Chapter 1 Preliminary Issues

imissyou419's version from 2017-10-20 03:56

Section 1

Question Answer
Society is morelitigious; all professionals under greater scrutiny, American concept
more suits against, how much x increase in suits?health, counselling and care practitioners, as well as other professionals;
4x increase in suits from 1976-2015, 65x increase in damages + costs
law playing greater role, particularly foradministrators
Some of the conventional responses to the increasingly challenging legal environments areunnecessary, costly, cumbersome
What are the 7 factors expanding the role of law1. shift from paternalistic to rights-based notion of health care. Issues increasingly framed in terms of the respective legal rights of the parties, rather than the best interests of the patient.
2. recognition that ALL competent patients can make their own, health, counselling and care decisions, despite the wishes of their next-of-kin,
3. cycle of apathy, crisis, and panic. Child abuse, violence against women, privacy;
4. flood of complex, piecemeal legislation, particularly in regard to mandatory reporting and privacy; no attempt to rationalize, consolidate and streamline; legislation overlap and duplicates
5. expansion of health rubric;
6. politicizing of health care of health care: wait times, doctor fees, hospital closings, and lobbying for causes;
7. increasing fiscal restraint, as federal share of health care cost decreased, the provincial share increased, limiting funding for all other provincial services, provincial government are under tremendous pressure to streamline health care services and reduce costs
Courts expect health professionals to actreasonably and in good faith (putting legitimate needs of their patients first);
the current law is wholly compatible with the professional and ethnical standards of health, counselling and care professionals

Section 2

Question Answer
Canada Health Act does not give people a right to publicly-funded health services
Canada Health Act purposeestablishes the criteria the provincial health insurance plans must meet to obtain a federal cash contribution;
provides the legislative basis for Federal-Provincial Health Accords, which in turn set out the funding formula
CHA covers only"insured health services" (i.e. medically/dentally-necessary hospital care, dental surgery in hospital and physician services) and only "insured persons" (i.e. residents of the province except federal prisoners, visitors and transients, Canadian Forces)
5 pillars of medicarepublic administration (public authority administer plan), comprehensiveness (must cover all insured services provided by hospitals, medical practitioners, and dentists), universality (every insured person entitled), portability (not impose a minimum residence or waiting period exceeding 3 months, provide coverage for insured persons temporarily out of province), and accessibility (uniform terms)
In order to qualify for full cash contribution, the provincial health insurance plan cannotpay for insured services that are subject to "extra billing" or "user fees";
the Federal contribution must be acknowledged
What creates a legal entitlement to publicly-funded health services?provincial/territorial health insurance plans. In additional to the mandatory insured services, the provincial/territory may choose to publicly-fund various optional treatments so an individual's legal entitlement to these optional services vary from jurisdiction to jurisdiction

