Presentation is loading. Please wait.

Presentation is loading. Please wait.

Medical Legal Issues in Primary Care Bridging the Gap between the CPSO and the CMPA Jose Silveira MD FRCPC Director, Portuguese Mental Health and Addiction.

Similar presentations


Presentation on theme: "Medical Legal Issues in Primary Care Bridging the Gap between the CPSO and the CMPA Jose Silveira MD FRCPC Director, Portuguese Mental Health and Addiction."— Presentation transcript:

1 Medical Legal Issues in Primary Care Bridging the Gap between the CPSO and the CMPA Jose Silveira MD FRCPC Director, Portuguese Mental Health and Addiction Services University Health Network Assistant Professor, Department of Psychiatry, University of Toronto

2 Medico-Legal Guides CPSO CPSO Specific to Ontario Specific to Ontario Professional Governance Professional Governance Public protection Public protection CMPA General and specific Assistance to you Your protection

3 Exercise 1 What are the 2 most common medico-legal issues you encounter in your practice? 1.2.

4 Exercise 2 Under what circumstances do you not require a patient’s consent to release his/her medical records. Under what circumstances do you not require a patient’s consent to release his/her medical records.

5 Exercise 3 What are the limitations to confidentiality?

6 Focus Greatest Frequency Greatest Frequency Greatest Distress Greatest Distress Greatest Risk Greatest Risk

7 Outline 1. Informed Consent 2. Capacity to consent to treatment 3. Release of information 4. Mandatory Reporting 5. Duty to Warn 6. “Firing” a Patient

8 Scenario 1 You diagnose a 32 year old female with a major depressive episode. You diagnose a 32 year old female with a major depressive episode. You recommend she start an antidepressant. You recommend she start an antidepressant. What information should you convey? Outline the discussion you would have with the patient prior to initiating treatment.

9 Informed Consent

10 Valid Consent Valid Consent Specific Specific Voluntary Voluntary Informed Informed Given by capable patient Given by capable patient Absence of duress Absence of duress

11 Informed Consent Physician disclosure Physician disclosure Diagnosis Diagnosis Treatment Treatment Consequences Consequences Risks Risks Benefits Benefits Alternatives to proposed treatment Alternatives to proposed treatment Prognosis Prognosis With treatment With treatment Without treatment Without treatment

12 Informed Consent Supreme Court of Canada Supreme Court of Canada Nature of treatment Nature of treatment Seriousness Seriousness Material risks Material risks Answer any questions Answer any questions

13 Informed Consent 4 Exceptions 4 Exceptions Emergency Emergency Therapeutic Privilege Therapeutic Privilege Waiver Waiver Incompetent Patient Incompetent Patient

14 Therapeutic Privilege Decision made by physician Decision made by physician Full disclosure will negate benefits of informed decision Full disclosure will negate benefits of informed decision Alters degree of disclosure Alters degree of disclosure Basic treatment disclosed Basic treatment disclosed Documentation Rationale for using therapeutic privilege Information disclosed

15 Waiver Decision by patient Decision by patient Patient waives right to full disclosure and questions Patient waives right to full disclosure and questions Alters degree of disclosure Alters degree of disclosure Basic treatment explained Basic treatment explained Documentation Patient’s waiver Specificity Your rationale for accepting

16 Informed Consent Documentation Signed consent in office practice Signed consent in office practice safest safest not necessary in most cases not necessary in most cases

17 Consent Documentation Patient’s capacity Patient’s capacity Diagnosis Diagnosis Proposed treatment Proposed treatment Risks and benefits Risks and benefits Alternatives Alternatives Prognosis with and without Prognosis with and without Concerns raised by patient Concerns raised by patient Response to concerns Response to concerns Patient’s decision Patient’s decision

18 Consent in Psychotherapy Osheroff vs. Chestnut Lodge Osheroff vs. Chestnut Lodge Treated with psychodynamic psychotherapy and no medication in institution A – no change Treated with psychodynamic psychotherapy and no medication in institution A – no change Treated with medication in institution B – improved Treated with medication in institution B – improved Institution A sued for not informing patient of alternative treatments Institution A sued for not informing patient of alternative treatments Case settled out of court in patient’s favour – no case law Case settled out of court in patient’s favour – no case law

19 Capacity to consent to treatment Who can do an assessment? Who can do an assessment? When should I be thinking about this issue? When should I be thinking about this issue? What documentation is required? What documentation is required? Who do I need to inform? Who do I need to inform? How do I decide on substitute consent giver? How do I decide on substitute consent giver?

