Hospital Law

Borden Ladner Gervais LLP
Hospital Law
Report
IN THIS ISSUE
Patien ts Mu st be T old
about Retained Sponges
The Provision of
"Warnings" When
Performing C apacity
Assessm ents
Can H ospita ls be he ld
Vicariously Liable for
Sexual Assa ults
Com mittee by Th eir
Employees?
What Constitutes a
"Substantial Alteration:
of Hospital Privileges?
Medical Directives and
the Delegation of
Controlled Ac ts
Lawyers " Patent & Trade-mark Agents
July 2000______
www.blgcanada.com
The Hosp ital Law Report is designed to inform those
engaged in the health care or hospital setting about current
issues and developm ents in health care law. It is published
by Borden Ladner Gervais LLP, lead defence counsel for
the Healthcare Insurance Reciprocal of Canada.
The topics included in this issue are the following:
Patients Must be Told about Retained Sponges - We analyse
how the British Columbia Supreme Court awarded damages in a
retained sponge case where the surgeon deliberately withheld the fact
of the retained sponge from the plaintiff.
The Provision of “W arnings” W hen Perform ing Capacity
Assessm ents - We an alyse a rece nt case in which a Court
considered the warnings that should be given prior to capac ity
assessme nts under the Substitute Decisions Act and the Health Care
Consent Act.
Can Hospitals be held Vicariously Liable for Sexual
Assaults Committed by Their Employees? - We rev iew tw o
recent decisions from the Supreme Court of Canada considering when
employers may b e found vicariously liable for sex ual assaults
comm itted by their emplo yees.
What Constitutes a ”Substantial Alteration” of Hospital
Privileges? - We review a recent decision fro m the H ealth
Professions Appeal and Review Board in which a hospital attempted
to revoke a physician’s privileges with respect to utilizing the
hospital’s EMG laboratory.
W hat is a Medical Directive and What Policies Should be
Implemented before Medical Directives are used to Deliver
Health Care? - We review publications from the College of Nurses
of Ontario and the Canadian Medical Protective Association which
address med ical directives and the de legation of contro lled acts.
BC Court Awards Punitive Damages for the
Failure to Disclose That an Abdominal Roll Was
Retained During Surgery
In a recent de cision, th e B.C. Supreme Court awarded damages to a
patient as a result of an abdominal roll that was left in her abdomen for
3 month s and for th e delay in disclosing to the plaintiff the fact thatan
abdominal roll had been left in her abdomen.
In Shobridge v. Thomas, the plaintiff u nderw ent a
presacral neurect o m y on September 13, 1995 for
the treatment of dysmenorrhea. The surgeon used
an abdominal roll measuring six feet in length and
six inches wide to pack the bowel in the upper
abdomen away from the operative field. Contrary
to hospital po licy, the abd omin al roll was not
counted by the nurses in the pre-operative
instrument count. The surg eon did not remove the
roll before closing the incision. The plaintiff
developed a significant post-operative infection.
Following two admissions to hospital to treat the
infection, the abdominal roll was discovered
during a subsequent surgery on December 4, 1995.
The surgeon did not inf orm the plaintiff un til
February 6, 1996 of the fact that an abd omina l roll
was found in her abdomen in December of 1995.
The Hospital and defendant nurses admitted that
the failure to coun t the abdo minal ro ll constituted
a breach of the nu rsing stand ard of car e. At the
December 1995 surgery, the nursing staff asked
the surgeon : ”Wha t should I write on the slate excision of abscess fistula and removal of
abdominal roll?“ The surgeon responded: ”You
didn’t write that, did you?”. In answer to the
nurses' inquiry as to whether an Incident Report
should be made o ut, the surgeon stated that there
should be "no paperwork on this". He advised the
nursing staff that he would speak to the Nursing
Supervisor. However, he did not speak to the
Nursing Supervisor as she was on sick leave.
Following the December 1995 operation, the
plaintiff was read mitted w ith a subrec tus musc le
abscess. She was transferred to the Vancouver
General Hospital fo r further su rgery. In h is
transferring note, the surgeon made no mention of
the retained abdom inal roll.
A month following the December 1995 operation,
a nurse involved in the surgery approached the
Hospital’s Peri-Op erative Clin ical Instructo r to
advise her, on a no name basis, that there had been
a problem with a surg ery. The Clinical Instructor
advised the nurse to get in touch with the other
nurses involved, and the surgeon , and to retu rn to
see her.
