doctor/patient relationship must be
established)
2. Abreachofthestandardofcare
3. Someharmorinjurytothepatient
4. The harm or injury must have been caused
by the breach of the duty of care
CPSO Policy on Truth-Telling
Physicians should provide patients with whatever information that will, from the patient’s perspective, have a bearing on medical decision-making and communicate that information in a way that is comprehensible to the patient
Examples of Warning of Impending Bad News
“I have something difficult to tell you...” “This may come as a shock to you, but the tests indicate...”
“There is no easy way for me to tell you this, so I will tell you straight away that you have a serious problem...”
Adverse Event
An unintended injury or complication from health care management resulting in disability, death, or prolonged hospital stay