 This is the Dalhousie Health Law Institute's Health Law Primer's Electronic Modules series. This is the second part of the E-Module on an overview of the Canadian legal system. The first part covers four sources of law. This second part will address a few areas of law that you may encounter in the practice of medicine. This is only a basic introduction. Some of the most pertinent topics will be addressed in separate full modules in this series by other instructors. My name is Jonathan Shapiro, and I'm an instructor at the Schulich School of Law at Dalhousie University. My e-mail and telephone number are provided. Please do not hesitate to contact me if you have any questions about the content of the module. In this second module, we will cover four areas or types of law. First, contract law, covering the making of agreements. Second, tort law, which deals with acts that cause injuries. Third, criminal law, which deals with the punishment of wrongful acts. And lastly, administrative law, which is about the rules made by administrative bodies. We'll begin with contract law. Contract law is the law governing binding promises between people. A contract is an agreement between two or more parties, usually for provision of goods or services, in exchange for money, though contracts are not limited in this way, and can cover almost any conceivable topic in exchange. Contract law is governed by the common law, which was discussed in Part 1 of this module series. This means that the rules about how a contract is formed and performed have mostly been created by judges over hundreds of years of dealing with contractual disputes. While contract law can be quite complex, at a basic level there are three elements that form a contract. First, one party must extend an offer, usually to provide their goods or services, and the terms of the offer. For example, would you like to buy my car for $10,000? Then, the other party must accept the offer. When the offer is accepted, a contract is formed. Lastly, the contract must be supported by consideration, which is something of value for each side. In the example above, one side gets $10,000, and the other side gets a car. In the daily practice of medicine, you may see contracts that govern the intake of clients into your medical practice or hospital, agreements that perform specialist medical services, such as in a urology or cosmetic surgery practice, or even the employment agreement between a doctor and a hospital. The next area of law we will discuss is tort law. Like contract law, tort law is defined primarily by the common law rather than by statutes. A tort is a wrongful act that causes an injury to another party. One classic example is the one shown here, a car accident where a driver is going too fast and fails to see a pedestrian. Tort law is primarily an area of private law, which means it is between two private, mostly individual parties. The person who is injured ensues, called the plaintiff, and the person who committed the injurious act, called the defendant. Mostly what is at stake in a tort case is damages, known in everyday language as money. We'll briefly outline two types of torts. First, intentional torts, and then negligence, which in the medical context is, as I'm sure you know, often called malpractice. An intentional tort is when one person does something deliberately which causes harm to another person, or that they mean to cause injury to another person. A good example of this type of conduct is the tort of battery. A battery is the intentional interference with the body of another person, not this, but this. The courts have set out four requirements, which is that the conduct must be direct, meaning aimed at the victim, intentional, meaning deliberate, must involve physical contact, and must be harmful or offensive to the reasonable person. An example in the medical context, which I briefly mentioned in the first part of this module series, would be touching a patient without consent, such as administering an examination or an injection without patient permission. Some other intentional torts include assault, which is threatening someone, false imprisonment, which is limiting someone's freedom of movement, and intentional infliction of mental suffering, which is harassing someone. The second branch of torts is negligence. This is by far the most common tort encountered in society. Unlike intentional torts, where one party has to do something intentionally harmful, negligence occurs where one party doesn't mean to cause harm, but acts without taking proper care, such as driving too fast or failing to maintain your brakes. In the medical context, negligence is called malpractice, where a doctor fails to act as a reasonable doctor would in carrying out his or her duties. It's such an important topic that you will have a whole module on it provided in the series by Professor Matthew Herter. Some basic examples of medical malpractice include failing to ascertain if a patient is allergic to a medication or taking other medications before prescribing one, leaving a surgical implement in a patient after an operation, or performing a medical procedure when impaired by alcohol or drugs. Further detail will be provided by Professor Herter. The next area of law is the criminal law. Unlike both contract and tort law, criminal law is primarily