The surgeon met with the Clinical Instructor and
the Hospital’s Vice-President. They advised him
to tell the patient about the retained abdominal
roll. The surgeon met with the plaintiff and the
Hos pital's Vice-President of Nursing on February
6, 1996, and told the patient about the abdominal
roll. An action was subsequently commenced
against the Hospital, the physician and the nurses
involved in the surgery.
The Court found that it was the nurses'
respons ibility to count the sponges, needles and
instruments. The H ospital policy required 8
counts.
The Court stated that in normal
circumstances, the nurses' failure to count the
abdominal roll at the beginning of the procedure
would result in a greater degree of liability upon
them.
The Court considered the 1997 decision of the
Quebec Court of Appeal in Thomassin v. Hopital
de Chicoutimi, which h eld that a surgeon was not
liable for failing to remov e a com press prior to
closing a surgical incision. In Thom assin, the
Court of Appeal found that the surgeon had
maintained continual control over the visual field
and was corr ect in not p alpating the operative
cavity as this would risk bleeding. The Cou rt in
Shobridge distinguished the Thom assin decision
on the basis that the surgeon had placed the
abdominal roll away from th e operativ e field and
there was no evidence that manual exploration of
the operative site posed a threat to the plaintiff.
The fact that the surgeon placed the roll away from
the operative field increased, in the view of the
Court, the surgeon's share of respon sibility, as this
increased the need for the surgeon to explore the
operative field outside of his visua l range.
The Court also found that the surgeon had a d uty
to inform the plaintiff that an abdominal roll was
retrieved during th e subseq uent surg ery, and that
he was in breach of his fiduciary duty to do so.
Although the Court found that the nurses had a
duty to prepare an Incident R eport, it did not hold
the nurses liable for the delayed disclosure as the
nurses expected that the surgeon would spe ak to
the Nursing Superv isor and th e patient. Th e full
burden of the damages flowing from the failure to
disclose rested with the physician.
In terms of d amag es, the Cou rt found that the
patient was emotionally upset, mistrustful and
depressed as a result of the delayed disclosure.
Her physical complaints included pain and
suffering caused by infection, numerous tests and
procedures, surgery to remove the roll,
reconstructive surgery and a prolonged recovery.
The Court fo und the nurses (an d Hosp ital) liable
for Ms. Shobridge's loss, but not for the loss
caused by the failure to disclose the recovered
abdominal roll. The Court apportioned liability in
July 2000 Hospital Law 2
the amount of 47% for the Hospital and 53% for
the surgeon.
In addition, the Court held that the surgeon was
liable for aggravated damages in the amount of
$25,000 and punitive damages in the amount of
$20,000 for deliberately concealing from the
plaintiff the source of her abdominal infection.
The Shobridge and Thom assin decisions in dicate
that the failure o f hospital staff to accurately count
instrume nts and spong es, both pre-operatively and
prior to closing a surgical inc ision, will pro bably
result in liability. The a pportion ment o f liability
between the hospital and the surgeon will vary on
a case by case basis depending on, among other
things, whether the retained object was placed
outside of the operative field and whether a
manual exploration of the operative site posed a
danger to the patient. The failure to disclose to the
patient that sponges or instrum ents were left in
during surgery, and attempts to conceal the
evidence and suppress disclosure, may attract
aggravated and punitive damages.
In the
Shobridge case the Court found that this duty
rested with the physician.
Rights Advice in Capacity
Assessments: Impact of the re
Koch Decision
When health practitioners make capacity
assessments, they look to the Health Care Consent
Act for specific he alth or personal care issues, and
to the Substitute Decisions Act for general issues
of incapacity . If a patient is found incapable, both
Acts give the patient rights, often in different
forms, w ith respect to the assessm ent.
The case of Re Koch (1997) con siders the
circumstances in which adv ice respecting these
rights must be provided. This decision has since
been interpreted by the C onsent an d Capa city
Board (the “Board”). Principles are now emerging
on when and how rights advice is to be provided.
Statutory Frame work
Section 16 of the Substitute Decisions Act
(“SDA”) provides that any person can request an
assessment of another person’s capacity. The
actions of assessors under the SDA are govern ed
by section 78, wh ich prov ides that:
(1)
An assessor shall not perform an assessment
of a person ’s capacity if the person re fuses to
be assessed.
(2)
Before perform ing an assessment of
capacity, the assessor shall explain to the
person to be assessed:
(a)
the purp ose of the assessme nt;
(b)
the significance and effect of a
finding of capacity or incapacity; and
(c)
the person’s right to refuse to be
assessed.
If a person is found incapable, he/she ca n request
a further assessment (s.20.1) and can apply to the
Board for a review of the find ing of inc apacity
(s.20.2).
