Regulatory and medico-legal barriers to interprofessional practice

Journal of Interprofessional Care

Volumn 19, Issue SUPPL. 1, 2005, Pages 197-223

  Lahey, William ^a   Currie, Robert ^a  

^a DALHOUSIE UNIVERSITY   (Canada)

Author keywords

Canada; Interprofessional relations; Jurisprudence; Legal; Liability; Malpractice; Patient care team

Indexed keywords

CANADA; COURT; CULTURAL FACTOR; HEALTH CARE POLICY; HEALTH CARE QUALITY; HEALTH CARE SYSTEM; HEALTH PRACTITIONER; HEALTH PROGRAM; HUMAN; LEGAL LIABILITY; MALPRACTICE; MEDICOLEGAL ASPECT; NEGLIGENCE; PROFESSIONAL PRACTICE; REVIEW; RISK REDUCTION; TEAMWORK;

CANADA; COOPERATIVE BEHAVIOR; GOVERNMENT REGULATION; HUMANS; INTERPROFESSIONAL RELATIONS; MALPRACTICE; PATIENT CARE TEAM; PATIENT-CENTERED CARE;

EID: 22044446788     PISSN: 13561820     EISSN: None     Source Type: Journal    
DOI: 10.1080/13561820500083188     Document Type: Review

References (128)

1. Like the authors of the other discussion papers, we were provided with the following definition of "collaborative patient-centred practice", which we have equated to "inter-disciplinary practice": Collaborative patient-centred practice is a practice orientation, a way of health care professionals working together and with their patients. It involves the continuous interaction of two or more professions or disciplines, organized into a common effort, to solve or explore common issues with the best possible participation of the patient. Collaborative patient-centered practice is designed to promote the active participation of each discipline in patient care. It enhances patient - and family - centered goals and values, provides mechanisms for continuous communication among care givers, optimizes staff participation in clinical decision-making (within and across disciplines), and fosters respect for the contributions of all disciplines. Similar definitions are found in the literature; see Claude Sicotte et al., "Interprofessional Collaboration within Quebec Community Health Care Centres" (2002) 55 Social Science & Medicine 991-1003, 992. Such definitions seek to differentiate interprofessional care primarily by the attitudes of the participants, by the quality of their experience and by the results achieved rather than by the means by which the results are achieved. The relevance of this point is that it is the means chosen to pursue the ends that is likely to identify the areas of law that are potential "barriers" to interprofessional practice, as well as the potential severity of the barriers. We have gathered that a line appears generally to be drawn between multi-disciplinary practice, where health care is delivered by a team and the central challenge is the coordination of effort between professionals operating within their respective professional boundaries, and interprofessional practice, which seeks (according to some) "to blur the professional boundaries and [which] requires trust, tolerance and a willingness to share responsibility"; M. Nolan, "Towards an ethos of interprofessional practice" (1995) 311 BMJ 305-307. This characterization of interprofessional practice is contested however, with some arguing that it is distinguished from multidisciplinary practice in the recognition that boundaries are negotiable and the willingness of participants to exploit this negotiability in the best interests of patients. Such fluidness in the definition of interprofessional practice obviously reflects the reality that it is an evolving methodology that is pursued in different ways in different contexts. It may look and be experienced differently depending on whether the context is primary, secondary or tertiary care, on whether the context is acute or continuing care, on whether the objective is curative or preventative, on whether the community is urban or rural, on the professions that are involved, and - most importantly - on the needs and requirements of patients and their families. Indeed, the responsiveness of interprofessional practice to context is probably the point on which all proponents would agree upon. It has to be appreciated however, that this presents a difficulty in understanding how law is likely to function as a barrier and if so, in understanding die severity of the legal barriers. For example, as we discuss later, Canadian malpractice law tends to demand role clarity between health care professionals and is more likely to impose liability in its absence. If interprofessional practice does indeed involve a "blurring" of professional boundaries, malpractice law may present a more serious barrier to its implementation than might otherwise be the case.
2. As noted in various recent reviews of the health care system, the other areas of law include collective bargaining law and the various branches of statute law that structure the health care system in terms of governance, ownership, administration and financing. The particular relevance of the latter to interprofessional practice is the exclusion of physician services from the mandate of regionalized health authorities.
