The Law and Medical Practice in Québec

Medical Practice and the Law

Under review

This overview of the various laws touching on the area of health shows how a medical act can have legal consequences.

  • A medical act can go against the public order or a standard deemed essential to life in society, such as a Criminal Code provision. One example might be a physician who is the subject of criminal proceedings for having refused to assume care for a tramp in the emergency room; the man had died without having received the appropriate care. Or again, before the Supreme Court ruled that the Criminal Code provision prohibiting abortion was invalid because it was discriminatory, legal action could be taken against a physician for performing an abortion. More recently, in a Canadian province, a medical specialist was accused of having put an end to the life of a suffering, moribund patient, because euthanasia or assisted suicide is still prohibited under the Criminal Code. If a physician is found guilty of a criminal act, the court must, within the guidelines fixed by law, impose a penalty meant to punish, to serve as an example, to express social disapproval and to protect society. In criminal matters, the Crown has the burden of proof “beyond all reasonable doubt”, and the accused is not compellable, or not bound to testify.
  • A medical act may also be subject to one or another of numerous federal or provincial laws that determine a physician’s conduct in a specific instance. This applies notably to the physician’s “statutory” obligation to report to the director of youth protection situations in which a child could be in danger because of negligence or the incapacity of his or her parents. In case of violation, these laws have penalties attached to them, usually in the form of a fine.
  • A medical act may also contravene the Code of ethics of physicians and lead to the imposition of a penalty by a disciplinary council composed of a majority of peers. Physicians are not exempt from a penalty against ethical standards simply because their breach did not have adverse consequences. The ethical and disciplinary process has no compensatory function. Justice in this case is dedicated to protecting the public rather than punishing the physician. Depending on the severity of the physician’s offence, it may warrant imposition of a reprimand, a fine, restriction of the right to practice, or temporary or permanent striking off the roll. The disciplinary council   may also recommend that the professional order impose a refresher training period or course on the physician. Finally, the physician is compellable. Preponderance of evidence is the degree of proof required.
  • When a wrongful act has caused injury to a patient or his or her family, the Civil Code provides for compensation regimes: the professional or civil liability regime. The Civil Code requires that the victim of a medical error establish that a fault was committed, that an injury was sustained and that there is a causal link between the fault and the injury. The physician is compellable. The burden of proof rests with the claimant, except in particular circumstances, and the degree of proof is preponderance of evidence.
  • If, in addition to having committed a fault and caused harm, the physician has illicitly and intentionally violated a fundamental right as contemplated in the Québec Charter of Rights and Freedoms, such as the right to personal integrity, the court may impose exemplary damages.
  • A medical act may also be the subject of a complaint, under the system for examining complaints provided for in the Act respecting health services and social services (LSSSS).

These forms of recourse, on the civil as well as disciplinary and administrative levels, may be used by all patients or their legal representatives, either simultaneously or alternately.