The Health C are Con sent Act (“HCCA”) provides
for a similar assess ment b y an “ev aluator” to
determine a person's capacity to make treatment
decisions. There is n o statutory requirement that
any advice be given to the patient about the
evaluation. The hea lth practition er must only
provide the incap able perso n with "in forma tion
about the consequences of the findin gs as is
specified in the guidelines” established by the
health pra ctitioner’s pr ofession (s .17).
The Re Koch Decision
An assessor, under the SDA, found
incapab le of managing her financial
property. She was also evaluated
HCCA. The evaluator also found
incapable.
Ms. Koch
affairs and
under the
Ms. Koch
Ms. Koch requested a review of these findings by
the Board. The Board upheld them. Ms. Koch
appealed these findings to the Court, seeking a
reversal of the Board’s decision and a declaration
that she was capable.
Mr. Justice Quinn concluded that the evidence
before him was inad equate to support the findings
of incapacity. He noted that the burden is on the
health care practitioner to justify the finding of
incapacity. Both the assessor and the evaluator
had performed brief, one-time, assessm ents. They
had very little in the way of back-up medical
documentation. They did not meet with anyone
else, such as Ms. Koch’s health care providers,
friends or neighbours, to obtain information and/or
to verify what they had been told, and they had
very little in the way of notes. Ju stice Quin n felt
July 2000 Hospital Law 3
that these brief assessme nts were in adequ ate. His
strongest criticism of the assessments was that the
assessor and the evaluator interjected their own
views of the reasonableness o f Ms. Koch ’s actions,
and what was in her b est interests, into the
assessment pro cess.
Justice Quinn commented on the capacity
assessment and rights advice process established
by the Acts. He was concerned that Ms. Koch was
not "warned" about the significance and effect of
the finding of incapacity, and of her righ t to refuse
to be assessed. He st ressed that since a loss of
liberty and freedom can result, the Acts should be
carefully applied. The warning that is required by
section 78 of the SDA had not been provided by
the assessor. Justice Quinn concluded that a
similar warning sh ould also have been given by
the evaluator, even though he was not required to
do so under the HCCA.
Justice Quinn allowed the appeal and set aside the
Board's findings.
treatment or therapy is administered on an ongoing b asis.
Conclusion
Justice Quinn 's decision h as clearly influenced the
Board in its consideration of capacity a ssessmen ts
and will continue to do so. Capac ity assessm ents
must be approached with adequate investigation,
consideration and documentation before a finding
is made.
While the requirements for what
constitutes an adeq uate assessme nt are spec ific to
each case, Justice Quinn's comments can serve as
a guide in the assessm ent proce ss.
The mandatory nature of section 78 of the SDA,
for the purposes of an assessment under the SDA,
is emphasized. The warning requirement for an
HCCA assessment is less clear. Two general
statemen ts can be made based on Re Koch and the
Board’s subse quent decisions:
1.
For the purposes of one-time, “stand-alone”
assessme nts of capac ity to conse nt to a care
facility admission, serious consideration
should be given to providing the warnings
required by section 78 of the SDA.
2.
The SDA ty pe warn ings likely w ill not apply
to the on-going assessment pro cess that is
undertaken whene ver treatm ent or thera py is
admin istered.
The Scop e of Re Koch
Justice Quinn ma de his dec ision on th e specific
facts of the case and the inadequacy of the
evidence. This is the ratio decidendi of the case,
that is, "the ground or reason of decision." The
“ratio” of a decision is binding on an
administrative tribunal like the Board.
Justice Quinn’s comments on the warning to be
given, while very strong, are prefaced, "had it not
been possible for me to decide this appeal on other
issues, I would have held ...". These commen ts are
arguab ly obiter dicta , "words of an opinion
entirely unnecessary for the decision of the case .”
“Obiter” is not binding on an administrative
tribunal, but is likely to be viewed as highly
persuasiv e by it.
Justice Quinn's decision has been interpreted by
the Board in three su bsequent decisions. In Re
L.J., a capacity assessment was performed in a
hospital for purposes of a care facility admission.
The Board applied the SDA warning requirement
to the capacity evaluation in the hospital
environ ment, where it was a “stand-alone”
assessmen t, as opposed to an assessment made
over the course of an on-goin g therape utic
relationship. In Re J.D. and Re N.I ., the Board
concluded that the SDA type warnings would be
imposs ible in a therapeutic environment whenever
Hospitals and Vicarious Liability for
Sexual Assaults Committed by
Employees
The Supreme Court of Canada recently released
two decisions that are of considerable im port to
hospital administrators. In Bazley v. Curry and
Jacobi v. Griffiths, the Court clarified the
situations in which institutions such as schoo ls,
hospitals, and volunteer organiza tions ma y be held
vicarious ly liable for sexual assault and abuse
committed by employees and agents. These
decisions will undo ubtedly expand the liability of
hospitals in certain instances.