3. A more comprehensive discussion is found in Linette McNamara et al., "Chapter 2 - Regulation of Health Care Professionals", in Jocelyn Downie, Timothy Caulfield & Colleen M. Flood, eds., Canadian Health Law and Policy, 2nd ed. (Toronto: Butterworths, 2002) at 55-89.
4. See also James T. Casey, The Regulation of Professions in Canada (Toronto: Carswell, Looseleaf)
5. J. J. Morris, Law for Canadian Health Care Administrators (Toronto: Butterworths, 1996), 43-68.
6. Exceptions include the regulation of dental hygienists and dental assistants by provincial dental boards (see e.g., Dental Act, S.N.S. 1992, c. 3) and the occupations, such as osteopaths, regulated under Ontario's Drugless Practitioners Act, R.S.O. 1990, c. D-18.
7. Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions - Recommendations of the Health Professions Legislation Review (Toronto, 1989), and Regulated Health Professions Act, S. O. 1991, c. 18.
8. See e.g., Nova Scotia's Medical Act, S.N.S. 1995-96, c. 10
9. Registered Nurses Act, S.N.S. 2001, c. 10.
10. Health Professions Act, R.S.A. 2000, c. H-7,
11. Health Professions Act, R.S.B.C. 1996, c. 183.
12. While the scope of practice of any particular profession is largely defined in the legislation that confers self-regulatory status, other statutes often define certain functions or responsibilities that must be discharged by a particular health care professional, usually a doctor. While most of these statutes are also provincial or territorial, some are federal. Two examples are the Food and Drugs Act R.S.C, 1985, c. F-27, s. 14(2) [authorizing only physicians, dentists, veterinary surgeons and pharmacists to be recipient or distributor of drug samples] and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [authorizing regulations determining who can prescribe controlled drugs].
13. The exceptions would be members of another profession working within the overlapping scope of practice of their own profession up to the limit of the overlap.
14. This "right to title" protection is also part of licensure.
15. See, for example, National Health Service Reform and Health Practitioners Act 2002 (UK), 2002, c.17 [establishing Council for the Regulation of Healthcare Professionals].
16. Health Practitioners (Professionals Standards) Act, 1999 (Qld) [Umbrella legislation for regulated health professions in Queensland, Australia], online at http://www.ausdii.edu.au/au/legis/ qld/consolt_act/hpsal1999451/s6.html
17. Health Practitioners Competency Act 2003 (NZ).2003/48 [Establishing single discipline tribunal for regulated professions in New Zealand], online at http://legislation.govt.nz/browse_vw.asp?content-set=pal_statutes.
18. For example, a study of occupational regulation in all sectors in Manitoba found that there were 90 licensed professionals but only 20 licensed professions that were self-regulating and that only 14 of 66 certified occupations were self-regulating
19. see Manitoba Law Reform Commission, Regulating Professions and Occupations (Winnipeg: Manitoba Law Reform Commission, 1994) at 117-123.
20. For example, the exclusive power to discipline members might be used in ways that are more concerned with protecting livelihood than patient safety. Similarly, scopes of practice might be applied strictly more out of a concern for the economic security of members than for the competency of the potential competition.
21. See Report of the Royal Commission on an Inquiry into Civil Rights in Ontario [the McCruer Report] Report No. 1, Vol. 3, (Toronto: Queen's Printer for Ontario, 1968), 1160 and the Manitoba Law Reform Commission, supra note 12, 46-55 and see, for a more general discussion
22. Margot Priest, "The Privatization of Regulation: Five Models of Self-Regulation" (1997-98) 29 Ottawa L. Rev. 233, 271-274 and 283-289.
23. The expertise rationale for self-regulation in the medical profession was recently reiterated by the Supreme Court of Canada: Dr. Q. v. College of Physicians and Surgeons of British Columbia [2003] S.C.C. 19.
24. Kieran Walshe, "The rise of regulation in the NHS", (2002) 324 BMJ, 967-970.
25. Pat Armstrong & Hugh Armstrong Discussion Paper No. 28 - Planning for Care: Approaches to Health Human Resource Policy and Planning, (Commission on the Future of Health Care in Canada, October, 2002), 3-7, 15-18.
26. Commission on the Future of Healthcare in Canada, Building on Values - The Future of Health Care in Canada - Final Report (November, 2002), [hereafter "Building on Values"], 93, 106, 1107, 113, 119, and 151-152.