20 Basics of Capacity Capacity to consent is assumed unless there are reasonable grounds to believe otherwise Capable Understand the nature and anticipated effect of proposed treatment AND Alternatives including the consequences of no treatment

21 Capacity to Consent Recognizes they have an illness Understands basic information regarding proposed treatment Basic capacity to reason Understands risks and benefits Understands consequences of treatment versus no treatment

22 Substitute Consent List 1. Guardian 2. Attorney for personal care 3. Representative appointed by Consent and Capacity Board 4. Spouse or partner 5. Child - parent or individual/agency entitled to give or refuse consent instead of a parent (this does not include a parent who has only a right of access) 6. Parent with right of access only 7. Brother or sister 8. Any other relative (related by blood, marriage or adoption) 9. Public Guardian and Trustee

23 Advance Directives Made while patient is competent to consent in the event that the patient becomes mentally incapacitated Sometimes referred to as a living will May be used to appoint substitute decision maker

24 Scenario 2 You receive a letter from a patient’s lawyer requesting a copy of the patient record. You receive a letter from a patient’s lawyer requesting a copy of the patient record. At an earlier visit the said patient had informed you that a lawyer would be requesting a copy of the clinical record. At an earlier visit the said patient had informed you that a lawyer would be requesting a copy of the clinical record. Do you have the consent to release information you require? What consent form would you use? You have been doing psychotherapy with the patient for 6 years – what information must you release?

25 Release of Records

26 Release of information What form do I use and what form do I accept? What form do I use and what form do I accept? When asked for all of your notes do you have to comply? When asked for all of your notes do you have to comply? Are you allowed to refuse? Are you allowed to refuse? How quickly should you respond? How quickly should you respond? “circle of care”? “circle of care”? What is the expiry date of signed consent? What is the expiry date of signed consent? Can a patient verbally override a previously signed consent? Can a patient verbally override a previously signed consent?

27 Release of Records With express consent: With express consent: competent patient competent patient patient signs an Authorization for Disclosure of Medical Record Information form. patient signs an Authorization for Disclosure of Medical Record Information form. not mentally competent not mentally competent substitute decision-maker signs an Authorization for Disclosure of Medical Record Information form. substitute decision-maker signs an Authorization for Disclosure of Medical Record Information form.

28

29 With Implied/Without consent In an emergency In an emergency the patient experiencing severe suffering or would put the patient at risk of sustaining serious bodily harm the patient experiencing severe suffering or would put the patient at risk of sustaining serious bodily harm To the personal representative of a patient who has died To the personal representative of a patient who has died To a person determining capacity for treatment, admission to a care facility, or personal assistance services To a person determining capacity for treatment, admission to a care facility, or personal assistance services

30 With Implied/Without consent Disclosure is necessary to eliminate or reduce a significant risk of serious bodily harm to a person or group of persons Disclosure is necessary to eliminate or reduce a significant risk of serious bodily harm to a person or group of persons Disclosure for the purpose of regulating the medical profession Disclosure for the purpose of regulating the medical profession CTO CTO To a physician who is considering issuing or renewing, or who has issued or renewed a CTO To a physician who is considering issuing or renewing, or who has issued or renewed a CTO To a physician or other person named in a community treatment plan as being involved in the person’s care To a physician or other person named in a community treatment plan as being involved in the person’s care physician or other person must make the request in writing physician or other person must make the request in writing

31 Disclosure Required by law MOHLTC Monitoring of claims for payment MOHLTC Monitoring of claims for payment Summonses, subpoenas and court orders Summonses, subpoenas and court orders Read carefully Read carefully Provide only requested information Provide only requested information Reports under the Workplace Safety and Insurance Act Reports under the Workplace Safety and Insurance Act Related to the claim only Related to the claim only

32 Confidentiality Limitations Limitations Duty to warn Duty to warn Risk to self or others Risk to self or others Child welfare Child welfare Operating a motor vehicle Operating a motor vehicle Substitute consent Substitute consent Subpoena Subpoena Witness in court Witness in court

33 Scenario 3 Another physician has referred your patient to a psychiatrist. Another physician has referred your patient to a psychiatrist. The psychiatrist calls you to clarify the patient’s treatment history with you. The psychiatrist calls you to clarify the patient’s treatment history with you. What do you do?