What is Vicarious Liability?
Vicarious liability is liability imposed without
fault. A hospital as employer may be vicario usly
July 2000 Hospital Law 4
liable for an inten tional sexual assault committed
b y a n e m p l o y e e s o l e ly b e c a u s e t h e
employment/agency relationship exists.
The
hospital may be held vicariously liable in the
absence of any know ledge, carelessness ,
recklessness, wilful blindnes s, or neglig ence on its
part. The vica riously liable hospital will be liable
for all damages stemming from the sexual abuse or
assault regardless of whether the hospital was
diligent in its attem pts to prev ent it.
Vicarious liability casts a much wider net than
negligence. In the law of negligence, the hospital
will not be liable where the institution directly
addresses and take s steps to red uce a fore seeable
risk (e.g. implementing policies and prope rly
screening candidates). Howev er, these efforts are
not important to the analysis of vicarious liability,
where no-fault liab ility can be im posed so lely
because of the employment relationship with the
wrongdoer.
In determining whether there is sufficient
connection between the employer’s creation of the
risk to justify the imposition of vicarious liability,
the Court in Children’s Foundation highlighted the
following factors:
1.
The opportunity that the enterprise afforded
the employee to abuse his or her pow er;
2.
The extent to which the wrongful act may
have furthered the employer’s aim s (and
hence, be more likely to have been
committed by the em ployee);
3.
The extent to which the wro ngful act was
related to friction, confrontation or intimacy
inherent in the employer’s enterprise;
4.
The extent of power conferred on the
employee in relation to the victim; and
5.
The vulnerab ility of poten tial victims to
wrongful exercise of the employee’s power.
The Cases
In Bazley v. Curry (the “Children’s Foundation”),
the Court unanimously held that a non -profit
organization was vicariously liable for sexual
assaults committed by an employee on childr en in
his care. T he Children’s Foundation operated
residential care facilities for the treatment of
e m o t i o na l l y t r o u b l e d c h i ld r e n .
The
employee—entrusted with intim ate duties such as
bathing, feeding, and putting children to bed—was
in a quasi-parental relationship with the children.
In the case of Jacobi v. Griffiths (”Griffiths“), the
majority held (with three judges dissenting) that
the Boys’ and Girls’ Club was not vicariously
liable for the sex ual assault s of its employee. As
the Program Director, the employee was
respons ible for the supervision and organization of
recreational activities and outings. Of significance
was the fact that except for one incident of sexual
touching on a Club-sponsored outing, the sexual
assaults took place after hours in the employee’s
home.
Despite the “no-fault” nature of vicarious liability,
the Court’s decisions do set limits on when an
employer will be vicariously liable for the
unauthorized act(s) of an employee.
Mo st
importantly, there must be a strong connection
between the sexual assaults and the extent of “jobcreated power and job -created in timacy” bestowed
on the employee by the employer.
Application to the Hospital Setting
There are 3 points from the Supreme Court of
Canada’s recent decisions that are of particular
relevance to ho spitals as employers.
First, the Court in Griffiths indicated that
authorized physical c ontact in itself would not
necessarily lead to the imp osition of liab ility. This
is pertinent to the hospital setting where physical
contact is often not merely part of the job, but may
constitute the essence of an emp loyee’s d uties (e.g
bathing and changing).
Secondly, the issue of whether “job created
authority” will lead to vicarious liability will
depend on the facts. Wh ere a hosp ital employee
abuses his or her jo b created authority to cultivate
a “relationship” with the victim outside of the
hospital and subsequently abuses the patient, the
hospital w ill likely not be vicariously liable.
Thirdly, the fact that an employee had a “m ere
oppor tunity”to commit a sexual assault on a
patient because of the natu re of the em ploymen t
will probably not be sufficient to create such
liability. Therefore, assaults by those lacking
authority over patients (e.g. janitors), even if on
hospital premises, will likely not lead to liability.
July 2000 Hospital Law 5
In cases prior to these Supreme Court of Canada
decisions, some trial judges used a similar method
of analysis. In a 1997 New Brunswick case (J.B.
v. Jacob) one of the two nurses on night-du ty went
into a patient’s room, lowered his pyjamas, and
touched his penis w ith their han ds or m outh. The
patient’s in-hospital care did not involve the
touching of his genitals or genital area. The
hospital, which had no reason to expect that the
sexual assault would occur, was held not to be
vicarious ly liable. The judge stated that if the
nurse had sexually assaulted the patient “in the
course of perfor ming h is duties as a nurse,” the
result ma y have b een differ ent.