27. With approval, the Committee quoted Claude Forget, former Minister of Health for Quebec, saying, "the system is not unlike a medieval guild system in the sense that it is rigid and does not allow the use of someone from another related profession if you find that you are in a deficit situation, and move him or her over". Likewise, it quoted Graham Scott, Ontario's former Deputy Minister of Health, testifying that, "we have a very well-funded, well-organized, and powerful monster in the form of each one of these health professional organization": Senate Standing Committee on Social Affairs, Science and Technology, The Health of Canadians - The Federal Role - Volume Six: Recommendations for Reform (October, 2002), [hereafter "Health of Canadians: Vol. 6"], 87-88, 199.
28. Commission d'étude sur les services de santé et les services sociaux, Emerging Solutions - Report and Recommendations (Quebec: Government of Quebec, 2001), [the Clair Commission, hereafter "Emerging Solutions"] 120-125.
29. Saskatchewan Commission on Medicare, Caring for Medicare: Sustaining a Quality System (Regina: The Commission on Medicare, 2001), [the Fyke Commission, hereafter "Caring for Medicare"], 9, 13, 15, 19, 62, and 63.
30. Premier's Advisory Council on Health, A Framework for Reform (December, 2001) [the Mazankowski Committee, hereafter "A Framework for Reform"], 33-35. Although each of these reports concluded that professional regulatory structures were a barrier to integration, particularly in primary care, they each (and especially Clair) put more stress than the national reviews on the overlapping and reinforcing impact of collective agreements and collective bargaining structures.
31. As examples, see Andrew K Dolan, "Chapter 11-Occupational Licensure and Obstruction of Change in the Health Care Delivery System: Some Recent Developments", in Roger D. Blair and Stephen Rubin, eds., Regulating the Professions: A Public Policy Symposium (Lexington, Mass.: Lexington Books, 1980), 223-244.
32. Janet M. Carmichael and Janice A. Cichowlas, "The Changing Role of Pharmacy Practice - A Clinical Perspective" (2001) 10 Annals of Health Law 179.
33. Kathleen Long, "A Reality-Oriented Approach to Interprofessional Work" (2001) 17 Journal of Professional Nursing, 278-282.
34. Daniel Way et al., "Primary health care services provided by nurse practitioners and family physicians in shared practice" (2001) 165(9) CMAJ, 1210-1214.
35. Fonocchio et al. and the Taskforce on Health Care Workforce Regulation, Reforming Health care Workforce Regulation - Policy Considerations for the 21st Century (San Francisco: Pew Health Professions Commission, December, 1995), 9-13.
36. The Kirby Committee is most specific in stating what might be done at this level. The Committee concludes that an independent review of scope of practice rules and other regulations affecting what individual health professions can and cannot do should, "be undertaken for the purpose of developing proposals that would enable the skills and competencies of diverse health care professionals to be utilized to the fullest and enable health care services to be delivered by the most appropriately qualified professionals". It also suggests but does not develop the idea of the adoption of a spectrum approach to regulation (based on the assumption that each profession has its particular strengths and these all need to be properly valued and deployed) in place of the current hierarchical approach (in which each profession is ranked in importance to all others, with physicians at the top of the ladder); see Health of Canadians: Vol. 6, supra, 199 and Senate Standing Committee on Social Affairs, Science and Technology, The Health of Canadians - The Federal Role - Volume 4: Issues and Options (September, 2001), [hereafter "Health of Canadians: Vol. 4"], 109-111.
37. Of course, we understand that this may be a distinction without a difference, in that the literature on occupational regulation would suggest that the appropriation of regulatory powers for occupational self-interest is what we should expect under self-regulation. Yet, none of the reviews make this connection, suggesting a common view that the institution of self-regulation needs to be reformed, not abandoned, at least not yet. Again, Senator Kirby's Committee is clearest on this, if only implicitly, when it quotes Professor Hutchinson to the effect the chances of successfully imposing reform on health professions is very small; Health of Canadians: Vol. 6, 88.
38. Gail Tomblin Murphy and Linda O'Brien-Pallas, Discussion Paper No. 30 - How Do Health Human Resources Policies and Practices Inhibit Change? A Plan for the Future (Commission on the Future of Health Care in Canada, October, 2002), vii, 9-10, 15.