34 Circle of Care

35 implied consent implied consent for the purposes of providing health care for the purposes of providing health care physicians can share information with others involved within the patient’s circle of care without asking for the patient’s consent physicians can share information with others involved within the patient’s circle of care without asking for the patient’s consent Exception - “lockbox” Exception - “lockbox”

36 Circle of Care PHIPA does not define “circle of care” PHIPA does not define “circle of care”

37 Circle of Care – Definition* health care practitioners health care practitioners public or private hospitals public or private hospitals pharmacies pharmacies laboratories laboratories ambulance services ambulance services community care access corporations community care access corporations Person’s providing care named in CTO Person’s providing care named in CTO (person must make the request in writing) (person must make the request in writing) *Supported by the: Ontario Hospital Association, Ontario Hospital eHealth Council, Ontario Medical Association, and the Office of the Information and Privacy Commissioner of Ontario.

38 Scenario 4 Your patient is anxious to tell you something about their childhood that they have never previously revealed and asks you to never release the information to anyone. Your patient is anxious to tell you something about their childhood that they have never previously revealed and asks you to never release the information to anyone. A psychiatrist also treating the patient calls you and asks if you are aware of any significant childhood events. What should you do?

39 “Lock boxes” Specific Personal Health Information Specific Personal Health Information Patient expresses restrictions to physician Patient expresses restrictions to physician Over-rides “circle of care” Over-rides “circle of care”

40 “Lock boxes” Your Responsibility Your Responsibility Inform others in circle of care that complete information can not be conveyed when relevant Inform others in circle of care that complete information can not be conveyed when relevant Discuss with patients the potential health risks Discuss with patients the potential health risks Document discussion Document discussion Disclosures required by law overrides “lock box” Disclosures required by law overrides “lock box” Nonetheless a reasonable attempt be made to obtain patient consent Nonetheless a reasonable attempt be made to obtain patient consent

41 Scenario 5 A patient reveals to you that his previous family doctor massaged his groin during therapy sessions to “release the beast”. A patient reveals to you that his previous family doctor massaged his groin during therapy sessions to “release the beast”. The said physician is a colleague you have know for 7 years. The said physician is a colleague you have know for 7 years. What do you do?

42 Mandatory Reporting

43 Child Abuse Child Abuse Motor Vehicles Motor Vehicles Pilots, Air Traffic Controllers Pilots, Air Traffic Controllers Railway Safety Railway Safety Merchant Seamen Merchant Seamen Sexual Abuse by Health Professionals Sexual Abuse by Health Professionals If you know the name of the HP must file a report in writing, with the Registrar of the College to which the alleged abuser belongs. If you know the name of the HP must file a report in writing, with the Registrar of the College to which the alleged abuser belongs. Reports must be filed within thirty days Reports must be filed within thirty days Only reveal patient’s name if patient consents in writing Only reveal patient’s name if patient consents in writing

44 Mandatory Reporting Discuss your concerns and worries about mandatory reporting. Discuss your concerns and worries about mandatory reporting.

45 Case example Single mother with daughter Single mother with daughter MDD with psychotic features MDD with psychotic features CAS not informed CAS not informed Patient suffocates daughter with pillow Patient suffocates daughter with pillow After resolution of psychosis and several years of treatment began a law suit against both psychiatrist and family physician for not enlisting the assistance of CAS After resolution of psychosis and several years of treatment began a law suit against both psychiatrist and family physician for not enlisting the assistance of CAS

46 Child Protection

47 Child Abuse or Neglect The Child and Family Services Act (CFSA), The Child and Family Services Act (CFSA), Report suspicions of child abuse or neglect Report suspicions of child abuse or neglect Release the information on which the suspicion is based. Release the information on which the suspicion is based. Report must be made immediately and directly to CAS Report must be made immediately and directly to CAS Report can not be made by someone else on your behalf Report can not be made by someone else on your behalf Make second, third … on same case Make second, third … on same case

48 Child Welfare Reportable Incidents Reportable Incidents Harm caused by a willful act Harm caused by a willful act Harm arising due to neglect Harm arising due to neglect The following incidents must be reported: The following incidents must be reported:

49 Physical Harm or Abuse Has suffered Has suffered Is at risk to suffer Is at risk to suffer The child requires medical treatment The child requires medical treatment Guardian does not provide treatment Guardian does not provide treatment refuses/unable/unavailable to consent to the child’s treatment. refuses/unable/unavailable to consent to the child’s treatment.

