The Statutory Framework of Medical Practice in Quebec

Overview

A physician's civil liability in Quebec rests on the general regime of the Civil Code of Quebec (Code civil du Québec, CCQ): fault (faute), injury (préjudice), and causation (lien de causalité) under art. 1457 CCQ, or non-performance of a contractual obligation under art. 1458 CCQ. The content of medical fault, however, is rarely found in the Code. It is supplied by statutes and regulations that define what a prudent physician must do, settle when (secret professionnel) yields to a duty or a permission to disclose, and sometimes remove the civil action altogether. This note, the third in the medical liability series, surveys the Professional Code (Code des professions), the Code of Ethics of Physicians (Code de déontologie des médecins), the Youth Protection Act (Loi sur la protection de la jeunesse), the Highway Safety Code (Code de la sécurité routière), the Act respecting health services and social services (Loi sur les services de santé et les services sociaux), and the Automobile Insurance Act (Loi sur l'assurance automobile), asking of each how it changes the outcome of a claim under art. 1457 CCQ.

Learning Objectives

Identify the provisions of the Professional Code and the Code of Ethics of Physicians that govern professional secrecy and its exceptions.
Explain the under section 39 of the Youth Protection Act and the good-faith immunity in section 43, as interpreted in A c. Décarie.
Analyze the bar on civil actions in section 83.57 of the Automobile Insurance Act and its extension to subsequent medical fault in Godbout c. Pagé.

How Statutes Shape a Fault-Based Regime

Medical liability in Quebec remains fault-based. Art. 1457 CCQ requires every person to abide by the rules of conduct incumbent on them according to the circumstances, usage, or law, and the physician's obligation is one of means (obligation de moyens): to act as a reasonably prudent and diligent physician would in the same circumstances. Statutes enter that analysis in three ways, and the first step in reading any provision is to identify which one is engaged.

Defining the standard of conduct. The "law" to which art. 1457 CCQ refers includes the Professional Code and the regulations adopted under it, first among them the Code of Ethics of Physicians, which give concrete content to the abstract standard of the prudent physician.
Authorizing or compelling disclosure. Professional secrecy is protected by the Charter of Human Rights and Freedoms (Charte des droits et libertés de la personne), and a court may of its own motion exclude evidence obtained in breach of it (art. 2858 CCQ). Several statutes carve out exceptions, some permissive and some mandatory. The difference matters, because a physician who declines to use a permission stands in a different position from one who breaches a duty.
Removing the civil action. Some provisions grant an immunity for acts done in , and the Automobile Insurance Act replaces the civil action with a public compensation scheme. In those cases the fault analysis may never be reached.

The physician is bound simultaneously by the Professional Code, which applies to every member of a professional order, and by the Code of Ethics of Physicians, which applies to physicians alone. The two overlap on secrecy without being identical, and both must be consulted.

The Professional Code and the Code of Ethics of Physicians

Professional Secrecy and the Professional Code

Section 60.4 of the Professional Code is the general rule of secrecy for every regulated profession. Its first paragraph states the duty: the professional must preserve the secrecy of all confidential information that comes to their knowledge in the practice of the profession. The second limits release from that duty to the client's authorization or a law that orders or authorizes disclosure by an express provision; a general statutory power does not suffice.

The third paragraph was adopted after situations involving dangerous patients where the physician, bound by secrecy, could warn no one. It permits the professional to communicate protected information in order to prevent an act of violence, including a suicide, when four conditions are met:

the professional has reasonable cause to believe that a serious risk of death or serious injury threatens a person or an identifiable group;
the nature of the threat inspires a sense of urgency;
the communication is made only to the persons exposed to the danger, their representative, or persons able to come to their aid; and
only the information necessary for that purpose is disclosed.

The fourth paragraph defines "serious injury" as any physical or psychological injury that significantly affects the physical integrity, health, or well-being of a person or an identifiable group.

Two features bear on civil liability. The provision is prospective: it concerns a future danger, not a past act. And it is permissive: the professional "may" communicate. Whether the permission can harden into an obligation, so that a physician who stays silent while the conditions are met commits a fault toward the eventual victim, is a question the case law has not settled, and the courts are reluctant to erode a rule that occupies a central place in Quebec law. In a civil action the question would be framed under art. 1457 CCQ: would a reasonably prudent physician, facing the same threat, have used the permission? The disclosure itself, made within the conditions of the section, is lawful and cannot ground a claim by the patient whose confidence was revealed.

The Code of Ethics of Physicians

Section 20 of the Code of Ethics of Physicians restates the rule for physicians. The physician must keep confidential what has come to their knowledge in the practice of the profession (paragraph 1) and may not disclose facts or confidences of which they have personal knowledge, except where the patient authorizes it, where the law authorizes or orders it, or where there is a compelling and just reason relating to the health or safety of the patient or of those around them (paragraph 5). That third exception is framed without the conditions of urgency and identifiable threat found in section 60.4. Since the physician is bound by both texts, the safer reading treats section 60.4 as governing disclosure to prevent violence and section 20 as the general frame within which any other disclosure must be justified.

