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
Medico-Legal Guides

CPSO
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Specific to Ontario
Professional
Governance
Public protection
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CMPA
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General and specific
Assistance to you
Your protection
Exercise 1
What are the 2 most common medico-legal
issues you encounter in your practice?
1.
2.
Exercise 2

Under what circumstances do you not
require a patient’s consent to release
his/her medical records.
Exercise 3
What are the limitations to confidentiality?
Focus



Greatest Frequency
Greatest Distress
Greatest Risk
Outline
1.
2.
3.
4.
5.
6.
Informed Consent
Capacity to consent to treatment
Release of information
Mandatory Reporting
Duty to Warn
“Firing” a Patient
Scenario 1


You diagnose a 32
year old female with a
major depressive
episode.
You recommend she
start an
antidepressant.


What information
should you convey?
Outline the discussion
you would have with
the patient prior to
initiating treatment.
Informed Consent
Informed Consent

Valid Consent

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Specific
Voluntary
Informed
Given by capable patient
Absence of duress
Informed Consent

Physician disclosure

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
Diagnosis
Treatment
Consequences
Risks
 Benefits



Alternatives to proposed treatment
Prognosis
With treatment
 Without treatment

Informed Consent

Supreme Court of Canada



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Nature of treatment
Seriousness
Material risks
Answer any questions
Informed Consent

4 Exceptions

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Emergency
Therapeutic Privilege
Waiver
Incompetent Patient
Therapeutic Privilege

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
Decision made by physician
Full disclosure will negate benefits of
informed decision
Alters degree of disclosure

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Basic treatment disclosed
Documentation


Rationale for using therapeutic privilege
Information disclosed
Waiver

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
Decision by patient
Patient waives right to full disclosure and
questions
Alters degree of disclosure


Basic treatment explained
Documentation



Patient’s waiver
Specificity
Your rationale for accepting
Informed Consent Documentation

Signed consent in office practice


safest
not necessary in most cases
Consent Documentation

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Patient’s capacity
Diagnosis
Proposed treatment
Risks and benefits
Alternatives
Prognosis with and without
Concerns raised by patient
Response to concerns
Patient’s decision
Consent in Psychotherapy

Osheroff vs. Chestnut Lodge


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Treated with psychodynamic psychotherapy
and no medication in institution A – no
change
Treated with medication in institution B –
improved
Institution A sued for not informing patient of
alternative treatments
Case settled out of court in patient’s favour –
no case law
Capacity to consent to treatment



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Who can do an assessment?
When should I be thinking about this
issue?
What documentation is required?
Who do I need to inform?
How do I decide on substitute consent
giver?
Basics of Capacity

Capacity to consent is assumed


unless there are reasonable grounds to
believe otherwise
Capable

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Understand the nature and anticipated effect
of proposed treatment AND
Alternatives

including the consequences of no treatment
Capacity to Consent

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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
Substitute Consent List
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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
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
Scenario 2


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.



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?
Release of Records
Release of information





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What form do I use and what form do I
accept?
When asked for all of your notes do you have
to comply?
Are you allowed to refuse?
How quickly should you respond?
“circle of care”?
What is the expiry date of signed consent?
Can a patient verbally override a previously
signed consent?
Release of Records

With express consent:

competent patient


patient signs an Authorization for Disclosure of
Medical Record Information form.
not mentally competent

substitute decision-maker signs an Authorization
for Disclosure of Medical Record Information form.
With Implied/Without consent

In an emergency



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 a person determining capacity for
treatment, admission to a care facility, or
personal assistance services
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 for the purpose of regulating the
medical profession
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

physician or other person must make the request in writing
Disclosure Required by law


MOHLTC Monitoring of claims for payment
Summonses, subpoenas and court orders


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Read carefully
Provide only requested information
Reports under the Workplace Safety and
Insurance Act

Related to the claim only
Confidentiality

Limitations
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Duty to warn
Risk to self or others
Child welfare
Operating a motor vehicle
Substitute consent
Subpoena
Witness in court
Scenario 3


Another physician has
referred your patient
to a psychiatrist.
The psychiatrist calls
you to clarify the
patient’s treatment
history with you.

What do you do?
Circle of Care
Circle of Care

implied consent



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
Exception - “lockbox”
Circle of Care

PHIPA does not define “circle of care”
Circle of Care – Definition*
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health care practitioners
public or private hospitals
pharmacies
laboratories
ambulance services
community care access corporations
Person’s providing care named in CTO

(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.
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.


A psychiatrist also
treating the patient
calls you and asks if
you are aware of any
significant childhood
events.
What should you do?
“Lock boxes”


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Specific Personal Health Information
Patient expresses restrictions to physician
Over-rides “circle of care”
“Lock boxes”

Your Responsibility



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Inform others in circle of care that complete
information can not be conveyed when relevant
Discuss with patients the potential health risks
Document discussion
Disclosures required by law overrides “lock box”

Nonetheless a reasonable attempt be made to obtain
patient consent
Scenario 5


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.