Section 3

Question Answer
Simple assault - criminal lawintentionally applying force to another without consent (the prosecutor must prove the absence of consent); or attempting or threatening to apply force to another, if one has or apparently has the PRESENT ability to carry out the threat.
Consent obtained by use or threat of force, fraud, or exercise of authority provides no defense
Assault with a weapon or causily bodily harmassault while carrying, threatening to use, or using a weapon (or an imitation weapon),
assault causing bodily harm requires a "hurt or injury" that is more than transient or trifling
Aggravated assaultwounding, maiming, disfiguring, or endangering
Sexual assault, sexual assault with a weapon, while threatening a third party or causing bodily harm, and aggravated sexual assaultassaults of a sexual nature (intentional application of force to another of a sexual nature, without consent, or attempting or threatening such conduct)
Consent of person under 16 of age provides no defense except in 2 situations, what are they?12 or 13 and the accused is less than 2 years older;
14 or 15 and the accused is less than 5 years older
Sexual exploitationany sexual contact with a 16 or 17 year old by a person in a relationship of trust or authority.
Also an offence to encourage 16 or 17 year old to engage in such conduct
Criminal harrassment (stalking)knowing that a person is harassed or being reckless in this regard and engaging in specified conduct, without lawful authority, that would reasonable CAUSE the person to fear for his or her own or another person's safety;
specified conduct includes: repeatedly following or communicating with another, watching a person's home or workplace, otherwise engaging in threatening behaviour;
non-threatening comments that are merely offensive do not provide a sufficient basis for a charge
Transmitting intimate images without consent (cyberbullying)offense to transmit, distribute or make available an intimate image of others knowing that they did not consent or being reckless in this regard; only an offense if the person shown had a reasonable expectation of privacy with regard to the image
Providing necessaries of lifeparents' or guardians' failure to provide necessaries of life without a lawful excuse to their children who are under 16, if the children are destitute or in necessitous circumstances, or if the failure endangers their life, or has or is likely to permanently danger their health;
Failure to provide necessaries of life to those under your charge without lawful excuse, if they cannot withdraw and provide for themselves, and failure endangers their life or has or is likely to permanently endanger their health
Counselling, aiding, or abetting suicidecounselling, aiding or abetting anyone to commit suicide whether or not it is attempted or ensued. (Criminal code. s 241). The accused must deliberately encourage, assist or induce, the person to commit suicide, merely advising or providing info is not enough.
A person's consent to having death inflicted on him or herself provides no defense to criminal liability (Criminal Code s. 14). .
What did Carter vs. Canada case create?In the case of Carter vs. Canada, SCC held that ss 241 and s. 14 violated the Charter regarding physicians providing medical aid in to competent adults with grievous and irremediable medical conditions causing enduring and intolerable suffering. Carter established a narrow exception to criminal liability in such cases, it did not create a legal right to medical aid in dying;
Declaration of invalidity suspended for 12 months to permit Feds to amend the law. In response, the Feds enacted Bill C-14 shortly after the deadline ended.
Civil Law ProcessWhile anyone can sue anyone for anything, the most trivial and mertiless claims are often dismissed at an early stage
Parties can settle at any time and on any terms they choose. The process is designed to encourage settlements.
What are the 3 parties to a civil action?pleadings, examination for discovery, trial
Pleadingsstatement of claim sets out the plaintiff's case against the defendant. It is filed with a court clerk and must be served on the defendant
Statement of defense sets out the defendant's response to the statement of claim. If the defendant fails to respond, the plaintiff will get a default judgement
Examination for discoverypre-trial legal proceedings at which parties examine each other's witness and documents
discoveries permit counsel to assess the strength of the opposing party's case, and minimize surprise at trial
The vast majority of cases are abandoned, dismissed on preliminary motions or settled prior to trial
Trialthe parties present evidence and arguments in court. The judge or jury considers the evidence, issues a decision and determines what remedy, if any, is to be given
Plaintiff have the burden of proving that they have suffered a loss or harm that is recognized as being recoverable on a balance of probabilities (i.e. more likely than not)
A damage award, the most common remedy, only gives the plaintiff a legal right to seek recovery and not the actual money awarded
Batteryintentional bringing about of harmful or socially offense physical contact with the person of another
Any intentional nonconsensual physical contact is viewed as offense, except for "socially-accepted practices" but these change over time
The plaintiff need not be physically harmed by the battery or aware of it at the time
Once physical contact is proven, the defendant will be held liable unless he or she can establish a defence
A mistaken belief that the plaintiff consented provides no defence
Assault - civil lawintentional creation in the mind of another of a reasonable apprehension of imminent physical contact
the plaintiff need not fear for his or her physical safety; a threatened offensive physical contact is sufficient
the defendant need not have actual ability or intention to carry out the threat, provided the plaintiff reasonably believed that the threat was going to be carried out (e.g. defendant with unloaded gun threatens to shoot the plaintiff)
Individual liability- health professionals are independent decision maker who are accountable for decisions that they make
- it is no defence to a civil suit for a health professional to argue that they were following orders or management policy
- administrators can be held civilly liable in negligence for their own conduct, including screening, hiring, placing, monitoring subordinate staff
- nonprofessionals who purport to provide professional services are held to the standards of a professional
Vicarious liabilityemployer/employee relationships
imposed on individuals based on their relationship with the wrongdoer and not personal fault on their part
Traditionally, employers were only held vicariously liable for civil wrongs that employees committed in the "course of employment" -> now held vicariously liable for civil wrongs that volunteers, trainees, trainees, and students commit in carrying out tasks under the employer's directions
Various liability does not diminish the employee's personal liability for the civil wrong
Vicarious liability applies to "master/servant" relationships, but not to independent contractors
Traditionally, employers were not vicariously liable for their employee's intentional criminal acts, because such conduct was viewed as falling outside the scope of employment -> widespread abuse of children caused SCC to define vicarious liability in terms of whether the employer put the employees in a position of trust, control, or power over the plaintiff that increased the likelihood of sexual/physical abuse
Vicarious liability test1. imposed if existing cases clearly establish its applicability in the circumstances, 2. imposed if the party is in a "sufficiently close" relationship with the wrongdoer and there is a "significant connection" between the wrongful act and the wrongdoer's assigned task or authorized conduct

Section 4

Question Answer
Child and Family Services Actthe legal principles applicable to various services provided to children;
the age of consent for those services; and
the mandatory reporting of children in need of protection
Coroners Actprovincial corner's responsibilities
the duty of health professionals and institutions to report specified categories of deaths to the coroner; and
the duty that EVERYONE has to report unexpected and suspicious deaths to the police or a coroner (e.g. homicides, suicides, deaths resulting from misadventure or negligence)
Health Protection and Promotion Actgoverns boards of health and their broad public health responsibilities, including:
- monitoring communicable diseases;
- overseeing sanitation and immunization programs;
- providing public health education; and
- inspecting restaurants, food processing plants, and other facilities
also governs the obligation of health facilities and regulated health professionals to report communicable, reportable and virulent diseases to the medical officer of health
Trillium Gift of Life Network Actgoverns inter-vivos (live) and post-mortem donations of organs and tissues, and post-mortem donations of bodies for transplant, education, and scientific purposes
(prohibits those who are not competent and those who are under 16 from making inter-vivo donations of non-regenerative tissue)
Mental Health Actgoverns administration of pyschiatric hospitals, and the criteria and procedures for voluntary, informal, and involuntary admission, and community treatment orders
Public Hospitals Actgoverns the administration of public hospitals
provide for provincial funding of hospitals
Limitations Act, 2002creates a standard limitation period of 2 years for almost all civil actions
A limitation period only begins to run when:
- the plaintiff knew or ought to have known the facts upon which the wrongful act was based;
- understood the harms that the wrong caused; and
- was physically, mentally and emotionally able to bring an action

Postphoning the onset of limitation period has important implications for record keeping, particularly in the case of children
2016 amendments eliminated the limitations period for assault and sexual assaults involving minors and others in specified relationships of dependency, trust, or vulnerability