39. Canadian Policy Research Networks, Health Human Resource Planning in Canada: Physician and Nursing Work Force Issues (Commission on the Future of Health Care in Canada, October, 2002), 12-23.
40. Cathy Fooks, et al., Health Human Resources Planning in Canada: Physician and Nursing Workforce Issues - Appendix A: Literature Review (Commission on the Future of Health Care in Canada, 2002).
41. Striking a New Balance, supra note 5; Alberta Health Workforce Rebalancing Committee, Discussion Paper II (July, 1995) and Principles and Recommendations for the Regulation of Health Professions in Alberta: Final Report of the Health Workforce Rebalancing Committee (November, 1995).
42. British Columbia Health Professions Council, "Scope of Practice Review: Part 1-Volume 1-Executive Summary-Policy Issues" and "Part II-Legislative Review", in Safe Choices: A New Model for Regulating Health Professions in British Columbia (March, 2001), online: http://www.healthplanning.gov.bc.ca/leg/hpc/review/index.html (date accessed: 21 September 2002).
43. The risk of further diminishing the relative importance of regulatory bodies as a voice for health care providers at a critical juncture in health care renewal is one of the risks to which we would draw particular attention.
44. The Health of Canadians: Vol. 6.
45. Nurse Practitioner Regulation, Alta. Reg. 126/2002.
46. Nursing Act, S.O. 1991, c. 32, ss. 5.1(1).
47. Registered Nurses Act, S.N.S. 2001, c. 10, ss. 2(z).
48. 2003 First Ministers' Accord on Health Care Renewal, online: http://www.hc-sc.gc.ca/english/hca2003/accord.hml > (date accessed: 5 February 2004).
49. Thus, in the general literature on occupational regulation, it is often argued that licensure should only be applied where it is established that certification is not adequate. For example, the Manitoba Law Reform Commission, supra, concluded that "licensing should be used sparingly, and only to prevent serious harm, as indicated by the likelihood of occurrence, the potential adverse effect on individual persons, and the number of people likely to be affected"; see also R. G. Evans and W. T. Stanbury, Occupational Regulation in Canada (Toronto: University of Toronto Faculty of Law - Law and Economics Programme, 1980) at 31-32. And yet, the actual restrictiveness of licensure is constrained or muted in various ways. For example, the Supreme Court of Canada has ruled that legislation that creates professional monopolies must be strictly construed, so that anything not clearly prohibited to non-members may be done by them; see Pauze v. Gavin, [1954] S.C.R. 15; Laporte v. College des Phamaciens de la Province do Quebec, [1976] 1 S.C.R. 101. In addition there has, in recent years, been a decline in prosecution activity by or on behalf of regulated professions for unauthorized practice whether by members of other regulated professions or by unregulated persons
50. Mary Jane Dykeman, Canadian Health Law Practice Manual (Looseleaf) (Toronto: Butterworths, 2002) para. 4.52 and para. 4.56. Although the point is made specifically with respect to Ontario post-reform, it is also noted that prosecutions were on decline in Ontario prior to the reforms as well. The impression that prosecution activity is down in all jurisdictions is quickly gained from a look through the law reports or from conversations with regulators.
51. In 1996, Nova Scotia adopted a new Medical Act, supra note 6. Since then, nine other professions have either obtained legislation for the first time or had an existing Act replaced with a new one. In all cases, the Acts are modeled on the 1996 Medical Act, meaning that licensure with an exclusive (though often limited) scope of practice has been applied. The legislation includes: the Occupational Therapists Act S.N.S., 1998, c. 21;
52. the Physiotherapy Act, S.N.S., 1998, c. 22;
53. the Chiropractic Act, S.N.S, 1999, c. 4;
54. the Denturists Act, S.N.S., 2000, c. 25;
55. the Psychologists Act, S.N.S., c. 2000, c. 32;
56. the Medical Laboratory Technologists Act S.N.S., 2000, c. 8;
57. the Pharmacy Act, S.N.S., 2001, c. 36;
58. the Licensed Practical Nurses Act, S.N.S., 2001, c. 7;
59. and the new Registered Nurses Act S.N.S., 2001, c. 10.