50 Sexual Harm or Abuse Sexually molested or sexually exploited, or at risk Sexually molested or sexually exploited, or at risk Guardian knew or should have known but failed to protect the child Guardian knew or should have known but failed to protect the child

51 Emotional Harm Occurred or at risk of occurring Occurred or at risk of occurring Guardian does not provide services or treatment Guardian does not provide services or treatment Refuses or is unable/unavailable to consent to services or treatment Refuses or is unable/unavailable to consent to services or treatment The child suffers from a mental, emotional or developmental condition and guardian does not provide treatment, refuses/unable/unavailable to consent to treatment The child suffers from a mental, emotional or developmental condition and guardian does not provide treatment, refuses/unable/unavailable to consent to treatment

52 Abandonment Abandoned child Abandoned child Guardian has died, or is unavailable and has not made adequate plans regarding the child’s care Guardian has died, or is unavailable and has not made adequate plans regarding the child’s care The child is in a residential placement and the parent refuses/unable to resume the child’s care and custody The child is in a residential placement and the parent refuses/unable to resume the child’s care and custody

53 Child welfare Criminal Acts Criminal Acts The child is less than twelve years old The child is less than twelve years old Killed or seriously injured another person Killed or seriously injured another person Serious damage to property Serious damage to property Guardian refuses/unable/unavailable to consent to services or treatment. Guardian refuses/unable/unavailable to consent to services or treatment. Has on more than one occasion either injured another person or damaged his or her property Has on more than one occasion either injured another person or damaged his or her property Encouraged by guardian Encouraged by guardian Due to lack of supervision Due to lack of supervision

54 Alcohol Misuse

55 Highest risk factor for motor vehicle- related collisions and injury. 40% of population involved (life time prevalence) Fatal Collisions 35% - 40% involve an impaired driver

56 Alcohol Misuse Abuse - 15% of drinkers Dependence – 5% of drinkers 3 times more likely to die of injury than cirrhosis Withdrawal symptoms also impairs driving

57 Must Inform Diagnosis alcohol dependence alcohol withdrawal induced seizures

58 Must Inform Patients demonstrating drinking and driving behaviour DUI Informed by family Attends your office impaired and has driven

59 Reinstatement 1 year Dependence Withdrawal seizure 3 months Abuse + successful treatment

60 Scenario 6 Your patient reveals that she has relocated an old friend that she has dreamed of killing for many years. Your patient reveals that she has relocated an old friend that she has dreamed of killing for many years. Questioning reveals that the patient has plans to run the friend over with a car and has watched her return home late on Friday nights 2 weeks in a row. Questioning reveals that the patient has plans to run the friend over with a car and has watched her return home late on Friday nights 2 weeks in a row. What do you do?

61 Duty to warn Case law Case law Circumstances Circumstances Can I use a form 1 Can I use a form 1 Is completing a form 1 sufficient or do I still have a duty to warn Is completing a form 1 sufficient or do I still have a duty to warn Can I be sued for breaching confidentiality Can I be sued for breaching confidentiality

62 Duty to Warn Based on clinical judgment, Based on clinical judgment, Court suggested guidelines: Court suggested guidelines: there is a clear risk to an identifiable person or group there is a clear risk to an identifiable person or group there is a risk of serious bodily harm or death there is a risk of serious bodily harm or death the danger is imminent. the danger is imminent.

63 Duty to Warn Courts have not been able to provide any clear guidance as to the scope of information that should be disclosed under the Duty to Inform. As such, the College advises physicians to contact the CMPA for guidance. Courts have not been able to provide any clear guidance as to the scope of information that should be disclosed under the Duty to Inform. As such, the College advises physicians to contact the CMPA for guidance.

