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Rosen Sunshine by Rosen Sunshine - 2w ago

Please click here to view the July 2019 issue of Rosen Sunshine’s Health Law Bulletin.

To subscribe, click here.

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Rosen Sunshine by Rosen Sunshine - 2w ago

Please click here to view the June 2019 issue of Rosen Sunshine’s Health Law Bulletin.

To subscribe, click here.

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Health professionals need to have clear guidelines about whether clients can record their discussions, with those either posted in the waiting room or discussed at the beginning of the appointment, says Lonny Rosen.

“Some people pretty much live on social media and use it to document everything that happens to them, so they might think it is OK to record their meetings with a health professional without first asking,” says Rosen.

“For doctors and others, laying the ground rules with clients before they record anything is appropriate and it’s more practical and effective than trying to ban recordings altogether,” he tells AdvocateDaily.com.

Rosen says that clients may have valid reasons for wanting to record these discussions, such as having an accurate account of the health professional’s advice, or the desire to share this information with a family member.

“Health professionals should discuss with the client why they want to record their talk, which may help to identify a solution,” he says.

Rosen says one compromise would be to allow the taping of just a brief recap at the conclusion of the session, rather than the entire encounter.

If patients choose to surreptitiously record these discussions, that can backfire on them, Rosen says, citing a 2017 Ontario Superior Court of Justice case.

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Health-care organizations must provide individuals with all of their personal health information — including the names of those individuals providing the service — unless one of the exemptions in the law applies, says Lonny Rosen.

A recent decision by the Information and Privacy Commissioner of Ontario concerning the Personal Health Information Protection Act, 2004 (PHIPA) illustrates that obligation, says Rosen.

“The adjudicator applied the law from previous decisions regarding the standard for denial of access to records in circumstances where the custodian denies access on the basis that granting the access could reasonably be expected to result in a risk of serious harm, and that standard is the ‘likelihood’ of harm, not just the mere possibility,” Rosen tells AdvocateDaily.com.

The decision states that a man who was receiving home-care services from the Red Cross asked for a complete copy of his records, including the names of the people who came to his home.

The Red Cross gave him a copy of those files, but made an “exceptional” decision to redact the names of staff members, “based on the complainant’s verbal abuse of its office staff and home workers, particularly directed toward female employees,” the decision reads.

The decision states that on multiple occasions, the man would call the Red Cross and say “extremely hostile and abusive” things about female staff members, though these phone calls were not specifically documented.

“As an employer, the Red Cross felt it had an ethical and legal obligation to protect its workers, especially when they are going into a home-care environment where they’re isolated,” says Rosen.

The Red Cross reasoned that releasing the names of these workers could cause them harm, he says, noting one of those women made a submission to the commission, saying that she felt her privacy should be protected and the organization should not disclose her name.

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If patients request medically assisted death, it is imperative that physicians and nurse practitioners are aware of the legal requirements involved in that process, says Elyse Sunshine.

“If you’re going to implement assisted dying into your practice, it’s not simply a matter of getting the drugs and giving them to patients,” says Sunshine. “There are a number of important legal requirements and steps that have to be completed first.”

She tells AdvocateDaily that health professionals must first decide if they are comfortable with providing this type of care.

“Medically assisted death is an important thing to be able to offer patients, but it’s not something everyone wants to do,” Sunshine says. “Every health professional has to think about whether this is within their scope of practice, and if are they capable of providing this type of care.”

The Canadian Press reports that almost 7,000 Canadians have received medical help to end their lives since Canada legalized assisted dying three years ago.

Physicians administered the majority of medical assistance in dying (MAID), the story states, with less than 10 per cent provided by nurse practitioners.

“Health professionals who have a conscientious or religious objection do not have to provide this service,” says Sunshine.

“However, they have to make an effective referral, and direct the patient to another doctor or nurse practitioner who can carry out the service in a timely manner,” she says.

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Many health professionals have concerns about postings made about them on rating websites like RateMDs.  A recent case heard in Kingston, Ontario dealt with defamatory comments written about a doctor on the popular website RateMDs.com.

