Blackadder1916
Army.ca Fixture
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I_am_John_Galt said:What I think is totally irrelevant: in the U.S. unlike in Canada, it is illegal for hospitals to refuse care.
My supposition is you are referring to the Emergency Medical Treatment & Labor Act (EMTALA) in the US, however you are only correct as regards a legislative mandate (with the exception of one province). The Canadian requirement of "duty of care" is based primarily on common law. It is notable though that the problem of refusing treatment and "patient dumping" was so severe in the U.S. (20 years ago) that Congress felt it necessary to enact legislation as an attempt to curb the practise. It has not been such an issue (then or now) in Canada.
http://www.emtala.com/faq.htm
http://www.cms.hhs.gov/EMTALA/
In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual's ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.
The legal duty of physicians and hospitals to provide emergency care (CMAJ • February 19, 2002)
Duty of care
The duty of care is one component of the law of negligence. In order to establish a defendant's liability in negligence, 4 requirements must be met: the defendant must owe the plaintiff a duty of care; the defendant must fail to meet the standard of care established by law; the plaintiff must suffer an injury or loss; and the defendant's conduct must have been the actual and legal cause of the plaintiff's injury.
There are 2 sources of law in Canada: legislation, and common law derived from judicial considerations of legal cases. Case law considering the duty of care in emergency situations is limited in Canada and the rest of the Commonwealth. Although case law in the United States has no binding precedential effect in Canada, relevant US cases have been included in this review, because it is anticipated that, should this issue be litigated, the dearth of Canadian case law will prompt the courts to search for guidance from the US courts.
Under common law a physician has traditionally not been required to undertake the care of someone who is not already a patient. This reflects the position that no person is required to provide assistance to another except in exceptional circumstances. As summarized in St. John v. Pope (Texas Supreme Court, 1995), "Professionals do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter in the course of the day ... It is only with a physician's consent, whether express or implied, that the doctor–patient relationship comes into being." On the basis of the principle of contract law, that both parties must assent to the creation of a relationship, the right of refusal has been extended to emergency situations even when no other physician is available.
However, the common law has been evolving with respect to the provision of emergency medical services. It appears from recent case law that there is now a positive duty for physicians and hospitals to provide emergency care. The common law has been modified in several ways: first, by using the principles of negligence law, specifically those of proximity and foreseeability, to establish that the relationship between the individual and the physician and hospital is sufficiently close to require a duty of care and by using the principle of reliance to establish that the individual has relied upon the services offered by the physician or hospital; second, as a result of ethical considerations; third, by finding a pre-existing relationship between the patient and the physician and hospital; fourth, through public policy considerations; and fifth, in certain jurisdictions, by legislation.
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Legislation
Except in Quebec, there are no currently enforced legislated requirements in Canada for physicians or hospitals to provide emergency care. In Quebec the legislated duty to treat is based on the civil law duty to rescue. However, section 21 of the Ontario Public Hospitals Act alludes to the special status of individuals requiring emergency care and may be interpreted by the courts as mandating a duty to treat such individuals. The section provides that "nothing in this Act requires any hospital to admit as a patient, (a) any person who is not a resident or a dependant of a resident of Ontario, unless by refusal of admission life would thereby be endangered ... "
The example provided in post #160 concerned an individual presenting to a "medical centre" in Montreal. Some cursory research indicates that that this "medical centre" is not a public hospital but more likely a private clinic (doctor's office) probably offering some sort of walk-in service (DIAB).