64 Duty to Warn Document Document the threat, the threat, the situation, the situation, the physician’s opinion the physician’s opinion the information on which the opinion is based. the information on which the opinion is based.

65 Permissible but not Mandatory 1. Imminent Danger 2. Incapacity College expects physicians to take action when they have reason to believe that another is incapable of properly treating patients due to a physical or mental condition or disorder College expects physicians to take action when they have reason to believe that another is incapable of properly treating patients due to a physical or mental condition or disorder 3. Disclosure of Harm that the patient has suffered harm in the course of receiving health care that the patient has suffered harm in the course of receiving health care

66 Scenario 7 Your patient is being charged criminally by his previous employer. A police officer investigating the case arrives at your office requesting a copy of your patient’s clinical record in its entirety. Your patient is being charged criminally by his previous employer. A police officer investigating the case arrives at your office requesting a copy of your patient’s clinical record in its entirety. What do you do?

67 Confusing circumstances Disclosure to police Disclosure to police not mandatory in the absence of a legal obligation not mandatory in the absence of a legal obligation Expressed consent required Expressed consent required Document Document Signed patient consent Signed patient consent the officer’s name and badge number, the officer’s name and badge number, the request for information, the request for information, the information provided, the information provided, photocopy authority for the disclosure photocopy authority for the disclosure e.g., photocopy of consent, reporting obligation, search warrant or summons e.g., photocopy of consent, reporting obligation, search warrant or summons

68 Scenario 9 You find yourself growing increasingly irritated with a patient for reasons you cannot figure out. You find yourself growing increasingly irritated with a patient for reasons you cannot figure out. In cases where you do have the right to “fire” a patient what should you do?

69 Firing a patient Ethically Permitted Ethically Permitted Physician Requirements Physician Requirements Provide adequate notice Provide adequate notice Provide urgent care pending patient finding alternate care Provide urgent care pending patient finding alternate care

70 Firing a patient Patient may Patient may Make claim of abandonment Make claim of abandonment CPSO complaint CPSO complaint

71 Firing a patient Inform the patient in writing Inform the patient in writing In person unless dangerous In person unless dangerous File letter to chart File letter to chart Advise patient to find new doctor Advise patient to find new doctor Provide reasonable notice Provide reasonable notice Suggest the CPSO for assistance or visit the College web site at Suggest the CPSO for assistance or visit the College web site at

72 Firing a patient Obtain written consent for transfer of records Obtain written consent for transfer of records Retain original records Retain original records Write a transfer note outlining active issues Write a transfer note outlining active issues Inform your staff Inform your staff Consider notifying other health care providers Consider notifying other health care providers Document your steps in patient record Document your steps in patient record

73 Sample Letter from CPSO Dear (patient's name): As I told you the other day, my first obligation as a medical doctor is to provide safe and effective care to all my patients. This I can only do in the context of a satisfactory physician/patient relationship in which we must both participate willingly.

74 Sample Letter from CPSO (outline your reasons) In reviewing your medical record, as I did with you the other day, it has become evident to me that you are unwilling to comply with the medical advice that I have given you for the treatment of your condition. It seems that you feel that the treatment is not necessary, but you will recall that I indicated to you that, in my opinion, it is extremely important that you continue this treatment. Describe any other reasons for ending a doctor-patient relationship e.g., drug seeking by the patient, a breakdown in your interpersonal relationship, disagreements with relatives, etc.

75 Sample Letter from CPSO In these circumstances, I do not believe that it is in your interest for me to continue as your physician. I therefore regret to inform you that I will not be in a position to provide you with further medical services after (date ? this time will vary, but you should give at least 2 to 3 weeks notice). Until that date I will be available to render emergency services to you, but I will not be able to provide elective care.