governed by statutes. Mostly that is the criminal code of Canada, but there are other crimes in acts like the Controlled Drugs and Substances Act, which deals with illegal drugs, or the Immigration and Refugee Protection Act, which deals with human smuggling, for example. Criminal law covers a situation where a person commits a wrongful act that is punishable by law. Where tort and contract law are private, criminal law is public. That is, the people involved are not both private citizens. The alleged wrongdoers are private citizens, called the accused, but the other party is the state, often called the crown, who acts in the public interest. What is at stake is not money, but the liberty of the accused. While we're discussing it here for informational purposes, you should know that criminal law only punishes the very worst behavior, and it is extremely rare for any but the most egregious acts to proceed by way of a criminal charge. Almost all medical cases in the courts proceed by way of tort law. Here, I outline some important differences between criminal law and the law of tort or contracts. In criminal law, there was a higher burden of proof. You may be familiar with it from television, which is proof beyond a reasonable doubt. In tort and contract cases, proof of a fact need only be more likely than not, sometimes called a balance of probabilities. Also, in criminal law, because the accused's liberty is at stake, the crown must prove everything about the crime. In tort or contracts, sometimes the defending side is required to prove things. Here are a few sections of the criminal code that create crimes which might arise in medical practice. First, section 216 of the code creates a duty on a person who performs a life-endangering medical treatment to use reasonable knowledge, skill, and care. Failure to do so can, in very extreme cases, constitute criminal negligence under section 219 of the code. It would only be in the most gross cases of negligence that the matter would be criminal rather than handled privately as a tort. Section 241 of the code makes it an offense to counsel someone to commit suicide or to aid in the commission of suicide. This may arise for doctors in the context of end-of-life treatment, and will be discussed in much greater detail in the module at end-of-life law in this series, delivered by Professor Jocelyn Downey. Just as performing an examination or administering a treatment without consent can constitute a tort of battery, discussed previously, in extreme cases it can also constitute the crime of assault under section 265 of the code. Again, it is only in the most serious and egregious cases that criminal law will be engaged. The vast majority of medical wrongdoing is dealt with by way of tort law. The final area of law worth outlining here is administrative law. In the first part of this module, I describe what an administrative body is and how it gets created, but not a lot of detail about what it does or how you might encounter it. Like criminal law, administrative law is primarily governed by statute law, usually the parent statute of the administrative body. There are important common law rules about how a decision from an administrative body is challenged, but for our purposes, the rules from the body itself are mostly statute-driven. This area of law is also public. The people the body regulates might be private citizens, such as individual doctors, but the body gets its power from the state through the enabling statute and acts in the public interest in its dealings. Parent statutes authorize bodies to do all sorts of things, such as conduct discipline or other sorts of hearings, create rules and guidelines for certain actions, and keep records or require registration. And that is just to name a few. As a closing example, let's look at the most important administrative body to you, the Nova Scotia College of Physicians and Surgeons. There will be much greater detail in the college provided in the module in this series on the regulation of the profession of medicine provided by Professor Herter. This is purely a basic introduction. The college is created by its enabling statute, the Medical Act. The Medical Act of Nova Scotia authorizes the college to create all sorts of rules about governing the practice of medicine in Nova Scotia. For example, the college can issue licenses to practice medicine under Section 5 of the College of Physicians and Surgeons Registration Regulations, conduct investigations, and if necessary, hold discipline hearings under Sections 58 to 66 of the Medical Act. The college can pass guidelines on prescribing medication and record keeping, and it has done so. These policies can be found on the college's website, and much, much more. That concludes the two-part opening module on the overview of the Canadian legal system. I hope that it introduced you to some of the key concepts you will see in the remainder of this series of modules. Thank you for your attention. If you have any questions about any of the material I covered, please feel free to contact me. My phone number and email are provided here. As before, please note that this module is not intended as legal advice and is for educational purposes only. Development of this module was made possible by the generous support of Dalhousie University's Health Law Institute.