BSN2057 Week 4 The Canadian Legal System and Its Application to Nursing & Professional Misconduct, Malpractice, Negligence,

, Incompetence, and Incapacity While reading, make note of the following questions: a) What is Canadas legal system founded upon and what are the various sources of the common law in Canada? Canadas legal system is derived from English common law, a system based on rules, principles, and doctrine developed over time by English judges that was meant to be applicable to the people of England. These rules were often based on common sense or common practices that had evolved over the centuries and were deemed to have always existed and been accepted or understood by society. Sources of common law in Canada are primarily case law and statute law. Case law is a compilation of rules and principles that govern day-to-day life, such as laws of negligence and of contract, and are contained in an extensive body of precedent developed through centuries of judicial rule-making in countless previously decided court cases. Statute law is a formal, written set of rules passed by parliament or other legislative body to regulate a particular area, such as Ontarios Regulated Health Professions Act (1991), which regulates all health professions of Ontario. Secondary sources of common law in Canada are doctrine and custom. Doctrine is found in textbooks, articles and journals written by legal scholars and academics clarifying a particular area of law. Authors comment on statute and case law, and elaborate upon and interpret the legal principles found in these sources. Custom are principles and rules of a particular trade. The courts will elevate accepted practice in a particular trade to a rule of la when statutes and the common law are silent on a particular issue.

b) What is the Canadian legislative process? c) What are the Canadian Constitution and the Charter of Rights and Freedoms? Constitution of Canada is a set of supreme laws that define and regulate the various branches of government, their powers, and restrictions on those powers. Charter of Rights and Freedoms is a portion of Canadas Constitution Act that sets out the fundamental rights and freedoms of all persons in Canada and limits the rights of the state to infringe upon these rights. Laws or governmental actions that violate these rights without proper justification are null and void. d) What is the Regulated Health Professions Act (RHPA)? The RHPA is a general or omnibus act. This means that it sets out the general purpose of the regulatory model for health professionals in Ontario, establishes the relevant authority for the Minister of Health to administer the Act and establishes the agencies that the Ministry will use in the Acts administration. The RHPA does this by: Setting out the powers of the Minister of Health; Creating the Health Professions Regulatory Advisory Council (HPRAC); Creating the Health Professions Appeal and Review Board (HPARB); Identifying the 14 controlled acts that are potentially harmful if performed by unqualified persons; Setting out the list of which professions will be self governed under the Act; and, Establishing the Health Professions Procedural Code, the set of obligations that governs the activities of all the regulated professions. The Nursing Act, 1991 contains a scope of practice statement, as well as provisions and regulations specific to the nursing profession. It includes definitions of the classes of nurse registration, entry-to-practice and title protection regulations, and regulations on initiating controlled acts. f) What are Controlled Acts?

e) What is the Nurses Act (1991)?

Each health profession has a scope of practice statement that describes what the profession does and the methods it uses. For nurses, its: The practice of nursing is the promotion of health and the assessment of, the provision of care for, and the treatment of health conditions by supportive, preventive, therapeutic, palliative and rehabilitative means in order to attain or maintain optimal function. Regulated health professionals are allowed to perform controlled acts, which are actions that are considered potentially harmful if performed by unqualified persons. The RHPA defines 13 controlled acts that can only be performed by a regulated health professional or under specific circumstances. Nurses are authorized to perform three of these acts: 1. performing a prescribed procedure below the dermis or a mucous membrane; 2. administering a substance by injection or inhalation; and 3. putting an instrument, hand or finger: beyond the external ear canal; beyond the point in the nasal passages where they normally narrow; beyond the larynx; beyond the opening of the urethra; beyond the labia majora; beyond the anal verge; and into an artificial opening into the body. Nurses may perform procedures within these controlled acts under the following two circumstances: 1. A medical doctor, dentist, midwife or chiropodist orders the procedure.

2. The procedure is self-initiated by a member who has met the conditions for selfinitiation included in the regulations within the Nursing Act. There are exemptions under which unregistered individuals may perform these acts: when providing first aid or temporary assistance in an emergency; when, under the supervision or direction of a member of the profession, a student is learning to become a member of that profession and the performance of the procedure is within the scope of the professions practice; when treating a member of a persons household and the procedure is within the second or third controlled act authorized to nursing; when assisting a person with his or her routine activities of living and the procedure is within the second or third controlled act authorized to nursing; or when treating a person by prayer or spiritual means in accordance with the religion of the person giving the treatment. g) What is the Personal Health Information Protection Act (PHIPA)? The Personal Health Information Protection Act, established in 2004, outlines privacy regulations for health information custodians in Ontario, Canada. Breaches of PHIPA are directed to the Ontario Information and Privacy Commissioner. The Personal Health Information Protection Act serves three important functions: To govern the collection, use and disclosure of personal health information by health information custodians". To provide patients with a right to request access to and correction of their records of personal health information held by health information custodians. To impose administrative requirements (regulations) on custodians with respect to records of personal health information.

h) What is tort law? What is the difference between intentional and non-intentional torts? A tort, in common law, is a civil wrong. Tort law deals with situations where a person's behavior has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss. An intentional tort in the medical field could include any intentional tort that someone can commit outside the medical field - such as assault, battery, false imprisonment, fraud, etc. An example of battery that could conceivably be committed by a doctor would be the doctor performing an operation that the patient did not consent to. The classic unintentional tort, in any field, is negligence. Negligence is an unintentional tort because the tortfeasor does not intend to cause harm, but, through careless behavior, does cause harm. In the medical field, negligence is generally called "malpractice" - when a doctor or other medical professional fails to exercise the proper skill, judgment, or care expected of such a professional, and through this failure, causes injury to a patient. i) What is criminal law? Criminal law is a relationship between an individual and the state and the breach of criminal statutes. j) What is a lawsuit? How does a legal action typically process through the court system? A lawsuit or action is a court proceeding in which an injured party asserts a claim for damages or some other remedial court order against a wrongdoer.

k) What is the difference between standards of practice and professional standards?

Nursing is a self-regulating profession, meaning that the provincial/territorial governments delegate to the nursing profession, by statute, the power to regulate itself in the interest of the public. One of the characteristics of a self-regulating profession is the development of standards of practice, based on the values of the profession. For nurses in Canada, these values are articulated in the Code of Ethics for Registered Nurses. Regulatory bodies for nursing have the legal requirement to set standards of practice for registered nurses to protect the public in their province or territory. Together, the code of ethics and standards provide the basis for nursing practice in Canada. Therefore, the provincial/territorial regulatory bodies establish, monitor and enforce standards of professional practice and conduct The Professional Standards practice standard provides an overall framework for the practice of nursing and links with other practice standards, guidelines and competencies developed by the College of Nurses of Ontario. (Accountability, Continuing Competency, Ethics, Knowledge, Knowledge Application, Leaderships & Relationships) l) Define the following i. Professional Misconduct in the regulation of the nursing profession, any conduct by a licensed or certified nurse that specifically contravenes the ethical and professional standards or rules of conduct set out by the provincial regulatory body. ii. Malpractice failure of a health care professional or other specialist to pbserve and adhere to the appropriate standards of care for a given act or procedure; the negligent performance of a procedure or act requiring a reasonable degree of professional skill and ability.

iii. Negligence nonintentional category of tort law wherein one person has, through carelessness, failed in a duty of care toward another such that that other has sustained injury to a person or property as a result of the persons act or failure to act. iv. Incompetence lack of physical or intellectual ability or qualifications. v. Incapacity lack of ability, qualification or strength. - Law: lack of the legal power to act in a specified way or ways.