Background

A medical negligence case was brought against a surgeon following the death of a patient. An Ontario doctor acted as an expert in that case, providing evidence supporting the position that the surgeon was not negligent. The negligence case was then dismissed.

For approximately a year and a half after his expert testimony, the doctor became aware that the brother of the deceased patient in the negligence case was posting defamatory comments about him, primarily on RateMDs.com. Despite never having been a patient of the doctor, the brother posted that the doctor was “arrogant”, “thin-skinned”, a “ding bat”, “rude”, “conceited”, a “bully”, had a “disturbing” appearance and was a “threat to patient safety”. The doctor commenced a defamation case against the brother (the defendant) for posting the comments.

The Defamation Case

The defendant admitted to authorship of 2 of the postings but denied authorship of the other 10 postings. In order to prove authorship, the doctor had to obtain the IP addresses of the postings from RateMDs.com through court subpoenas. The judge determined, based on the IP addresses and recurring words in the postings, that the defendant poster wrote all 12 of the postings.

The judge was also satisfied that the postings were defamatory. In particular, the postings would “lower the reputation” of a doctor in “the estimation of right thinking community members”, and they were derogatory.

The doctor also had to prove that the comments were communicated to a third party (the “publication” element of a defamation case). The judge concluded that the comments had been “published”, noting that: a third party referred to one of the defendant’s postings; the public frequently used RateMDs.com to choose doctors; and the defendant’s evidence that he authored postings to warn prospective patients about the doctor.

A defence to defamation is the “fair comment” defence in that the comment was made on a “matter of public interest” and was “based on fact”. However, the defence can be defeated if the comment was made with “malice”.

The judge concluded that the defendant could not rely on the defence of fair comment noting the lack of truth of the defendant’s postings, including that he falsely portrayed himself as one of the doctor’s patients in certain posts and that he tacitly acknowledged that some of his assertions in the posts were false.

The judge also found that the defendant acted out of malice. He refused to remove the postings, which were malicious, persisted in posting additional comments about the doctor and masqueraded as a patient.

The defendant was ordered to pay the doctor a total of $50,000.00. The judge declined to award punitive damages (a monetary payment which punishes the defendant for purposely vindictive, malicious or harsh behavior) given that the reprehensible conduct was a product of profound grief over the death of his brother and given his view that the interests of justice were served by the total award of $50,000.

The judge also granted a permanent injunction against the poster, preventing him from making any further posts about the doctor. A permanent injunction was granted because the judge concluded that the defendant was motivated by malice and that it seemed likely that there would be further posts if a permanent injunction was not granted.

Takeaway

Health professionals can take legal action regarding defamatory postings in certain circumstances. However, comments that are simply “mean” are not actionable, the comments must “lower the reputation” of the health professional in the eyes of a reasonable person. The health professional must also demonstrate authorship and publication, and the court will consider any defences that the poster might have.

In addition, a website generally will not release information about a poster, including the poster’s IP address, without a court order. Accordingly, health professionals who have been subject to defamatory postings can certainly consider using the judicial system as possible recourse, but they should be mindful of the expense, time, and stress in seeking court relief.

If you have any questions about this decision, potentially defamatory comments, or regulatory proceedings / court proceedings involving health professionals, please contact us.

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A patient complained about the conduct of a psychiatrist, stating that the psychiatrist wrote false information in the patient’s medical records, but would not amend it. The patient also complained that the psychiatrist breached her confidentiality by providing these records to her family doctor.

The Health Professions Appeal and Review Board (the “Board”) confirmed the decision of the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) to take no further action.

Background

The patient was referred to the psychiatrist by her family doctor and was treated by the psychiatrist from 2011-2013. In 2015, the patient was involved in a car crash and her lawyer requested her medical records from her family doctor. At this time, she discovered that the records contained notes of the psychiatrist’s assessment. The patient advised the psychiatrist that notes in the records regarding her suicidal ideation and a family member’s suicide were incorrect and asked for the entries to be amended. The psychiatrist refused to do so but added an addendum stating that the patient denied her father’s attempted suicide.

