Legal System in Canadian Medicine

Introduction to Medical Law for MCCQE1

Understanding the Canadian Legal System is a critical component of the Population Health, Ethical, Legal, and Organizational Aspects of Medicine (PHELO) category for the MCCQE1. As a future physician in Canada, you are expected to navigate the intersection of clinical practice and the law, adhering to the CanMEDS Professional Role.

This guide covers the fundamental legal structures, the distinction between federal and provincial jurisdictions, medical regulation, and the specific legal frameworks governing negligence and consent in Canada.

Structure of the Canadian Legal System

The Canadian legal system is derived from the British system (Common Law) and the French system (Civil Law). For MCCQE1 preparation, you must understand how these systems influence medical liability and legislation.

Federal vs. Provincial Jurisdiction

Under the Constitution Act, 1867, powers are divided between the federal and provincial governments. This division is frequently tested in the context of healthcare delivery.

Medical Regulation and The Profession

In Canada, medicine is a self-regulating profession. This means the government has delegated the authority to regulate the practice of medicine to provincial colleges.

The Regulatory Colleges

Each province/territory has a College (e.g., College of Physicians and Surgeons of Ontario - CPSO) with a mandate to protect the public.

Key Functions of the Colleges:

1. Registration and licensing of physicians.
2. Setting standards of practice.
3. Investigating complaints and disciplining physicians.
4. Quality assurance.

The Canadian Medical Protective Association (CMPA)

Unlike the Colleges (which protect the public), the CMPA provides liability protection and legal advice to physicians.

Medical Negligence (Malpractice)

For a patient to succeed in a medical negligence lawsuit in Canada (Common Law jurisdictions), they must prove four specific elements on a “balance of probabilities” (more likely than not).

The “Good Samaritan”

In Canada, most provinces have Good Samaritan Acts that protect health professionals who voluntarily provide emergency aid at the scene of an accident from liability, provided they do not act with gross negligence.

Consent, Capacity, and Privacy

Consent

To be valid in Canadian law, consent must be:

1. Voluntary: Free from coercion.
2. Informed: The patient must understand risks, benefits, alternatives, and consequences of refusal.
3. Capable: Given by a person with the mental capacity to make the decision.
4. Specific: To the treatment proposed.

Capacity and the “Mature Minor”

Canada generally does not define a specific age of consent for medical treatment (unlike the age of majority).

Privacy Legislation

• PIPEDA (Federal): Personal Information Protection and Electronic Documents Act. Applies to commercial activities and provinces without their own substantially similar legislation.
• Provincial Acts (e.g., PHIPA in Ontario): Govern the collection, use, and disclosure of personal health information within the health sector.

Breach of Privacy: Physicians have a legal duty to maintain confidentiality. Exceptions (Mandatory Reporting) include:

• Child protection (suspected abuse/neglect).
• Fitness to drive (reporting to Ministry of Transportation).
• Communicable diseases (Public Health).
• Gunshot/Stab wounds (varies by province, usually mandatory).
• Imminent risk of serious harm to an identifiable person (The Smith v. Jones principle).

Death Investigation Systems

Canada uses two systems to investigate sudden, unexpected, or violent deaths. The system depends on the province.

1. Coroner System (e.g., Ontario, BC, Quebec):

   • Coroners may or may not be physicians (depends on province; in Ontario, they are physicians).
   • They determine the cause and manner of death.
   • They can order inquests (public hearings) to make recommendations to prevent future deaths.
   • They do NOT assign blame or civil/criminal liability.

2. Medical Examiner System (e.g., Alberta, Manitoba, Nova Scotia):

   • Medical Examiners are always physicians (usually pathologists).
   • Focus is more strictly medical/pathological.

Canadian Guidelines

When preparing for the MCCQE1, refer to these authoritative bodies for legal and ethical guidelines:

• CMA Code of Ethics and Professionalism: The national standard for ethical practice.
• Tri-Council Policy Statement: Guidelines for ethical conduct in research involving humans.
• Provincial College Policies: Specifically regarding Medical Assistance in Dying (MAID), Opioid Prescribing, and Professional Boundaries.

