Fourth post in a series on the First Annual Interprofessional Health Law Conference.

Elyse Sunshine of Gardiner Roberts provided health care professionals the basics of the regulatory scheme governing the health sector in Ontario.

Licensing Bodies

Canadian health care professions are governed by the Regulated Health Professions Act, 1991. This is a profession-specific act that dictates who will have a license, and creates colleges that act in the public’s interest.

She typically tells health care professionals not to call a licensing body or associations with their problems, because they are not there to advocate for you.

PHIs and HICs

Issues that she says health care professionals deal with daily are privacy and confidentiality. The duty of confidentiality is both statutory and a common law duty, and breaches are treated very seriously.

The Personal Health Information Protection Act, 2004 provides the rules of collection, use and disclosure of Personal Health Information (PHI) by Health Information Custodians (HICs).

HICs are typically health care professionals that provide health care, but they can also include anyone providing any form of health care, directly or indirectly as an agent.

HICs are required to post their policies in a visible place, and these should reference a larger, broader, and more comprehensive policy.

Orders of the Privacy Commissioner

The Privacy Commissioner has provided several orders regarding HICs.

HICs need to secure the destruction of medical records.  They should not, as in one case, be used as props on a movie set.

They should restrict unauthorized access.  One hospital employee was looking at records of a boyfriend’s ex-wife, which was considered inappropriate.

Records left behind after a clinic closure should be secure.  This includes the theft of a laptop computer stolen from a car that contained unencrypted information.  There has also been a breach of a surveillance video at a methadone clinic.

Sunshine then cited the case of Smith v. Jones (1999) on the duty to breach confidentiality in cases of known danger.

Consent Issues
The Health Care Consent Act, 1996 codified the common law, and the elements of capacity and consent, including informed consent.

Consent can still be implied where a patient is aware and does not object to treatment.

Informed consent can be complicated because you have to judge using a number of factors:

• The nature of the treatment.
• The expected benefits of the treatment.
• The material risks of the treatment.
• The material side effects of the treatment.
• Alternative courses of action.
• The likely consequences of not having the treatment.

Case law has tried to define what is material risk. 

Reibl v. Hughes established that consent has to be centered around the patient. It’s not what a reasonable person would tell any more, but what the patient would want to know.

An exception to consent under the Act exists for emergency treatment, but the health care professional can only continue until there is a practical means of obtaining consent or refusal.

Disrpuptive Professionals

The issue of disruptive professionals is increasingly becoming more important, especially as television sitcom personalities like Dr. House are admired.  These people can disrupt patient care and pose a serious risk.

The murder of Lori Dupont, a nurse that refused a relationship with a former boyfriend and physician in the same hospital, Dr. Marc Daniel, is a vivid example.  The doctor had a long history of disruptive behaviour at Hotel Dieu Grace Hospital, but despite the nurses voicing concerns very little was done about it.

The result of this incident was there were 26 recommendations and  legislation was changed.  As a result, the regulatory bodies will now discipline for disruptive behaviour.

Working Together for the Future

In closing, Elyse Sunshine discussed how many problems start for professionals.

Unreasonable expectations are created, often through studies patients read and the Internet, and there is poor management of those expectations by the professional.

Sometimes there are bad outcomes.  You try your best, and you still don’t get what you want.

There are also issues of poor communication.  Schools do not teach professionals on how to relate to patients.

But by working together and for the future, different professionals can work to address these problems as we move forward.