Section 21 adds a documentation duty with no counterpart in the Professional Code. A physician who communicates protected information to prevent an act of violence must record in the patient's file, for each communication: the date and time; the identity of the person or group exposed to the danger; the identity of the recipient, specifying whether it was the person exposed, their representative, or a person able to help; the act of violence the physician sought to prevent; the danger identified; its imminence; and the information communicated.

The function of section 21 is evidentiary. If the patient later sues for breach of confidentiality, the file entry is the physician's proof that each condition of section 60.4 was met at the time. A physician who discloses without recording these elements has not necessarily disclosed unlawfully, but has forfeited the best evidence of lawfulness and committed a distinct .

Ethical Breach and Civil Fault

Disciplinary and civil liability are separate regimes. The disciplinary council of the professional order sanctions breaches of the Code of Ethics to protect the public; the civil courts compensate a victim who proves fault, injury, and causation. Neither forum binds the other.

The regimes meet on the content of fault. Because the Code of Ethics codifies what the profession itself regards as competent and prudent conduct, the civil courts draw on it when they define the standard of care. A proven deontological breach may be evidence of civil fault, and the two often coincide, but the equation is not automatic: the plaintiff must still prove that the breach caused a compensable injury, and the court still asks whether a reasonably prudent physician would have acted the same way. Conversely, conduct that respects the letter of the Code of Ethics may be negligent if the circumstances required more.

The Court of Appeal stated the reverse relationship in Pagé c. Godbout, 2015 QCCA 225, discussed below. Even where the Automobile Insurance Act shields physicians and hospitals from the financial consequences of civil liability, they remain answerable on the deontological, regulatory, penal, and criminal levels, and the court refused to call the result an immunity. The civil action is one consequence of medical fault among several.

The Youth Protection Act

The Duty to Report

Section 39 of the Youth Protection Act imposes a duty, not a permission. Every professional who, by the very nature of the profession, provides care or any other form of assistance to children, and who in that practice has reasonable cause to believe that the security or development of a child is or may be considered compromised within the meaning of sections 38 or 38.1, must report the situation to the without delay. The same obligation binds every employee of an establishment, teacher, childcare worker, and police officer who forms the same belief in the performance of their duties.

For the physician, section 39 is a provision by which the law "orders" disclosure, within the meaning of section 60.4 of the Professional Code and section 20(5) of the Code of Ethics. The threshold is reasonable cause to believe, assessed on the medical findings available; certainty is not required, and the duty arises even where the situation only "may be considered" compromised.

Immunity for Good-Faith Reporting

Section 43 provides that no person may be prosecuted for acts performed in good faith under sections 39 or 42. The legislature could not compel reporting while leaving the reporter exposed to a civil action by the family if the report proved unfounded.

A c. Décarie, 2014 QCCS 727 examined the scope of that immunity. A socio-legal committee at the hospital met and a report was made to the DPJ. The physicians who made the initial findings never withdrew their diagnosis, but the report was eventually withdrawn. The plaintiffs sued, alleging in particular that the radiologist had misread the radiographs. He did not defend the diagnosis on the merits; he pleaded section 43, since the reading took place in the context of a report. Had the immunity not applied, the court would have asked whether a prudent and diligent physician would have reached the same diagnosis. That question was never reached.

Two questions of scope arose. Who is protected: only the person who called the DPJ, or the whole team whose findings led to the report? The Superior Court held that the immunity extends to the entire group behind the report. And how long does it last, given that the physicians maintained their diagnosis afterwards? The report is the beginning of a process, not the whole of it, so the protection is not confined to the moment of the call.

The court explained the policy. Without an immunity, physicians practising in collaboration in hospitals, and in children's hospitals in particular, could lose the serenity required to accomplish the first thing society asks of them, which is to treat the sick properly; they could become less effective through defensive medicine and less inclined to collaborate within the multidisciplinary teams from which reports emerge (para. 105). The legislature's higher objective is to ensure that physicians keep their eyes open and act when they have reasonable medical grounds, sheltered from any threat of a civil action that might inhibit them (para. 173). The three defendant physicians had done everything in their power to discharge the obligation in section 39, through the designated person who reported in their name, and benefited from section 43 for all acts performed in good faith in the course of their work (para. 174).

Good faith, not accuracy, is therefore the condition of the immunity. A report later withdrawn, a diagnosis others would have questioned, and a possibly mistaken reading of radiographs all fall within the protection so long as the physicians acted honestly on reasonable medical grounds. The course notes also raise, without resolving, whether the immunity operates as a (irrecevabilité) or as a defence on the merits; in Décarie it was pleaded as a complete bar.

