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Lecture 8

Health Sciences 3101A/B Lecture 8: Chapter 8 - duties of affirmative action

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Health Sciences
Health Sciences 3101A/B
Robert Solomon

Chapter VIII: Duties of Affirmative Action  Traditionally, no general duty of care in negligence to take positive action to benefit another person. You just need to refrain from wrongful positive acts.  If you have a special relationship, had a statutory or contractual duty to intervene  Special relationships: parent child, teacher/student, occupier/entrant, employer/employee, HCP/pt Part One: Duties to Rescue & Render Ad, Treat and Refer a) The Duty to Rescue and Render Aid  HCP have no common law duty of care in negligence to assist at the scene of a crash  HCP have a duty to render aid if emergency arises in the course of an existing relationship (ex. Pt has heart attack in waiting room)  Little reason to fear liability in intervening in emergency  Good Samaritan 2001 protects HCP and others who intervene unless grossly negligent  HCP may have ethical or professional obligation to rescue and aid. b) Duty to Treat  HCP cant refuse pts due to discrimination, but they can limit the size of their practice and tailor it to reflect their interest/expertise  Required to take steps to provide ongoing care to existing pts who need it: negligent abandonment  HCP have no duty to provide tx that is inconsistent with accepted practice, not effective or futile  Not required to tx hostile pts or uncooperative  Physicians can refuse tx based on religious beliefs if: physician informs pt it is based on religious beliefs, inform of all clinical options, not express judgments, effective/timely referral to available physician, BUT if its an emergency they have to provide care regardless of their beliefs. c) Duty to Refer  HCP are not expected to be omniscient; however they must know their limits  Liable for failing to refer a pt is they know that the services of that professional are needed  Not liable for a lack of tx resources in their community or long wait times to see specialist.  Layden v. Cope  you can be held negligent in failing to consider other diagnoses if the pts condition deteriorates after your initial diagnosis and failing to refer to a specialist if needed. Part 2: Duties to Control  No common law duty on individuals to control conduct of another unless special relationship exists  In this case, it is with legal power over another to control them (parent/child, employer/employee, teacher/pupil, occupier/entrant)  Special relationship to control is recognized for psychs, nurses and other mental health staff to take reasonable steps to control psych pts. I. The Mentally Ill  Custodial responsibilities o Villemure  failing to properly supervise patients o Wellesley  the MHA act shouldn’t be interpreted as relieving a psych facility for its liability for its negligent act of failing to take steps to control the pt o Shackleton  if something is common practice it is generally allowed unless special orders have been taking. The mere fact that a file indicates something when the pt has been normal is not sufficient in taking special precautions.  Escape and release o Wenden  if there is no ground to believe there is risk and you meet the standard of care, you can’t be held negligent. o Ahmed v. Stefaniu  1995 Johannes had 2 psych admissions from aggressive behaviour; diagnosed with acute psychosis and prescribe anti-psychotic meds. Lived with his sister after second stay and deteriorated in 96. Police had to take him when he threatened sister and admitted as involuntary pt to Form 3 under MHA. The doc said he was lacking insight into his condition and incapable of consenting. Johannes challenged invol admission but denied. In Mid-october, his state deteriorated further as he assaulted others and threatened. On Dec 2, doc referred to Johannes as delusional and paranoid and put in restraints 25 times. On Dec 3 he was angry, lud, intrusive and threatened a nurse. Doc changed him to voluntary pt and he obvi left. In late January, Johannes went to 2 doctors who both said he didn’t meet involuntary admission. He killed sister and husband sued doctor in negligence for changing status; 2 w
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