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,
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
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
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
Not liable for a lack of tx resources in their community or long wait times to see
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
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
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