60. Striking A New Balance, supra. note 5.
61. Final Report of Health Workforce Rebalancing Committee, supra note 24.
62. Safe Choices: A New Model for Regulating Health Professions in British Columbia, supra note 24.
63. Ontario, Health Professions Regulatory Advisory Council, Adjusting the Balance: A Review of the Regulated Health Professions Act (Toronto: Health Professions Regulatory Advisory Council, March, 2001);
64. online at: http://www.hprac.org/downloads/fyr/RHPAReport.pdf. A similar assessment is given in McNamara et al., "Regulation of Health Care Professions". supra note 1 at 70.
65. Supra note 29.
66. Regulated Health Professions Act, S.O., 199 1, c. 18, s. 30.
67. Ian Kennedy and Andrew Grubb, Principles of Medical Law (Oxford: Oxford University Press, 1998), 72-77.
68. Halsbury's Laws of England, 4th ed., Reissue, Vol. 30 (London: Butterworth's, 1992), indicating that doctors and nurses are what we would call certified only (pp. 30, 206), whereas dentistry and midwifery are licensed (pp. 153, 207).
69. Dykeman, supra note 31.
70. Emerging Solutions, supra, 122.
71. Safe Choices: A New Model for Regulating Health Professions in British Columbia, supra note 24, under "Barriers to interprofessional practice".
72. For Nova Scotia, see Registered Nurses Act, S.N.S. 2001, c. 10 and Registered Nurses Regulations, N.S. Reg. 155/2001, s. 28. For New Brunswick, see the Nurses Act, S.N.B, 1984, c. 71, as amended by Bill No. 44, 2002; online, http://www.gnb.ca/legis/bill /editform-e.asp?ID+114&legi+54$num=4.
73. Nursing Act, S.O., 1991, c. 32, s. 5.1.
74. Compare Nurses Association of New Brunswick, Nurse Practitioner Schedules for Ordering: X-Rays, Ultrasounds, Other Forms of Energy, Laboratory & Other Tests, Drugs (October, 2003), Schedule "C" - "Drugs Excluded or Limited" [online, http://www.nanb.nb.ca/pdf_e/Publications/NPSSchedulesE.pdf] to College of Registerd Nurses of Nova Scotia, Guidelines for the Development and Approval of Collaborative Practice Agreements: Primary Health Care Nurse Practitioners (January, 2003) [online, http://www.crnns.ca/documents/GuidelinesCPAprimaryhealthcareJan2003.pdf].
75. Adjusting the Balance, supra note 34, 10-17.
76. For example, Pringle et al., "Interprofessional Collaboration and Primary Health Care Reform" (2000) 91(2) Canadian Journal of Public Health, 85-86.
77. Mur-Veeman et al., "How to manage the implementation of shared care-A discussion of the role of power, culture and structure in the development of shared care arrangements" (2001) 15(2) Journal of Management in Medicine, 142.
78. Atwal and Caldwell, "Do Multidisciplinary integrated care pathways improve interprofessional collaboration?" (2002) Scandinavian Journal of Caring Science, 360-367.
79. Dallaire and Normand, Discussion Paper No. 38-Changes and a Few Paradoxes: Some Thoughts on the Health System Personnel (Commission on the Future of Health Care in Canada, November, 2002). 10-13.
80. Sholom Glouberman and Henry Mintzberg, "Managing the Care of Health and the Cure of Disease-Part 1: Differentiation" (2001) 26(1) Health Care Management Review, 56-69.
81. In each province, the umbrella legislation establishes a set of institutions that are intended to administer and reinforce the common accountability of each profession to government (and to the public through government) and also to ensure at least minimal levels of cohesion and consistency in the administration of the profession-specific statutes. These institutions represent a second layer of regulation that is, in effect, directed at the regulators. They replace a purer form of self-regulation with what might be called "supervised self-regulation". In Quebec, the institutions consist of an office of regulated professions, a forum with representation from all professions for the discussion of general questions of regulatory policy, and an appeals tribunal that has jurisdiction over appeals from decisions of the disciplinary committees of the various professions. In Ontario, they include a similar appeals tribunal (called the Health Professions Appeal and Review Board) and the Health Professions Regulatory Advisory Council (that advises the Minister on questions of policy, including proposals for legislative changes and for the regulation of additional professions). In British Columbia, the interprofessional institutions included the now abolished Health Professions Council and in Alberta, they consist primarily of the Health Professions Advisory Board. The mandate of the latter is to advise government on policy issues, including on decisions about whether self-regulation should and can be extended to other professions.