A similar approach was taken in a recent
California Supreme Court ruling. In Lisa M. v.
Coun ty of Santa Clara , an ultrasound technician
assaulted a pregnant woman in the hospital by
inserting the scanning wand into her vagina and
fondling the patient w hile telling her he “need ed to
excite her to get a good view of the baby.” The
Court rejected vic arious liability of the ho spital,
stating, “[i]f...the assau lt was not m otivated or
triggered off by anything in the employment
activity, but was the result of only propinquity and
lust, there sho uld be n o liability.”
In future cases, much will turn on how the scope
of employmen t conferre d by the emplo yer is
defined.
Conclusion
The extent to which the Supreme Cou rt of Canada
may be said to have extended liability to hosp itals
in future instances of sexual assaults committed by
employees will depend on how our courts across
Canada apply these principals on a case by case
basis.
The granting of job-created authority and jobcreated intimacy is likely to be examined as to the
degree of authority and intimacy created by the
employer.
Keeping in mind what the Court referred to as the
policy goal of “just and effective compensation”,
adequ ate insurance coverage is essential in case
liability is imposed.
Substantial Alteration of Hospital
Privileges
A recent decision by the Hospital Appeal Board
(now the “Hea lth Professions Appeal and Review
Board”) (“HAB”) in a dispute between Dr.
Douglas Dittmer and Parkwood Hospital in
London, Ontario provides an illustration of the
circumstances in which a physicia n’s priv ileges
will be deemed to have been “substantially
altered”. The dispute between Dr. Dittmer and the
hospital, and the HAB’s decision, provide some
lessons for hospitals making decisions which have
an impact on physicians’ privileges, or on the
resources attached to those privileges.
Background Information
The manner in which the dispute between Dr.
Dittmer and the Hospital came before the HAB
was unusua l, and the H ospital asserted that no
decision affecting D r. Dittmer’ s privileges h ad in
fact been m ade. The decision in question related
to the access of Dr. Dittmer, a Physiatrist, to the
Hospital’s EMG laborator y.
The H ospital’s
position in this regard was summarized in a letter
from the Hosp ital’s Presiden t and C.E .O., as
follows:
Your access to EMG w as not tied to
your privileges, rather, access to the
EM G laboratory is a courtesy which
may be exten ded from time to tim e to
members of the Univer sity Department
of Physical M edic ine and
Rehabilitation at the discretion of the
[Hospital’s] Department Chief.
It is therefore the Hosp ital’s position
that you have not been aggrieved since
your Hospital privileges have not been
altered pursuant to the Public Hospitals
Act.
In the s e circ umstances,
appearance before a Hospital Appeal
Board is not applicable.
The factual background giving rise to the dispute
can be briefly summarized. Dr. Dittmer joined the
D e p a r t m e n t o f P h y sical M e d i c i n e a nd
Rehabilitation (“PM& R”) at the University of
Western Ontario in 1986. He was granted active
privileges in the PM&R Departmen t at Victoria
Hospital in London at that time, and in 1990,
became Chief of that Department. It had been the
practice in London that specialists were granted
July 2000 Hospital Law 6
active privileges at only one hospital and would be
given consulting privileges at any other hospital
with which they were associated. Accordingly,
Dr. Dittmer held consulting privileges at Parkwood
Hospital. Parkw ood op ened its EMG laborator y in
1988 and since that time, Dr. Dittmer had used the
laboratory on Wednesday of each week.
Conducting EMGs comprised approx imately 95%
of Dr. Dittmer’s practice at Parkwood, and his
practice at Parkwood provided approximately 20%
of his total income.
In the fall of 19 95, D r. Dittmer learned that the
Faculty of Medicine at the Univ ersity would only
support his promotion to Associate Professor on a
part-time basis rather than a full-time b asis. Dr.
Dittmer pursued the matter with the Dean of the
Faculty of Medicine who sug gested that Dr.
Dittmer seek an a ppointm ent in the U niversity’s
Department of Family Practice (instead of the
Department of PM &R). D r. Dittmer f ollowed this
advice and was appoin ted to the Department of
Family Practice in or about July of 1996, as a parttime Associate Professor, with a speciality in
PM&R. His practice was unchanged following the
shift in dep artmen ts.