The Committee

The Committee decided to take no further action, noting that the College of Physicians and Surgeons’ confidentiality policy (the “Policy”) states that physicians may share information with others involved in the patient’s circle of care unless the patient has withdrawn or withheld consent. The family physician is in the patient’s circle of care and consent was not withdrawn or withheld. However, the Committee noted that it would be prudent for physicians to discuss this practice with their patients.

Also, the Committee held that it was reasonable for the psychiatrist to have declined to amend his records regarding the patient’s suicidal ideations and to have issued an addendum to clarify the notes regarding the patient’s father.

The Board

The Board’s mandate is to consider either the adequacy of the Committee’s investigation, the reasonableness of its decision, or both. An investigation does not need to be exhaustive but the essential information must be obtained to make an informed decision. The Board agreed that the investigation was adequate.

On the issue of reasonableness, the question was whether the Committee’s decision could be reasonably supported by the information before it and can withstand a somewhat probing examination. The Board considered whether the decision falls within a range of possible outcomes that are defensible with respect to the facts and law. In this case, the Board found that the Committee reached a reasonable decision given the Policy regarding information sharing, noted above. The patient’s family physician is in her circle of care and the psychiatrist would be expected to share information regarding the patient with the family physician. There was no information on record stating that the patient told the psychiatrist she did not want him to share information with her family doctor. However, the Board endorsed the Committee’s comment that it would be prudent for doctors to discuss the standard practice of information sharing with referring physicians with patients.

The Board also found that it was reasonable for the Committee to find that the psychiatrist acted appropriately in declining to amend the notes with respect to the patient’s suicidal ideations, which was included in several places. Regarding the notation about the patient’s father, however, the psychiatrist acted appropriately in writing the clarifying addendum.

Takeaway

Physicians may share information with others involved in the patient’s circle of care unless the patient has withdrawn or withheld consent. However, it would be prudent for physicians to discuss this practice of information sharing with their patients. As well, if a patient wishes to correct a record, this should be done if the patient can demonstrate, to the professional’s satisfaction, that the record is incomplete or inaccurate for the purpose However, health professionals are not required to change their professional opinions and of course, they should not correct a record that they did not create. What should occur, is what happened in this case, is to either issue a clarifying addendum or allow the patient to add their own note to the file.

If you have any questions about this decision or regulatory proceedings in general, please contact us.

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Rosen Sunshine by Rosen Sunshine - 2M ago

Please click here to view the May 2019 issue of Rosen Sunshine’s Health Law Bulletin.

To subscribe, click here.

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Health-care providers should take care when sharing a patient’s medical information with law enforcement Lonny Rosen tells AdvocateDaily.com.

Ontario’s Court of Appeal recently upheld the drunk-driving acquittal of a woman involved in a fatal car crash. The court found a police officer violated the driver’s privacy rights by requesting her urine-test results from a nurse before seeking a search warrant.

“This decision makes it clear that an individual’s right to confidentiality in medical information extends to substances taken from their body,” says Rosen.

He says that Ontario’s Personal Health Information Protection Act, 2004 (PHIPA) provides for disclosure of otherwise confidential medical information about a patient for an investigation, as long as it is authorized by law, such as pursuant to a warrant.

“But PHIPA does not authorize providing information to police just because a health practitioner thinks it’s the right thing to do,” Rosen warns, noting that police must come up with their own reasonable and probable grounds for a warrant.

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There is no age of majority when it comes to health-care decisions in Ontario and most of Canada Elyse Sunshine tells AdvocateDaily.com.

The Canadian Press (CP) recently reported on the scheduling of an inquest into the death of a 16-year-old British Columbia boy who overdosed on painkillers, despite his parents’ concerns that they weren’t allowed a say when it came to his use of prescribed opioids.

But, the age of the child will likely have little bearing on the coroner’s findings, says Sunshine.

“Regardless of their age, children are treated by medical professionals in the same way as any other person, as long as they are capable of making their own decisions,” she says. “Whether the child was actually capable may be an issue in this case.”

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