Those who are members of a professional order, whether a lawyer, a doctor or an engineer, are subject to a code of conduct to ensure respect for ethics. These codes, called Codes of Ethics, contain the duties and responsibilities that govern a profession. By virtue of their position of power, professionals must comply with higher standards than the public when practising their profession.
Physicians in Quebec must comply with the Code of Ethics of Physicians, which specifies the duties and responsibilities of physicians towards their patients. The goal is to ensure the safety, accessibility and quality of service.
In Quebec, this Code has the same force as a law; that is, it is not just a guideline or a suggestion. Therefore, if there is a complaint against a physician, it will be judged under the content of the Code. Indeed, to establish the existence of a fault on the part of the doctor, the courts will look at the Code of Ethics of Physicians to determine whether his behavior is acceptable.
Let’s look at the obligations of doctors in Quebec towards their patients and what recourses are possible in case of prejudice.
The nature and degree of the obligations
Physicians’ obligations can be grouped into four categories:
- Diagnosis;
- Intelligence and information;
- Treatment;
- Confidentiality and professional secrecy.
First of all, it should be made clear that the doctor has an obligation of means and not of results towards his patient. This means that the doctor is not obliged to cure you, but must take all reasonable steps to try to do so. In fact, under section 83 of the Code, the physician even has an obligation to avoid promising the patient’s recovery.
In determining the existence of misconduct, the courts will consider whether the physician acted with the prudence, diligence and competence of a reasonable physician, taking into account the physician’s specialty and the specific circumstances of the case.
For example, if a neurologist treats a patient who, during an appointment or treatment, has a heart attack, he or she will be assessed based on what a reasonable neurologist would have done, not a cardiologist.
The reputation of the physician and the hospital for which they work can also play a role in determining responsibility.
For example, more rigour will be required from a qualified physician and world-renowned expert working in a state-of-the-art hospital.
The obligation to make a diagnosis
The physician should develop a diagnosis with caution and attention, using appropriate techniques and, if necessary, inquiring or referring the patient to a specialist.
It is important to remember that the doctor does not have an obligation of result and is therefore not required to diagnose you correctly. But if, for example, he does not look at your file, does not examine you properly, does not make you do the proper tests or does not communicate your diagnosis, he could be held responsible for having committed a fault.
The obligation to provide information
You must give your free and informed consent to the suggested treatment.
For consent to be free, the person receiving care must decide to do so without being under pressure from third parties (doctor, friends, family, etc.).
For consent to be informed, a physician must provide in a clear and comprehensible manner all relevant information about the treatment, including alternatives, side effects and risks of the treatment. The more serious and permanent the risks (death, loss of mobility, etc.), the greater the obligation to provide information.
To establish fault, the Court will consider whether the physician has informed the patient of all the risks that a reasonably diligent and prudent physician should inform. It will examine the doctor’s behaviour, not the patient’s expectations.
If the Court finds that the physician has not fulfilled his obligation to provide information, he will have committed a fault. If there has also been harm to the patient, the judges will then look at the existence of a causal link. They will analyze whether the patient would have accepted the treatment if he had known all his risks. Judges will apply objective and subjective criteria to make this determination. That is, we will examine what a reasonably prudent and diligent patient would have decided, while taking into account the particular circumstances of the patient.
The obligation to process
When treating his patient, the doctor must do so with caution, diligence, and using the methods common and recognized at the time. This obligation also includes the follow-up of the patient after treatment.
To examine whether the physician has complied with this obligation, a medical expert will often be used. However, if there are different schools of thought about a treatment but both are recognized, the Court will not find fault. Indeed, the courts have neither the expertise nor the mandate to decide which side of the medical community is right.
The obligation of confidentiality
According to article 20 of the Code of Ethics, physicians have an obligation to respect professional secrecy and, consequently, the patient’s privacy. What he learns during any contact with his patient in the context of the practice of his profession is confidential.
The physician must act with discretion and take steps to ensure that those they employ (such as, for example, their secretaries) also respect this duty. This obligation even includes the duty not to disclose that a certain person has used his services.
However, this obligation is not absolute: there are situations in which the doctor will not be required to maintain professional secrecy.
According to article 20(5) of the Code of Ethics, the physician may be authorized to disclose confidential information by law (for example, if there is a risk to the health or safety of the patient or his entourage) or by the patient himself (for example, for insurance).
Obtaining compensation
If you have suffered harm as a result of a doctor’s fault, you can file a complaint with the courts or a disciplinary board. It is important to keep any evidence and note that some of your personal information may be known by judges or committee members.
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