76 Sample Letter from CPSO I urge you to obtain the services of another physician satisfactory to you as soon as possible. When you have had an opportunity to see your new physician, please ask him or her to contact me and, with your consent, I will be pleased to provide a summary of my care of you while you have been my patient. Yours very truly, Signature of physician

77 Discussion

78 References Consent Legislation Health Care Consent Act, 1996 S.O. 1996, Chapter 2 Schedule A Health Care Consent Act, 1996 S.O. 1996, Chapter 2 Schedule A Health Care Consent Act Health Care Consent Act Mental Health Act R.S.O. 1990, CHAPTER M.7 Mental Health Act R.S.O. 1990, CHAPTER M.7 Mental Health Act R.S.O. Mental Health Act R.S.O. Substitute Decisions Act, 1992 S.O. 1992, CHAPTER 30 Substitute Decisions Act, 1992 S.O. 1992, CHAPTER 30 Substitute Decisions Act Substitute Decisions Act

79 References Privacy Legislation Personal Health Information Protection Act, 2004 S.O. 2004, chapter 3 Schedule A Personal Health Information Protection Act, 2004 S.O. 2004, chapter 3 Schedule A Personal Health Information Protection Act Personal Health Information Protection Act Personal Information Protection and Electronic Documents Act 2000, c. 5 Personal Information Protection and Electronic Documents Act 2000, c. 5 Personal Information Protection and Electronic Documents Act 2000 Personal Information Protection and Electronic Documents Act 2000

80 Mandatory Reporting References Determining Medical Fitness to Drive: A Guide for Physicians, 6th ed, Canadian Medical Association. Determining Medical Fitness to Drive: A Guide for Physicians, 6th ed, Canadian Medical Association. Ferris, L. et al: Defining the physician’s duty to warn: Consensus Statement of Ontario’s Medical Expert Panel on Duty to Inform. CMAJ. 1998; 158: Ferris, L. et al: Defining the physician’s duty to warn: Consensus Statement of Ontario’s Medical Expert Panel on Duty to Inform. CMAJ. 1998; 158: Reporting Child Abuse and Neglect: Your Responsibilities Under the Child and Family Services Act, Ministry of Community and Social Services. Reporting Child Abuse and Neglect: Your Responsibilities Under the Child and Family Services Act, Ministry of Community and Social Services.

81 Websites Consent and Capacity Board McMaster University PSYCHDIRECT: Evidence Based Mental Health and Education Psychiatry and the Law w/psych&law-overview.htm w/psych&law-overview.htm w/psych&law-overview.htm w/psych&law-overview.htm

82 Websites Overview of Brian’s Law  ub/mental/brianslaw.html ub/mental/brianslaw.html ub/mental/brianslaw.html Brian’s Law CTO Brian’s Law CTO ub/mental/treatment_order.html ub/mental/treatment_order.html ub/mental/treatment_order.html ub/mental/treatment_order.html

83 Websites PERSONAL HEALTH INFORMATION PROTECTION ACT, 2004: AN OVERVIEW FOR HEALTH INFORMATION CUSTODIANS PERSONAL HEALTH INFORMATION PROTECTION ACT, 2004: AN OVERVIEW FOR HEALTH INFORMATION CUSTODIANS tion/priv_legislation/info_custodians.pdf tion/priv_legislation/info_custodians.pdf tion/priv_legislation/info_custodians.pdf tion/priv_legislation/info_custodians.pdf Information and Privacy Commissioner of Ontario Information and Privacy Commissioner of Ontario _ID=1&P_ID=1&U_ID=0 _ID=1&P_ID=1&U_ID=0 _ID=1&P_ID=1&U_ID=0 _ID=1&P_ID=1&U_ID=0 Psychiatric Patient Advocate Office Psychiatric Patient Advocate Office

84 websites Forms Forms Ontario Government Mental Health Forms Ontario Government Mental Health Forms blic/forms/form_menus/mental_fm.html blic/forms/form_menus/mental_fm.html blic/forms/form_menus/mental_fm.html blic/forms/form_menus/mental_fm.html Consent to Release personal health information Consent to Release personal health information viders/legislation/priv_legislation/consen t/consent_disclose_form.pdf viders/legislation/priv_legislation/consen t/consent_disclose_form.pdf viders/legislation/priv_legislation/consen t/consent_disclose_form.pdf viders/legislation/priv_legislation/consen t/consent_disclose_form.pdf


Download ppt "Medical Legal Issues in Primary Care Bridging the Gap between the CPSO and the CMPA Jose Silveira MD FRCPC Director, Portuguese Mental Health and Addiction."

Similar presentations


Ads by Google