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Chapter 8.docx

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Western University
Law 3101A/B
Robert Solomon

Chapter 8: Duties of Affirmative Action Part 1: Positive Acts vs. Failures to Act - Common law does not impose a duty of care on bystanders to rescue or render aid - Limited duties of affirmative action are recognized if the parties are in a “special relationship” - Law does not recognize a general duty of affirmative action Part 2: The Duties to Rescue and Render Aid, Treat and Refer A) Duty to Rescue and Render Aid - There is no general duty of care in negligence to rescue and render aid to a person in peril unless a special relationship exists - Health professionals and other bystanders cannot be held liable in negligence for failing to stop at the scene of a crash - Health professionals and other bystanders could not be held liable in negligence for failing to stop at the scene of a crash - Good Samaritan Act, 2001 o Absolves regulated health practitioners and others of liability if they voluntarily provide treatment in an emergency, unless they were grossly negligent - While health professionals have no general duty of care in negligence to assist an individual in peril, they may have ethical and professional obligations to rescue o Article 18 of the Canadian Medical Association’s Code of Ethics: physicians should provide whatever appropriate assistance they can “to any person with an urgent need for medical care”  Physicians are not required to join the CMA B) Duty to Treat - Health professionals are not bound to accept every prospective patient - Practitioners may tailor their practice and selectively accept patients that reflect their expertise, interests, and career plans - The refusal to accept patients outside of one’s practice area does not constitute discrimination in violation of the Human Rights Code - Professionals may turn away potential patients to limit the size of their practice - Once health professionals accept a patient into their practice, they have an obligation to take reasonable steps to provide ongoing care - A health professional who will be unavailable must ensure that appropriate coverage is provided for a critically-ill patient or one who needs ongoing monitoring o Failure to make such arrangements may result in disciplinary action and possibly civil liability in negligent abandonment - Health care professionals are not required to provide patients with whatever treatment they demand - There is no obligation to provide service to a patient whose hostile or uncooperative behaviour makes effective treatment possible o Health professionals should keep detailed records and assist the patient in finding another practitioner - College of Physicians and Surgeons of Ontario (CPSO) expects physicians to: o Clearly and promptly inform patients of any treatments that they do not provide o Fully inform patients of all clinical options based solely on the patient’s needs o Refrain from expressional personal judgments based on their religious or moral beliefs o Inform patients that they can see another physician and assist them in making arrangements to do so - Ontario Human Rights Commission (OHRC): a patient’s right to treatment must take priority over the physician’s rights to freedom of conscience and religion under the Canadian Charter of Rights and Freedoms C) Duty to Refer - Health professionals are expected to know their limits and only provide services that they are qualified and competent to provide - HPs can be held liable in negligence if they fail to refer a patient who they know or ought to know requires the services of another professional - HPs cannot be held responsible for lack of specialists, treatment programs or other resources in the community or for long waiting periods for surgery or to see a specialist o They must take reasonable steps to refer a patient Layden vs. Cope - Plaintiff previously suffered from gout - Went to two general practitioners suffering from acute pain and lesions on his foot - Both practitioners concluded that he had gout and prescribed medication - Doctors continued to treat him even though his condition deteriorated - After 9 days, the plaintiff was referred to a specialist – diagnosed with cellulitis with a possible secondary infection - Plaintiff’s condition deteriorated and his leg had to be amputated - Doctors were not held liable in negligence for their initial misdiagnosis - Doctors were held liable in negligence for failing to consider other diagnosis when the patient’s condition continued to deteriorate and for failing to refer him to a specialist sooner Part 3: Duties to Control and Protect - Traditionally, the law did not impose a duty on one person to control the conduct of another, unless a special relationship exists o Special relationship = where one person had some legal authority or power to control the other person’s conduct o Often applies to psychiatrists, nurses and other support staff to control confined mentally ill patient to protect them and those whom they might foreseeably endanger - Scandals and heightened public concerns about residential schools, child abuse, domestic violence, and workplace harassment have led to dramatic increase in the number of “duty to control and protect” claims A) The Mentally Ill Custodial Responsibility: Shackleton vs. Knittle - Ambulance attendants allowed a paranoid schizophrenic patient to sit in the front seat for comfort while being transported between two hostpials - They had received no warning or special instructions about transporting the patient - The patient suddenly grabbed the steering wheel, causing a fatal crash - The patient was subsequently found not guilty of criminal negligence causing death by reason of mental disorder - Patient sued attendants in negligence for allowing him to sit in the front seat - Court held that the attendant had not been negligent o They had not been warned by the doctors or nurses and it was common practice to allow patients to sit in the front seat for comfort Escape and Release: Ahmed vs. Stefaniu - Fall of 1995 – Johannes had two psychiatric admissions resulting from his aggressive and threatening behaviour - Diagnosed with acute psychosis and was prescribed antipsychotic medication - Went to live with his sister following his second hospitalization - Johannes’ condition deteriorated in the summer of 1996 - Sept 1996 – increasingly threatening to his sister and police had to forcibly take him to the hospital - He was admitted as an involuntary patient under the Mental Health Act - Dr. Stefaniu assessed Johannes as lacking insight into his mental illness, potentially violent, and severely paranoid; also found him to be incapable of consenting or refusing consent to treatme
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