82. The introduction of nurse practitioners into the Nova Scotia health care system is a good example of the importance of cross-professional institutions at this level. Legislative amendments were needed to achieve legal recognition of the overlap that exists in the competencies of physicians. The same amendments authorized collaborative practice agreements between nurses, doctors and pharmacists under which nurse practitioners may provide some or all of a range of clinical services. These must be approved by a committee, also established by the legislation, with equal representation from the regulatory colleges for nurses, physicians and pharmacists. Disagreements can be taken to an appeal committee that has the same tripartite composition. Apart from pilot projects, this legislative framework has led to the first significant involvement of nurse practitioners in primary care in Nova Scotia. But the legislative changes were necessary, not sufficient, for they were enabling only. A commitment to collaborative practice and a good working relationship between the three regulatory bodies has also been indispensable. It was also a condition for physician participation that nurse practitioners have separate liability insurance. The other enabling condition was government's agreement to separately fund 13 primary nurse practitioner positions with district health authorities.
83. Evans & Stanbury, supra note 31 at 28.
84. See the references to New Zealand and Queensland legislation, supra note 11; for the critical position of the New Zealand Medical Association, see Tricia A. Briscoe, "New Zealand's Health Practitioners Competence Assurance Act: A Missed Opportunity for Improvements to Medical Practice" (2004) 180 Medical Journal of Australia 4. For the idea of the "Supervision of self-regulation", see Priest, supra note 13.
85. Health Authorities Act, S.N.S. 2000, c. 6.
86. Negligence is a branch of the part of the Common Law known as "Tort Law," which "provides a legal means whereby compensation, usually in the form of [monetary] damages, may be paid for injuries suffered by a party as a result of the wrongful conduct of others" ( Hall v. Hebert, [1993] 2 S.C.R. 159 at para. 80).
87. Though it is not the only such avenue. The tort of "battery" addresses claims that providers intentionally touched the person of the patient in a harmful or offensive manner, without the consent of the patient. While medical battery claims are not unknown, in the present day they are decidedly rare. Another avenue by which patients may pursue redress for injury is by alleging a breach of the "fiduciary duty" which physicians, in particular, owe patients as a function of the power imbalance between them. While breach of fiduciary duty is a separate basis for a legal action, such claims generally underpin allegations of negligence, which justifies the focus on negligence here.
88. More broadly, each profession is motivated to establish the parameters of a reasonable standard of conduct and ensure that these good practices are disseminated to, and followed by, their members as much as possible.
89. R. Prichard, "A Report of the Conference of Deputy Ministers of Health of the Federal/Provincial/Territorial Review on Liability and Compensation Issues in Health Care," in Liability and Compensation in Health Care (Toronto: University of Toronto Press, 1990), Executive Summary. Though the notion that providers are motivated by the spectre of liability to provide better quality care remains open to debate
90. see J. Jacobi & N. Huberfeld, "Quality Control, Enterprise, Liability, and Disintermediation in Managed Care" (2001) 29 Journal of Legal and Medical Ethics 305. Motivation for improvement in health care provision also emanates, naturally enough, from those insurers who provide liability coverage to the various provider groups, and insurers play a substantial role in fostering high-quality care.
91. The element of "causation" is, next to standard care, the most important aspect of negligence litigation. Essentially, the court examines the conduct of each individual who provided substandard care and makes a determination as to whether this was a cause of the injury. It is not unusual for causation to be found on the basis of a number of individuals whose actions, taken together, brought about the injury. The barriers we discuss here arise in a nearly identical fashion from causation analysis as from standard of care; as the latter is the more important element, causation will not be discussed in any further detail.
92. Indeed, the professional malpractice law of Canada, the US and the UK is more remarkable for similarity than difference. For a survey of some of the procedural differences between the Canadian and American systems, see J. Gilmour, "Overview of Professional Malpractice Law in Canada" (1994) 3 Annals of Health Law 179.
93. ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 33. Generally speaking, the standard against which providers are measured is not that of the most capable, competent or experienced member of their profession, but rather the "normal, prudent practitioner" (Crits v. Sylvester (1956), 1 D.L.R. (2d) 502 at 508 (Ont. C.A.), aff'd [1956] S.C.R. 991). Specialists, however, are held to a higher standard in accordance with their increased level of knowledge. The law also provides no relief for beginners or inexperienced providers, who are held to the same standard as any other member of their profession, though it is worth noting that a resident is held to the standard of the "reasonable resident," rather than that of a fully qualified physician.