What do you do?
Mandatory Reporting
Mandatory Reporting
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Child Abuse
Motor Vehicles
Pilots, Air Traffic Controllers
Railway Safety
Merchant Seamen
Sexual Abuse by Health Professionals
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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
Only reveal patient’s name if patient consents in writing
Mandatory Reporting

Discuss your concerns and worries about
mandatory reporting.
Case example
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Single mother with daughter
MDD with psychotic features
CAS not informed
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
Child Protection
Child Abuse or Neglect

The Child and Family Services Act (CFSA),


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Report suspicions of child abuse or neglect
Release the information on which the
suspicion is based.
Report must be made immediately and
directly to CAS
Report can not be made by someone else on
your behalf
Make second, third … on same case
Child Welfare

Reportable Incidents

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Harm caused by a willful act
Harm arising due to neglect
The following incidents must be reported:
Physical Harm or Abuse



Has suffered
Is at risk to suffer
The child requires medical treatment

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Guardian does not provide treatment
refuses/unable/unavailable to consent to the
child’s treatment.
Sexual Harm or Abuse

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Sexually molested or sexually exploited, or
at risk
Guardian knew or should have known but
failed to protect the child
Emotional Harm

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Occurred or at risk of occurring
Guardian does not provide 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
Abandonment
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
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Abandoned child
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
Child welfare
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Criminal Acts
The child is less than twelve years old

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Killed or seriously injured another person
Serious damage to property
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


Encouraged by guardian
Due to lack of supervision
Alcohol Misuse
Alcohol Misuse



Highest risk factor for motor vehiclerelated collisions and injury.
40% of population involved (life time
prevalence)
Fatal Collisions

35% - 40% involve an impaired driver
Alcohol Misuse

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Abuse - 15% of drinkers
Dependence – 5% of drinkers

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3 times more likely to die of injury than
cirrhosis
Withdrawal symptoms also impairs driving
Must Inform
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Diagnosis

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alcohol dependence
alcohol withdrawal induced seizures
Must Inform
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Patients demonstrating drinking and
driving behaviour
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DUI
Informed by family
Attends your office impaired and has driven
Reinstatement

1 year
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Dependence
Withdrawal seizure
3 months

Abuse + successful treatment
Scenario 6


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.

What do you do?
Duty to warn
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Case law
Circumstances
Can I use a form 1
Is completing a form 1 sufficient or do I
still have a duty to warn
Can I be sued for breaching confidentiality
Duty to Warn
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
Based on clinical judgment,
Court suggested guidelines:

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there is a clear risk to an identifiable person
or group
there is a risk of serious bodily harm or death
the danger is imminent.
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.
Duty to Warn

Document




the threat,
the situation,
the physician’s opinion
the information on which the opinion is
based.
Permissible but not Mandatory
1.
2.
Imminent Danger
Incapacity

3.
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
Disclosure of Harm

that the patient has suffered harm in the
course of receiving health care
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.

What do you do?
Confusing circumstances

Disclosure to police
not mandatory in the absence of a legal obligation
 Expressed consent required
 Document






Signed patient consent
the officer’s name and badge number,
the request for information,
the information provided,
photocopy authority for the disclosure
 e.g., photocopy of consent, reporting obligation,
search warrant or summons
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.
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.
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
Discussion
References

Consent Legislation



Health Care Consent Act, 1996 S.O. 1996,
Chapter 2 Schedule A
Mental Health Act R.S.O. 1990, CHAPTER M.7
Substitute Decisions Act, 1992 S.O. 1992,
CHAPTER 30
References

Privacy Legislation


Personal Health Information Protection Act,
2004 S.O. 2004, chapter 3 Schedule A
Personal Information Protection and Electronic
Documents Act 2000, c. 5
Mandatory Reporting References



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;
158:1473-9.
Reporting Child Abuse and Neglect: Your
Responsibilities Under the Child and Family
Services Act, Ministry of Community and Social
Services.
Websites


Consent and Capacity Board
 www.ccboard.on.ca
McMaster University PSYCHDIRECT: Evidence
Based Mental Health and Education Psychiatry
and the Law
 http://www.psychdirect.com/forensic/PsychLa
w/psych&law-overview.htm
Websites
Overview of Brian’s Law
 http://www.health.gov.on.ca/english/public/p
ub/mental/brianslaw.html
 Brian’s Law CTO
 http://www.health.gov.on.ca/english/public/p
ub/mental/treatment_order.html
Websites



PERSONAL HEALTH INFORMATION PROTECTION ACT,
2004: AN OVERVIEW FOR HEALTH INFORMATION
CUSTODIANS
 http://www.health.gov.on.ca/english/providers/legisla
tion/priv_legislation/info_custodians.pdf
Information and Privacy Commissioner of Ontario
 http://www.ipc.on.ca/scripts/home.asp?action=31&N
_ID=1&P_ID=1&U_ID=0
Psychiatric Patient Advocate Office
 http://www.ppao.gov.on.ca/you-rig.html
websites

Forms
 Ontario Government Mental Health Forms
 http://www.health.gov.on.ca/english/pu
blic/forms/form_menus/mental_fm.html
 Consent to Release personal health
information
 http://www.health.gov.on.ca/english/pro
viders/legislation/priv_legislation/consen
t/consent_disclose_form.pdf