Medical jurisprudence, broadly defined, covers the relationship between a patient and a health-care provider such as a doctor, nurse, dentist, physiotherapist, or even an institution such as a HOSPITAL. The law has established standards, it regulates practice and provides a mechanism for patients to claim compensation in the case of an injury. The source of the law may be statutes (provincial or federal) or judge-made law. While the legal principles set out by judges in case law are generally consistent throughout Canada, there are some variations in legislation from province to province.
Medical jurisprudence is concerned with many basic and profound issues, such as a patient's right to consent to health care. Every person, including children who understand the nature and consequences of treatment, has the right to be fully informed of the risks of a procedure and to choose whether to proceed with it or not (seeMEDICAL ETHICS), even if refusing treatment will result in the death of the patient. In 1980 the Supreme Court of Canada stated that the standard for the disclosure of risks must be what the reasonable patient would want to know and not what health-care professionals customarily choose to explain. Another basic legal principle is the requirement that in carrying out health care a person or institution must exercise reasonable skill, knowledge and judgement. This standard is derived from the custom or common practice of the profession or group; ie, that a doctor must perform as a reasonable doctor would in the circumstances (seeMALPRACTICE).
If this standard is not met and a patient suffers injuries as a consequence, the health-care provider may be found negligent and have to pay monies to the patient as compensation. Very complex issues arise when the proposed medical treatment is experimental or when it involves organ transplantation, artificial insemination or in vitro fertilization. Then, not only must the right of the individuals involved be considered but the values and goals of society as well.
A number of problems have emerged from modern medical practice where the "team" approach to health care is used and where the hospital assumes a major role as a health-care provider. Very often a patient may be cared for by many highly trained doctors and nurses, and frequently there is an overlap in their functions; in many cases that have gone to court, it is clear that each member of the team has deferred to the others his or her responsibility in decision making or communication, with the result that the patient has received substandard care. Cases have also arisen concerning whether or not a nurse should carry out a doctor's orders when he or she believes that they will be harmful to the patient. The law states that if a nurse carries out such an order he or she may be negligent and, as in the case of a lethal overdose of a drug, can be charged under the CRIMINAL CODE.
Accountability of Hospitals
Hospitals have assumed a greater role in providing health care and are increasingly being held accountable to patients. The earliest hospitals were charitable institutions and were shielded from liability by the courts, but modern hospitals are large, complex organizations that constitute the heart of the health-care system. A hospital as an employer is liable when any employee is held to have injured a patient through negligence. However, a hospital also has certain direct responsibilities to a patient, including the duty to select competent and qualified employees and to instruct and supervise them; to provide proper facilities and equipment; and to establish systems necessary to the safe operation of the hospital. Courts have recently noted that the public expects hospitals to provide competent medical treatment. For example, in the emergency department of a hospital a patient may receive medical treatment by a doctor who is provided by the hospital but who is not an employee of the hospital. Whether the hospital should be liable when such treatment is substandard remains to be resolved by the courts.
Resort to the Legal Process
Law suits by patients against health-care providers are increasing. Resort to the legal process brings difficulties for all parties. In some provinces the patient may have to make a preliminary application to the court for an order allowing him to gain access to his health records. Litigation is slow and costly, and those sued are usually concerned that the allegations made against them may affect their reputations. Even if the patient is successful, money can never compensate for the loss suffered. However, there is at present no alternative to the law suit for resolving a patient's claim for compensation. The alternative of reporting a health-care professional to his or her governing body for discipline, while sometimes effective for that purpose, does not result in compensation to a patient.