A Primer on the Law for Alberta Psychologists, Social Workers, Addictions & Other Counsellors, and Regulated Health Professionals

This four-part workshop series will provide participants with a practical understanding of the key legal principles governing their professional lives and potential civil liability. It will allow participants to anticipate legal problems, and avoid or minimize them.

The workshop series is composed of four half-day sessions, conducted live online. Each workshop is four hours in length. In the first three and half hours, we will review the detailed program outline that the participants will have received in advance. This gives the participants the opportunity to consider the materials and formulate their questions. Each of the seven to eight-page program outlines is based on the current Alberta legislation and leading Canadian and Alberta cases. Participants will be invited to ask questions at appropriate intervals throughout the session. The last half-hour will be an open question and answer period. It will allow participants to clarify any issues or ask related questions.

Session 1 (November 7th): The Legal Landscape, Consent, Capacity to Consent, Substitute Consent, and Parental Decision Making Authority

Unit one begins with a review of several preliminary issues, including: the increasingly challenging legal environment facing counselling, treatment and care professionals; their sources of legal authority in providing services; their overlapping legal obligations; and the expectations of the Canadian courts. We then discuss the personal (direct) liability of frontline staff and supervisors/administrators, and the vicarious (indirect) liability of employers. The section ends with a brief discussion of the function, authority and disciplinary record of Alberta's Regulated Health Colleges.

Unit Two begins with a review of the legal principles of consent, and the role and legal limits of consent forms. We then examine the legal test of capacity (competency) to consent, who is responsible for assessing capacity, whether there is a minimum age of consent to counselling, treatment and care in Alberta, and the concepts of the mature or emancipated minor. The section ends with several capacity cases involving children, youth, and those with a mental illness or developmental disability.

Unit Three starts with the legal principles governing the exercise of substitute consent and the creation of binding health directives. We then turn to the hierarchy of substitute decision makers and the limited number of situations in which capable individuals may be detained and treated without consent in Alberta. We will examine the legal concepts of "custody" and "access" and the limits on parental decision making authority. The section ends with examples of how the courts apply the "best interest tests" in assessing parental decision making authority.

Session 2 (November 9th): Negligence, Standards of Care, Informed Consent, And Duties of Affirmative Action

Unit One begins with a review of the legal concepts of "negligence," "errors in judgment" and "professional incompetence." Contrary to what some individuals may believe, counselling, treatment and care professionals cannot be held liable in negligence simply because their decision proved to be wrong or the results of the intervention are disappointing. The law does not make health professionals guarantors or insurers of the services they provide.

Unit Two begins with a definition of "customary practice" and the legal impact of complying with or breaching it. We then examine the standard of care of supervisors/administrators in assigning staff, the standard of care expected of students, trainees and interns, and the standard of care in undertaking innovative services, such as e-counselling and tele-health. We then discuss cases that illustrate when the standard of care in counselling will be met and when it will be breached.

Unit Three begins with a brief discussion of the principles that govern civil liability in negligence for failing to obtain an informed consent. We then discuss the duty and standard of care in investigating allegations of child and other abuse, making and supervising placements, and making referrals and providing references.

Session 3 (November 14th): Documentation, Confidentiality, Privilege, Disclosure, and Access

Unit One begins with a discussion of the general principles of documentation (record keeping), the legal importance of good documentation practices, and general guidelines for record keeping. We then examine liability for negligent record keeping practices, ownership and client access to their health records, ownership, and client access to administrative records. The section ends with a discussion computer records, statements of opinion, record retention policies, recording information about or from third parties, and email communications.

Unit Two begins with the legal concept of confidentiality and the overlapping confidentiality obligations that typically apply to counselling, treatment and care professionals. We then identify the sources of these confidentiality obligations and the adverse legal consequences of breaching them. The section ends with a review of the situations in which confidential information is privileged from disclosure, even when sought pursuant to a search warrant, subpoena or mandatory reporting obligation.

Unit Three reviews the disclosure of information based on a client's implied and express consent. We then examine confidentiality, disclosure and access issues related to family and group counselling, and parental rights to access their children's health records. This is followed by a discussion of how to minimize potential liability by developing comprehensive information policies and obtaining the clients' express consent to them at the outset of the relationship. The section ends with working assumptions that ought to be borne in mind.

Session 4 (November 16th): Mandatory Federal and Provincial Reporting Obligations and the Duty to Warn

Although there are very few federal mandatory reporting obligations, there are numerous mandatory reporting obligations under Alberta legislation. Unit One begins a review of the very limited duty to report crimes under the Criminal Code and other federal legislation. This is followed by a discussion of the provincial reporting obligations. The legislation is highly technical in that it typically requires designated individuals, agencies and employers to report specified client information to named officials in certain situations.

Unit Two begins with the reporting obligations related to communicable diseases and other public health issues, unfit drivers, suspicious deaths, and unprofessional conduct including sexual abuse of patients. We discuss the reporting obligations relating to personal heath information and the abuse of patients in nursing homes, hospitals and other care facilities. The section ends with a review of the broad mandatory child abuse reporting obligations.

In Unit Three, we discuss the potential liability of counselling, treatment and care professionals for failing to warn the intended victim of a threat of death or serious bodily harm. We discuss the leading cases on this issue and their broader implications for clients in safety sensitive jobs or clients who only pose a risk to themselves.

Conclusion
This four-part workshop series ends with suggestions for how you can minimize your exposure to potential legal problems and confront the increasingly challenging legal environment with greater confidence.

CEU's:

A certificate showing hours attended will be provided at the end of the on-line training.
This workshop may qualify for the following:

• Psychologists: 16 hours of Professional Development & Ethics training.
• Social Workers: May be eligible for Category A (paper work to be completed).

About the Presenter:

Robert M. Solomon, LL.B. Osgoode Hall Law School and LL.M. Yale Law School
Robert Solomon is currently at the Faculty of Law at Western University, where he holds the rank of Distinguished University Professor, Emeritus. He is the recipient of numerous faculty, university and provincial teaching awards. He has been involved in research and teaching on health care, civil liability, criminal law, and substance use policy for more than 50 years.

He has served as a consultant to Health and Welfare Canada, the Law Reform Commission of Canada, the Canadian Centre on Substance Abuse, the Canadian Institute for Substance Use Research, and the Commonwealth of Australia Health Department. He has advised numerous law firms, government agencies, hospitals, and private and public sector counselling, treatment and care organizations.

Professor Solomon has travelled throughout Canada 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, psychologists, other counsellors, mental health staff, and health care practitioners. He is widely published in his fields of expertise and is the lead author of A Legal Guide for Social Workers, 3rd ed., published by the Ontario Association for Social Workers.

Robert Solomon is an experienced and thoroughly engaging speaker. You will find yourself both entertained and informed.