Legal Aspects

Conclusion

Under review

Québec has inherited a complex legal system. On the one hand, the constitutional laws have established the areas of competence of the federal and provincial governments. As a result, the practice of  medicine in Québec is subject to federal legislation, notably the Criminal Code, and to the various Québec laws, among them, the Professional Code, the Medical Act and the Civil Code. On the other hand, while public law in Québec is British in tradition, private law comes from French law, with a British influence. Civil liability comes under the provisions of the Civil Code of Québec, whereas the other provinces apply common law in cases of civil liability. Still, we have to admit that in both instances the decisions reached are often the same. Finally, Québec and the federal government have  both adopted a charter of rights that guarantees the citizen of certain fundamental rights and makes other laws subject to the requirements of the charters. They have also enacted several other laws that have a more or less direct effect on the practice of medicine.

Finding one’s way through this juridical and legislative maze is not an easy process for physicians. Indeed, one same medical act can bring into play the application of,

  • a provision of the charter that protects, for example, the integrity of the person, the violation of which may result in a conviction with damages, and when the fundamental rights violation is “illicit and intentional” a conviction with exemplary damages;
  • the Criminal Code, which prohibits “active” euthanasia in particular and provides for penalties intended to reflect societal disapproval and to ensure the protection of
    the public;
  • the Code of ethics of physicians, if the act violates a standard of conduct that physicians have imposed on themselves, which in turn may lead to disciplinary measures, the first purpose of which is to protect the public;
  • a penalty in the form of a fine imposed by the tribunal, if, in the practice of his or her art, the physician disregarded a provision of a particular law or regulation.

While they are different, these mechanisms are part of the body of legislative measures ensuring the population of quality  care. While civil liability is primarily intended to compensate patients who have sustained an injury, it is also linked to professional obligations and medical ethics in the same way as medical ethics is linked to laws that have an impact on the practice of medicine.

To the extent that these laws and regulations are also perceived as beacons, whose purpose is not to hinder but to guide, they should in practice facilitate decision-making
for physicians and patients alike. And these decisions should take into account social choices, the professional obligations of  physicians, the rights  and expectations of patients as well as the interests and convictions of each and everyone.

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