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What are the 3 legal questions every clinician should know how to answer?

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If you are a practicing clinician (nurse, doctor, dentist, midwife, psychologist, OT, PT, social worker etc.) there are three legal questions you should be able to answer:

  1. What laws apply to you?
  2. Who makes treatment and information decisions for your patients?
  3. What are your patients’ privacy rights?

I recently spoke at the Hamilton Health Sciences “Ethics and Advocacy” day for their psychologists – and we went through those questions.  Here are some highlights that are relevant to those of you practicing in Ontario:

Laws

There are more than 40 laws that apply in Ontario to health care facilities and clinical teams. Every clinician in Ontario needs to know about the following six laws:

  1. Health Care Consent Act
  2. Personal Health Information Protection Act
  3. Regulated Health Professions Act and profession specific laws
  4. Child and Family Services Act
  5. Human Rights Code
  6. Substitute Decisions Act

If you work in mental health, you may also need to know about the Mental Health Act, Criminal Code, Youth Criminal Justice Act.

Treatment and Information Decisions

There is no age of consent in Ontario to make treatment or information (privacy) decisions. That comes as a surprise to most parents and even to some clinicians.

All patients are presumed to be capable to make their own treatment and information decisions. But if there is a question of capacity – there is a two-part test every clinician should know:

  1. Is the individual ABLE to understand the information that is relevant to making a decision about the treatment (or information decision) AND
  2. Is the individual ABLE to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

Capable patients make their own treatment and information decisions.  Incapable patients have substitute decision-makers who make their decisions.

For privacy decisions, there is also a nuance involving children under the age of 16.  Stay with me – this gets a bit tricky.  Parents can ALSO consent to the collection, use and disclosure of information about their children so long as the information relates to treatment or counseling for which the child did not make their own decision. So parents would be allowed to consent to release vaccination records when the child was a baby but would not be allowed to make decisions about information relating to treatment for drug use or smoking cessation or sexual health or counseling for which a child made his/her own decisions. And if there is a dispute about an information decision between a parent and a capable child under the age of 16, the capable child’s wishes prevail.

Privacy

Sure, privacy gets complicated.  But there are four patient rights every clinician should know:

Subject to some exceptions, patients have a right to:

  1. Consent (or withhold or withdraw consent) to the collection, use or disclosure of their personal health information (PHI)
  2. Access a record of their own PHI (regardless of where you have documented that information beyond the traditional health record – such as in emails, transfer notes,  handwritten notes, schedules etc.)
  3. Ask for a correction to a record of PHI if it is inaccurate or incomplete for the purpose for which you hold that information
  4. “Lock” PHI from health care providers for health care purposes (“lockbox”)

Keep reading this blog for more information about the laws that apply to you.


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Kate Dewhirst Health Law

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