In July of 1996, Dr. Dittmer was advised by the
Chief of PM&R at Parkwood that his “privileges
with EMG ” had be en based on his asso ciation w ith
the University’s PM&R Department. In December
of 1996, Dr. Dittmer received a letter from
Parkwood’s Chief of PM &R advising that
effective March, 1997, Dr. Dittmer would no
longer have acc ess to Parkw ood’s E MG la b. The
explanation set ou t in the letter was as follows:
To facilitate the role of providing
clinical and administrative services to
Parkwood Hospital, as well as to
balance the teachin g adm inistrative
[service] to the University of W estern
Ontario, it is the intention of the active
admitting physician s of the De partm ent
of Physical Medicine and
Rehabilitation of Parkw ood H ospital to
focus more of their clinical time in the
electro-diag nostic laboratory.
The
E M G schedule, therefore, needs to be
revised to meet the needs of the active
staff.
This will mean that the
Wednesday morning and afternoon
time slots for EMG would not longer
be available for use by a physician
outside o f the active d epartm ent.
The HAB’s Decision
The HAB stated: “It is clear from the evidence that
the decision communicated in this letter had
nothing to do with ‘providing clinical and
administrative service to Parkwood Hospital’ or
with ‘balanc[ing] the teaching ad m inistrative
service to the University of Western Ontario’”. In
the view of the HAB, Parkwood’s Chief of
PM&R, Dr. Potter, was simply responding to a
request from an other ph ysician to p rovide h im
with more tim e in the EM G lab. Th at request, if it
was to be met, could only be met by reducing
either Dr. D ittmer’s use of the lab, or the use by
Dr. Potter. Further, the request from the other
physician was no t related to “th e exigen cies of his
practice or research”. The request simply reflected
that physician’s wish to ha ve an op portunity to
increase his income fro m cond ucting EM Gs. The
HAB noted that Dr. Potter claimed to have been
unaware until the hearing before the HAB that Dr.
Dittmer continue d to be a m embe r of the Fac ulty
of Medicine at the University, albeit in the
Department of Family Practice rather than in the
PM& R Dep artmen t.
The principal argument advanced by Parkwood
was that Dr. Dittmer’s consulting privileges
remained intac t, and tha t the EM G lab was simply
a “resource” to which Dr. Dittmer was afforded
access as a “courtesy” that had been extended to
him by virtue of his membership in the
University’s PM&R Department.
Parkwood
contended that, given that Dr. D ittmer’s
mem bership in the PM&R Department of the
Univer sity had terminated in July of 1996, i t was
entitled to withdraw the “courtesy”.
The HAB, in considering Parkwood’s contention,
considered the meaning of the term “privileges”,
noting that it is not a defined te rm in the Public
Hospitals Act. The HAB stated:
In broad terms, hospital privileges
comprise a bundle of rights of a
physician to carry out professional
practice in the hospital. Those rig hts
include some degree of access to the
mate rial and human resources of the
hospital including hospital beds for the
physician’s patients (if the privileges
include the right to admit patients),
operating room s (if the phy sician is a
surgeon), dia g n os ti c e q u ip m ent,
examining room s, interns, residents,
lab technic ians and nursing staff. To
July 2000 Hospital Law 7
the extent that the hospital’s bylaws or
the documents setting out a physician’s
privileges do not specify the resources
attaching to the grant of privileges, a
particular physician’s privileges m ust
be taken to include access to those
r e s o u r c e s w h ich are typic ally
employed in the type of p ractice in
which that physician is engaged.
Further, and aga in to the ex tent to
which access to resources is not, and
has not previously been, specified in
the bylaws o r the docu ments se tting
o u t t h e p a r t i c u l ar p h y s i c ia n’s
privileges, the resources to which the
physician has historically had access in
his or her practic e in the hospital must
be considered in determining what
access to resources attaches to the
privileges in question.
The HAB went on to stress th at: “We ar e not,
however, to be taken as suggesting that any and
every alteration in a physician ’s access to
particular resources gives rise to a right of appeal
to this Board . The Act provides such a right of
appeal only w here the a lteration is such as to alter
the privileges p reviously enjoyed ‘substantially’”.
On all of the evidence, the HAB concluded that
“substan tial” was to be measured against the
physician’s practice at the hospital in question, and
not against his overall pra ctice. App lying this test,
the HAB had little difficulty in concluding that
there had been a substantial alteration in Dr.
Dittmer’s privileges.
