The Law and Medical Practice in Québec

Law in the Field of Health

Under review

Many provisions in the Civil Code impact on the field of health, especially those intended to protect the integrity and inviolability of the person and to establish the right to life. These touch on many subjects concerning health: care; the consent to care and the circumstances in which one may use a substitute or disregard it, particularly in the case of minors, incapable persons and those whose condition presents a danger to themselves or to others; respect for a person’s privacy; a person’s right to have access to records concerning him or her; as well as transplants, research projects and ethics committees.

The rules on civil liability, now called contractual liability and extra-contractual liability, are also prescribed in it. Insofar as the relationship between the patient and the physician constitutes a contract, certain articles in the  Civil Code influence medical practice. In fact, the Civil Code governs all contracts established between two persons and fixes their conditions, so that each party is responsible for complying with his or her obligations and for damages resulting from noncompliance.

Because hospitals and professions come under provincial jurisdiction, Québec enacts the laws concerning health. In 1971, the National Assembly adopted framework legislation concerning the organization of the health care system in Québec, namely the Act respecting health services and social services (LSSSS). Given its purpose to improve the health and well-being of individuals and populations, the law establishes the principles and guidelines for the organization of health services and social services in Québec.

Amended many times since, the LSSSS still determines the mandates and methods of organization of public institutions, community groups and coordinating agencies, such as the ministère de la Santé et des Services sociaux and the regional agencies. For example, it provides for the creation of a council of physicians, dentists and pharmacists (CPDP) in every institution, as well as mechanisms for granting or revoking hospital privileges. It also establishes a list of “user’s rights”, among them, the right to choose one’s physician, the right of access to one’s medical record and to adequate care, given the resources available. The processing of users’ complaints has been the subject of important amendments, among them, creating the position of local service quality commissioner.

The Professional Code enacted in 1973 is also a legal framework, in this case for the professional system in Québec. This  Code defines the criteria for recognition of a profession, determines the powers of a  professional order and stipulates the mechanisms an order may use to supervise the professional practice of its members in order to protect the public. Thus, a professional order must establish its own professional inspection committee and its own  code of ethics, put in place a syndic with powers to conduct inquiries, and a disciplinary council with the competence to examine complaints when a member is in breach of a provision of its code of ethics. The Medical Act defines the practice of medicine and establishes the requirements for a permit to practice.

One legal source of particular importance is the Code of ethics of physicians of Québec. This regulation, adopted under the Professional Code, is the fundamental guide to good medical practice.

Among the other laws touching on the field of health, are the Act respecting the protection of persons whose mental state presents a danger to themselves or to others, the Youth Protection Act, the Public Health Act, and the Highway Safety Code.

These particular laws put together, be they provincial or federal, are often referred to as “statutory” law.

The federal government has the power to enact laws in areas devolved to it by the Constitution, namely criminal law, foods and drugs, as well as medications and patents. The federal government has also participated actively and financially in the setting up of provincial health insurance plans. It then passed the Canada Health Act in 1984, which was intended to ensure uniformity among the provincial plans and to establish national standards. This legislation allows the federal government to reduce its financial payment to a province that chooses to disregard it or call into question the principles of accessibility, universality,  comprehensiveness and transferability, or of publicly administered health care systems.

2011-04-04