94. As Professor Caulfield has written: "National and, even international clinical practice guidelines are becoming more common - particularly in this era of evidence based medicine. However, regardless of how well formulated, practice guidelines remain only one piece of evidence in the formulation of the legal standard of care. A case-by-case analysis remains the norm. In practical terms, this means that the standard of care is re-examined in each law suit and is generally established by the health care profession itself via the provision of expert testimony" Timothy Caulfield, Discussion Paper No. 24-How Do Current Common Law Principles Impede or Facilitate Change?, (Commission on the Future of Health Care In Canada, 2002), 4.
95. Ibid. See also J. Mohr, "American Professional malpractice Litigation in Historical Perspective" (2002) 283 JAMA 1731.
96. In particularly important cases, advocacy groups may intervene in a particular case in order to convince the court to adopt a particular standard as being correct.
97. The literature on this point is substantial; see by way of example only, M.A. Anderson & L.B. Helms, "Quality improvement in discharge planning: an evaluation of factors in communication between health care providers" (1994) 8(2) Journal of Nursing Care Quality 62,
98. M.L. Proctor, et al., "Incidence of medical error and adverse outcomes on a pediatric general surgery service" (2003) 38(9) Journal of Pediatric Surgery 1361.
99. G. Sherwood, E. Thomas, D.S. Bennett, St P. Lewis, "A teamwork model to promote patient safety in critical care" (2002) 14(4) Critical Care Nursing Clinics of North America 333.
100. S.J. Phillips et al., "Description and evaluation of an acute stroke unit," (2002) 167 CMAJ 655.
101. S. Harris et al., "Induction of labour: a continuous quality improvement and peer review program to improve the quality of care," (2000) 163 CMAJ 1163.
102. M. Modell et al., "A multidisciplinary approach for improving services in primary care: randomised controlled trial of screening for haemoglobin disorders," (1998) 317 BMJ 788.
103. One of the extremely rare reported decisions where a lower standard of care was accepted specifically in order to facilitate recruiting of physicians to rural areas is Elofson v. Davis (1997), 49 Alta. L.R. (3d) 327 (Q.B.). This kind of reasoning has been rejected by other courts, however; see Law Estate v. Simice, [1994] B.C.J. No. 979 (S.C.).
104. This is bearing in mind that standard of care is ultimately an "issue of fact," to be decided on the circumstances of each individual case. However, courts often look to cases which have similar facts in crafting the standard of care.
105. In those situations where there is more than one provider, the courts focus on certain individualized questions: did everyone have complete information? Did everyone know what he/she was supposed to do, and how he/she was supposed to do it? Did each person know what each other person was doing?
106. A couple of recent examples from the caselaw can illustrate. In Law Estate v. Simice, supra note 63 the patient's family doctor, a consulting specialist, and an E.R. internist were all held liable when all three failed to convey to each other various observations made about the patient's condition, resulting in a fatal aneurysm. In DeJong (Litigation Guardian of) v. Owen Sound General, [1996] O.J. No. 809 (Gen. Div.), varied [1999] O.J. No. 4369 (C.A.), the psychiatric patient was being treated under a "team" approach which was at least multi-disciplinary, if not fully inter-disciplinary. Liability for various individual team members was founded in part on a failure by the treatment team to designate a specific team member to conduct and chart observations.
107. We recognize that this precise point is the subject of some debate.
108. Lack of "clarity" as the courts understand the concept might also spur liability as a function of the courts' decision-making process. Clarity of role and function in terms of scope of practice has traditionally been essential to deciding malpractice cases, not only because the courts are called upon to fashion a legal standard of care in individual cases, but because the Common Law system dictates that each case is a precedent for other courts to follow. The courts themselves are meant to strive for clarity and predictability in the law, even as it is applied to different facts. The idea of fluid boundaries might be difficult for courts to accept, then, because of their discomfort with fluidity and because it would be difficult to attach any precedential value to it.
109. This came up quite recently in the palliative care context; see A. Taube, J. Osinchuk, E. Bruera, "Whose Responsibility?" (2003) 19 (2) Journal of Palliative Care 119.
