216

Duty of persons undertaking acts dangerous to life

216 Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.


Annotations | French

  • Section 216

     

  • Section 2 defines “every one” and “person.”

     

  • “Surgical or medical treatment” refers to treatments of a physician who is licencsed to practice in that field: R v Mugenzi , 1995 CarswellOnt 4688 (Ont Ct J (Prov Div)) at paras 46—48.

     

  • “Surgical or medical treatment” does not include cutting a person with razors and rubbing them with herbs as part of a spiritualist ceremony: R v Mugenzi, 1995 CarswellOnt 4688 (Ont Ct J (Prov Div)) at paras 4, 46—48.

     

  • Overview: “Any Other Lawful Act that May Endanger Life”

     

  • “Any other lawful act that may endanger life” can include:

     

  • Overview: “Reasonable Knowledge, Skill and Care” When Administering a Surgical or Medical Treatment

     

  • “Reasonable knowledge, skill and care” is an objective standard. A person administering a surgical or medical treatment will have their knowledge, skill and care compared against those of a person who has “reasonable knowledge and skill and [is] qualified by proper training to administer such treatment”: R v Rogers, [1968] 4 CCC 278 (BCCA) at para 13, leave to appeal to SCC refused; R v W (DJ), 2009 BCSC 1397 at paras 118—119, rev’d in part on other grounds 2011 BCCA 522, aff’d 2012 SCC 63.

     

  • The same standard of “reasonable knowledge, skill and care” applies to all persons administering the same treatment or medical procedure, whether they are licensed medical practitioners or not: R v Homeberg, [1921] 1 WWR 1061 (Alt SC (App Div)) at p 1067; R v W (DJ), 2009 BCSC 1397 at para 118, rev’d in part on other grounds 2011 BCCA 522, aff’d 2012 SCC 63.

     

  • The recommendations of a College of Physicians and Surgeons can show the “reasonable knowledge, skill and care” a person should use when treating a patient: R v Swanney, 2006 BCSC 1766 at paras 54—57.

     

  • “Reasonable knowledge, skill and care” when administering a surgical or medical treatment is assessed against what was reasonable at the time the treatment was administered. However, later advances in medical standards can help clarify what was reasonable in the past: R v Omstead, [1999] OJ No 570 (Ont Ct J (Gen Div)) at para 15.

     

  • Midwives, obstetricians, general practitioners and persons without formal medical training attending to a childbirth must use the “reasonable knowledge, skill and care” of a competent childbirth attendant: R v Sullivan, 1986 31 CCC (3d) 62, 1986 CanLII 1188 (BCSC) at paras 27—28, rev’d on other grounds (1988) 31 BCLR (2d) 145 (BCCA), rev’d in part [1991] SCR 489.

     

  • Evidence from midwives with substantial experience delivering children or a trained obstetrician can show the “reasonable knowledge, skill and care” of a competent childbirth attendant: R v Sullivan, 1986 31 CCC (3d) 62, 1986 CanLII 1188 (BCSC) at paras 29—30, rev’d on other grounds (1988) 31 BCLR (2d) 145 (BCCA), rev’d in part [1991] SCR 489.

     

  • A physician who removes a life-supporting respirator at the request of a mentally competent patient will not fail a legal duty under Section 216: Carter v Canada (Attorney General), 2012 BCSC 886 at paras 213—217, rev’d in part on other grounds 2013 BCCA 435, rev’d 2015 SCC 5.

     

  • A failure under Section 216 can lead to charges that penalize a failure to uphold a legal duty, including common nuisance under Section 180: R v Thornton, [1993] 2 SCR 445 at p 445.

     

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