Finally, the HAB concluded that, by virtue of
Parkwood treating the decision in question as not
pertaining to privilege s, “ . . . there was a total
denial of natural justice to Dr. Dittmer by reason
of the fact that Parkwood did not treat the matter
as one inv olvin g privileges at all”. Dr. Dittmer’s
appeal was granted such that his access to the
E MG laboratory at the Hospital was re-instated
and ordered to continue as it was prior to the
decision in question.
The decision o f the HA B in this case provides a
helpful, but not surprising, illustration of what w ill
constitute a “substantial alteration” for the
purposes of s. 41(1)(b) of the Public H ospitals Act.
Any decision to be made by a hospital concerning
a change in the “resources” attached to the
privileges extende d to a physician should be made
carefully and with reference to the criteria which
have been enumerated by the HAB in this case.
Medical Directives and the
Delegation of Controlled Acts
On Dece m ber 31, 1993, the Regula ted Hea lth
Professions Act (“RHPA”) cam e into force in the
Province of Ontario. The RHPA defines specific
procedures as controlled acts and designates which
health car e professio nals can p erform them.
In February of 1998, changes were made to the
Nursing Act which allowed certain nurses
(Registered Nurses with E xtended Ce rtificates of
Registration (“RNE C”)) to undertake some of the
controlled acts that were previously designated
exclusive ly for phy sicians. Am endm ents were
also made to the Regulations under the Public
Hospita ls Act authorizing RNECs to order certain
diagno stic procedures. The Regulations provide
that the Hospital’s M edical Advisory Committee
may make recomm endations to the Hospital’s
Board regardin g the sup ervision o f diagno stic
procedures by RNECs. The new Regulations do
not give RNECs the authority to make orders for
treatmen t.
This year, the C ollege of N urses of O ntario
(“CNO”) revised its publication entitled: “When,
Why and Ho w to Use Medical Directives”, which
is considered by the CNO to be the best guideline
on medical directives.
According to this
publication, a medical order exists in one of two
forms - a medic al direct o rder, o r a medical
directive. A med ical direct ord er is a prescription
for a procedure, treatment or intervention for a
particular client, given by an individual physician,
to be implemented or administered in accordance
with its specific term s. A med ical direct ord er is
client specific and m ay be eith er written o r verbal.
On the other hand, a m edical directive is a
prescription for a procedure, treatment or
intervention that may be performed for a range of
clients who m eet certain conditions. The medical
directive contains specific conditions that must be
met and specific circum stances that must ex ist
before the medical directive can be implemented.
A medical directive is not client specific and is
invariably in written fo rm.
The CNO strongly re comm ends that sp ecific
policies be in place before medical directives are
used to deliver health care within a health care
facility. The recommended policies include:
•
Identification of the procedure(s) that may be
ordered by means of a medical directive.
July 2000 Hospital Law 8
•
•
•
•
•
•
The scope of the involvement of the
physician responsible for the care of the
patient, ie. when can a medical directive be
implemented prior to a physician seeing the
patient?
Identification of who m ay implement
procedures ordered by a m edical directive,
i n c l u d i n g a n y sp e c i f i c e d u c a t i o n al
requiremen ts, designations or competen cies.
Identification of the physicians to who m a
medical directive ap plies.
Development of a feedback mechanism,
including a defined communication path, to
enable the health care professional who
implem ents a medic al directive to identify
the physician responsible for the care of the
client, to whom questions should be
addressed if clarification is required.
D elin eatio n
of
the
documentatio n
requirem ents for health care professionals
who im plement m edical directives.
Tracking/monitoring metho ds to identify if
medical directives are being implemented
approp riately and are resulting in anticipated
outcom es.
The CNO states unequivocally in its publication
that it is the respon sibility of each health care
facility to develop these policies, and to ensure that
they are implemented, before medical directives
are used to deliver health care within the facility.
This publication states that a physician who writes
a medica l directive is resp onsible for ensuring that
approp riate medica l resources a re availab le to
intervene as required, and for ensuring that the
patient’s info rmed c onsent h as been o btained.
In November 1999, the Canadian Medical
Protective Association (“CMPA”) advised the
Ontario Medic al Associa tion that after carefully
considering the issue of medical directives and the
delegation of controlled acts, it advised its
members that they ought not to sign or agree to the
use o f m edical directives. The CMPA expressed
concern that a phy sician authorizin g a nurse to
carry out a me dical directiv e may c reate liability
for herself/himself for the acts of a nurse, as the
physician may be unaware that a nurse has
undertaken the controlled act, and in some cases
the physician may have had absolutely no
involvement with the patient. The CMPA noted
that med ical directives and the hospital policies
associated with them, appear to make the
physician responsib le for the nurse’s actions. The
CMPA noted that som e policies g o so far as to
state that the phy sician is respo nsible for ensuring
that appropriate medical resources are available to
intervene as required, and for ensuring that
informed consent has been obtained.