110. Professional culture concerns could operate similarly. A nurse, for example, who has trained under the traditional approach with a defined scope of duties, and emerges from an educational culture that fosters such a role, may be reluctant to take on the increased responsibility that a multidisciplinary structure would entail.
111. E. Picard, G. Robertston, Legal Liability of Doctors and Hospitals in Canada, 3rd ed. (Toronto: Thomson Canada, 1996) at 175: "For example, a surgeon may rely on an anaesthetist to perform his or her task properly, or rely on a resident to assist in surgery and close an incision....".
112. To a certain extent, this approach is simply reactionary on the part of the courts. The health care system effectively informed the courts that physicians bear ultimate responsibility, and the law attached liability in conformity with operational reality. It also operates in tandem with the highly individualized nature of liability in negligence, and in private law generally.
113. That is, where the court determines the amount of a patient's damages and then decides how much each of the liable providers must pay. The other issue is that each provider the court finds negligent is liable "jointly and severally," i.e. the patient can choose to collect all of its damages from that provider, and that provider must seek contribution from other liable providers.
114. In Frandle v. MacKenzie, [1990] B.C.J. No. 2341 (C.A.), a sponge was left in the patient's hip during a bone graft operation. The nurses were held negligent for failing in the execution of their task, i.e., to ensure the retrieval of the sponge. However, the doctor was also held negligent for not preventing the nurses' negligence from harming the patient, specifically by: failing to keep a mental count of the sponges; failing to do a formal count; failing to search the incision himself; and failing to conduct a subsequent investigation. The doctor was held 80% liable, the nurses 20%.
115. In one recent U.S. case, a court found that a legal physician-patient relationship existed between a patient and a physician who never clinically treated him, but sat on the patient's interprofessional treatment team by virtue of his position as Medical Director of the facility; see Fenley v. Hospice in the Pines, 4 S.W. 3d 476 (Tex. App. 1999).
116. For a survey of these issues, see Canadian Medical Protective Association, "Physician liability concerns in primary and secondary health care reform," CAVA Discussion Paper (August 2002).
117. See further discussion of this point, below.
118. Supra note 66.
119. "A careffil consideration of the evidence makes it abundantly clear that the major issues cannot, if reasonably viewed, be considered discretely. That conclusion finds support in much of the evidence given by members of the plaintiffs treatment team, to the general effect that the approach to the treatment of the plaintiff was multifaceted. By way of example only, the plaintiffs medication regime cannot be considered in isolation from the physical environment in which he was located; nor may the latter be meaningfully considered in isolation from the level of observation to which the plaintiff was subject" (ibid. at para. 148).
120. Ibid. at para. 170.
121. Hospitals can also be directly liable for administrative practices that contribute to harm, e.g. not stocking necessary equipment, substandard hiring practices producing poor staff ability levels, etc. See generally E. Picard, "The Liability of Hospitals in Common Law Canada" (1981) 26 McGill L.J. 997.
122. G. Robertson, "Chapter 3 - Negligence and Malpractice," in Downie et al., supra note 3 at 106-108. This latter point was recently reinforced in a collaborative setting in Papp v. North York Branson Hospital (unreported, 4 April 1995, as cited in M. J. Dykeman, The Canadian Health Law Practice Manual, looseleaf (Markham, Ont.: LexisNexis Canada, 2003) at para. 6.57), where the court ruled that the existence of a "teamwork" system in the emergency department "did not change the hospital's relationship with the physicians as independent practitioners."
123. For physician-owned/run clinics, this also raises the insurance issues discussed above.
124. R. F. Cady, "The Legal Forum," (2001) 3(1) JONA's Healthcare, Law, Ethics, and Regulation 8, and the US cases cited therein.
125. DeJong, supra note 66 at paras. 157, 170.
126. The same reasoning would naturally apply to the disciplinary bodies of each profession, particularly in those provinces where there is more lay participation in discipline proceedings, or in which the disciplinary body is set up under generalized professional regulation schemes.
127. Because the courts often look to statutory law to inform their findings on standard of care, practitioners defending negligence actions could point to the statute to demonstrate that the way health care is done has changed and that interprofessional practice must be taken into account.
128. See Pritchard, supra note 55 particularly Appendix A, "Health Care Liability and Compensation Review - Working Paper" at 278-323 and literature cited therein.