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Monday, May 13th 2019

Legal Essentials: Principles Governing Consent, Capacity, Confidentiality, Documentation, Mandatory Reporting and The Duty to Warn

Robert Solomon, LLB, LLM
presented by SOS Workshops

Location: The Highland Country Club (1922 Highland Heights) London, Ontario

The workshop will begin with a review of the legal principles governing consent and capacity to consent to treatment, counselling and care. We will then discuss the elements of a valid consent, the role of consent forms, statutory ages of consent, the broad definition of capacity, and the general principles governing the exercise of substitute consent.

The second section of the workshop will begin with a discussion of the legal importance of good documentation policies and practices. This will be followed by a review of some general rules for documentation, liability for negligent record keeping, the use of computer records, record retention policies, ownership and access to records, email communications, recording information about or from a third party, and statements of opinion.

In the third section, we will examine the legal meaning of the term “confidentiality” and the overlapping sets of common law and statutory obligations that apply to psychologists, social workers and other healthcare professionals. Contrary to what many people understand, the obligation is not an absolute guarantee of silence. This will be followed by a discussion of the concept of privilege and the circumstances in which confidential information need not be disclosed even in the face of a search warrant or subpoena. The section ends with a review of disclosure of patient information based on both implied and express consent.

The fourth section examines the federal and provincial laws that require clinicians and others to report patient information to specified officials. There are numerous mandatory reporting obligations, but they have developed piecemeal. There have been recent changes to several of the existing reporting obligations and recent enactment of new reporting obligations. This section will end with a discussion of a counsellor’s common law duty to warn.

In the conclusion, suggestions on some common sense rules for anticipating and avoiding legal problems and liability. Reference will be made to the leading Canadian cases and the relevant provincial legislation. Participants will be encouraged to ask questions throughout the workshop.

About the Speaker:

Robert Solomon, LLB, LLM is currently on the Faculty of Law at Western University, where he holds the rank of Distinguished University Professor. He is also the National Director of Legal Policy for Mothers Against Drunk Driving (MADD) Canada. He has won teaching awards at both the university and provincial levels.

He has been involved in research and teaching on health care, civil liability, alcohol and drug policy, and criminal law for over 45 years. He has served as a consultant to Health and Welfare Canada, the Law Reform Commission of Canada, the Canadian Centre on Substance Abuse, and the Commonwealth of Australia Health Department. He assisted the Ontario Addiction Research Foundation in developing a provincial substance abuse program for schools, advised the consortium of law firms representing the provinces in suing the tobacco industry and has worked with numerous health, care and counselling organizations across Canada.

Professor Solomon has travelled throughout Canada and Australia presenting legal programs in his fields of expertise. One of his major areas of concern has been the increasingly challenging legal environment facing social workers, health practitioners, addictions staff, and youth workers. He is widely published in his fields of expertise and is the lead author of A Legal Guide for Social Workers, 3rd ed., which the Ontario Association for Social Workers published in 2014.

Workshop Objectives:

• Enable the participants to analyze basic legal issues relating to consent, documentation, confidentiality, and disclosure of patient information.
• Demystify the overlapping patchwork of common law, equitable and statutory provisions governing documentation, confidentiality and disclosure obligations of healthcare and counselling professionals.
• Provide the participants with a framework for analyzing their legal obligations regarding the disclosure of confidential patient information.
• Review the mandatory reporting obligations that apply to the participants, and the potential civil liability for breaching the duty to warn in Canada.
• Ensure that the participants can anticipate and avoid common legal problems.


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