A medical order, either a medical direct order or a
medical directive, is a mandatory prerequisite to a
nurse pe rformin g:
•
•
•
A procedure which falls within one of the
three controlled acts authorized to nurses
who do not hold an Extended Certificate of
Registration , when it is not performed by or
ordered by a Registered Nurse.
A procedure which is not a controlled act,
but is part of a medical plan of care.
A procedure which is a controlled act not
authorized to nursing, but which may be
delegated to a nurse. The CNO sanctions the
delegation of electrical d efibrillation,
transcutaneous cardiac pacing and cardiac
pacemaker adjustment, casting a fracture of
a bone or dislocation of a joint, application
of electrocautery, and dispensing, to a nurse.
In its publication entitled "The RHPA: Part B
Scope of Practice, Controlled Acts Model", the
CNO stresses that nurses who perform delegated
acts are accou ntable to the CNO if they are not
competent to perform the acts safely.
The Healing Arts Radiation Protection Act
(“HARP”) provides that a RNEC may prescribe xrays of the chest, ribs, arm, wrist, hand, leg, ankle,
foot, and a m amm ogram . All other x-rays must be
prescribed by a ph ysician, de ntist, chiropo dist,
chiropractor, or osteop ath, before the x-ray is
performed. The implementation of a medical
directive is not synonym ous with the ordering of
an x-ray. Without a medical directive or a medical
direct ord er, a RNEC cannot initiate the taking of
an x-ray, other than an x-ray of the chest, ribs,
arm, wrist, hand, leg, ankle and foot, or a
mammogram. The Regulations under the Nursing
Act provide that a RNEC may order an ultrasound
of the abdo men, p elvis or breast. What d iagnostic
procedures or x-rays a RNEC may order within a
particular health care facility, should be decided by
that health care facility subject to the limits set out
in HARP, the Nursing Act and its Regulations.
Health care facilities and nurse s should c arefully
consider what controlled acts are goin g to be
performed by nurses in those facilities, having
regard to the existing legislation, the position of
the CNO, and the advice given by the CMP A to its
member physicians. Un less the con trolled act is
July 2000 Hospital Law 9
one which a nurse is au thorized b y legislation to
perform, or there is a medical directive, nurses
should not be initiating the controlled act without
a direct order (verbal or writte n), and health care
facilities ought not to permit their doing so.
Borden Ladner Gervais LLP is a national law firm with
offices in Toronto, Ottawa, Montreal, Calgary,
Vancouver and London, England. It is a full service law
firm providing services to clients carrying on business
across Canada in both official languages.
Borden Ladner Gervais LLP’s Hospital Law
Report is intended to comment generally on
issues of interest in the health law field.
Because of space limitations, the articles are not
intended to be a comprehensive treatment for
all of the issues raised. Nor are they intended to
provid e legal advice. Readers are advised not
to rely or act upon the information and views
expressed without seeking legal advice for the
specific issue s they fac e.
© Copyright July 2000 Borden Ladner Gervais LLP
For further information on any of the matters
discussed in this newsletter, or for assistance in
respect of any m atters rela ting to health law,
contact any one of the following:
HEALTH LAW GROUP - TORONTO
OFFICE
Rino A. Stradiotto, Q.C.
William D.T. Carter
Michael K. McKelvey
Anne C. Corbett (Corporate)
Brian D. Mulroney (Labour)
John J. Morris
Daphne G. Jarvis
Mary Lynn Gleason
Patrick J. Hawkins
Eric R. Hoaken
Randy M. Zettle, MD, CCFP(EM)
Jacinthe Boudreau
Cynthia D. Clarke
Renée A. Kopp
Robyn A. Grant
Jasmine M. Ghosn
(416) 367-6268
(416) 367-6173
(416) 367-6170
(416) 367-6013
(416) 367-6009
(416) 367-6241
(416) 367-6216
(416) 367-6112
(416) 367-6065
(416) 367-6130
(416) 367-6146
(416) 367-6259
(416) 367-6203
(416) 367-6221
(416) 367-6716
(416) 367-6252
Calgary Office Contact
David R. Wright, Q.C.
(403) 232-9521
Montreal Office Contact
Jacques Gauthier
(514) 954-3135
Ottawa Office Contact
George Hunter
(613) 787-3512
Your comments or questions are invited. Additional
copies of the Hospital Law Report are available by
contacting R.A. Stradiotto’s secretary at (416) 3676532.
July 2000 Hospital Law 10