Task List: Study Checklist for Legal Systems

• Review the CMA Code of Ethics.
• Understand the difference between Negligence and Error in Judgment.
• Memorize the list of Mandatory Reports in your province (or generally for Canada).
• Review the criteria for MAID (Medical Assistance in Dying) under the Criminal Code.
• Distinguish between Substitute Decision Maker (SDM) hierarchy and Power of Attorney.

Key Points to Remember for MCCQE1

• Standard of Care: Determined by what a reasonable colleague would do, not the “best possible” care.
• Documentation: In a court of law, “if it isn’t written down, it didn’t happen.”
• Apology Legislation: In many provinces, an apology is not an admission of guilt and cannot be used against a doctor in civil court. This encourages open disclosure of adverse events.
• Treating Family: Generally discouraged by Colleges unless it is a minor condition or an emergency where no other provider is available.
• Duty to Warn: If a patient poses a clear, serious, and imminent threat to an identifiable person or group, public safety overrides confidentiality (Smith v. Jones).

Sample Question

Clinical Scenario

A 52-year-old male truck driver presents to your clinic for a follow-up after suffering a generalized tonic-clonic seizure two weeks ago. An EEG and MRI confirm the diagnosis of epilepsy. He is started on anticonvulsant medication. You advise him that he cannot drive until his condition is stable for a period mandated by provincial guidelines (usually 6 to 12 months). He becomes angry and states, “If I can’t drive, I can’t work. I will lose my house. I feel fine now, and I am going to keep driving.” He storms out of the office.

Question

Which one of the following is the most appropriate next step in management regarding his license?

• A. Document the conversation and respect the patient’s confidentiality.
• B. Call the patient’s employer to inform them of his condition.
• C. Report the patient’s condition to the provincial Ministry of Transportation.
• D. Call the police to intercept the patient immediately.
• E. Ask the patient’s wife to hide his keys.

Explanation

The correct answer is:

• C. Report the patient’s condition to the provincial Ministry of Transportation.

Detailed Analysis

• C is correct: In almost all Canadian jurisdictions, physicians have a mandatory statutory duty (or an ethical duty in a few jurisdictions) to report patients who have a medical condition that may make it dangerous to operate a motor vehicle. This reporting is done to the Registrar of Motor Vehicles (Ministry of Transportation), not the police or employer. This duty overrides the patient’s right to confidentiality because of the significant risk to public safety.
• A is incorrect: While confidentiality is paramount, public safety overrides it in specific statutory situations like fitness to drive. Documentation alone is insufficient defence if the patient harms someone while driving.
• B is incorrect: Reporting directly to an employer is a breach of confidentiality. The correct legal channel is the Ministry of Transportation.
• D is incorrect: Calling the police is generally reserved for situations of immediate, imminent violence or danger (e.g., a drunk driver leaving the clinic). While the patient intends to drive, the standard administrative route is reporting to the Ministry, who will then suspend the license. Police might be involved if he is seen driving after suspension, but C is the primary professional obligation.
• E is incorrect: This is not a professional medical or legal intervention and does not fulfill the physician’s duty to report.

References

1. Canadian Medical Protective Association (CMPA). Duties and Responsibilities: Expectations of Physicians in Practice. Available at: CMPA-ACPM.ca 
2. Medical Council of Canada (MCC). Objectives for the Qualifying Examination. Category: Population Health, Ethical, Legal, and Organizational Aspects of Medicine.
3. The Canadian Medical Association (CMA). CMA Code of Ethics and Professionalism.
4. Picard, E. & Robertson, G. (2017). Legal Liability of Doctors and Hospitals in Canada (5th ed.). Thomson Reuters.
5. Government of Canada. Constitution Act, 1867.