The Highway Safety Code

Reporting Drivers Unfit to Drive

Section 603 of the Highway Safety Code permits any health professional, according to their , to report to the Société de l'assurance automobile du Québec () the name, address, and state of health of a person aged 14 or over whom the professional considers unfit to drive a road vehicle, taking into account the diseases, impairments, and situations incompatible with driving established by regulation. Its second paragraph authorizes every health professional to disclose to the Société the information revealed to them by reason of their profession. Section 605 adds that no action in damages may be brought against a health professional for having availed themselves of section 603.

The structure parallels section 60.4 of the Professional Code: the report is permissive and the disclosure is expressly authorized, so it cannot ground a confidentiality claim. The Highway Safety Code goes further by attaching an express immunity.

Beaupré c. Chehayeb, 2012 QCCQ 14102 shows the provision at work. The patient asked her physician to complete a document she would submit to the SAAQ to obtain her licence. Her diabetes was uncontrolled, and the SAAQ suspended the licence. She sued the physician, arguing that the report to the SAAQ had cost her the licence for a significant period. The Court of Quebec (Cour du Québec) distinguished the field of practice from the field of expertise: the criterion in section 603 is the field of practice, and a physician may do everything the law governing medicine allows. The action was dismissed.

A physician who reports in good faith within the field of practice therefore has no exposure to the patient, even where another professional might have assessed the patient differently. As under section 60.4, whether a physician who chooses not to report a plainly unfit driver commits a fault toward a third party injured by that driver is not answered by a text framed as a permission.

The Act respecting health services and social services is the organic statute of the public health network. It governs the organization and mission of establishments, the rights of users, and the conditions under which physicians obtain privileges and practise within institutions. It contains no liability rule of its own, and the course notes for this lesson list it as part of the framework without extracting a provision. Its relevance is structural.

Three connections should be kept in view. The Act supplies the setting in which the other statutes operate: the "employee of an establishment" bound by section 39 of the Youth Protection Act is an employee of an establishment constituted under it, as was the hospital committee in A c. Décarie. The note on the nature of the patient-hospital relationship examines how the Act bears on the characterization of that relationship as contractual or extra-contractual, a question on which the authors are divided. And in the Godbout litigation, the hospital was sued alongside the surgeon and residents, and section 83.57 of the Automobile Insurance Act protected the establishment on the same footing as the physicians.

The Automobile Insurance Act

The No-Fault Bar

Section 83.57 of the Automobile Insurance Act provides that the compensation provided for in its title stands in lieu of all rights and remedies by reason of bodily injury, and that no action in that respect shall be admitted before any court. The provision does not merely deduct SAAQ benefits from a civil award; it excludes the civil action itself.

The Act came into force in 1978. As the Court of Appeal summarized in Productions Pram inc. c. Lemay, 1992 CanLII 3306 (QC CA), its purpose is to compensate victims of automobile accidents for bodily injury without regard to liability, and it removes the assessment of that injury from the courts and entrusts it to the SAAQ. The scheme spares victims the hazards and expense of a trial, but it sometimes confers benefits well short of what the courts would award. That gap explains why victims look for ways around the bar, and why the courts have refused to open one.

What Counts as an Automobile Accident

The reach of section 83.57 depends on the definition of an , which the courts read broadly. In Pram, a helicopter struck a car. The Court of Appeal held that the injury had been caused by the use of the automobile and fell under the Act: the event was not a traffic accident in the strict sense, but it was no more an aviation accident than a collision between a train and a car is a train accident.

The Supreme Court of Canada generalized that approach in Westmount (Ville) c. Rossy, 2012 SCC 30. The Act is remedial and must receive the large and liberal interpretation required by section 41 of the Interpretation Act (para. 21). Each case turns on its facts, but at a minimum an accident arising from the use of a vehicle as a means of transport has been "caused by an automobile" within the meaning of the Act; every civil action relating to the resulting injury is inadmissible, and the victim must claim from the SAAQ. The vehicle need not have been an active cause; its mere use as a vehicle suffices (para. 52). Whether the car was stationary or crossing an intersection, Mr. Rossy was using it as a means of transport when the accident occurred, which sufficed to render the civil claim inadmissible (para. 53).

Subsequent Medical Fault and the Godbout Litigation

The question that connects the Act to medical liability is whether a physician who negligently treats an accident victim can be sued for the injury the negligence adds to the injury caused by the accident.

In January 1999, Mrs. Godbout was injured in an automobile accident in which her daughter was also hurt. She was hospitalized at Hôpital du Sacré-Coeur under the care of Dr. Pagé and his team. Some time later, still hospitalized, she underwent a bilateral amputation below the knees, and the team noted a severe neurological injury to her right hand. In the following weeks she began receiving SAAQ benefits. In January 2002 she sued the orthopedic surgeon, the orthopedic residents, and the hospital for $3.5 million. In May 2010 the defendants moved to dismiss under section 83.57, and in May 2013 the parties jointly asked to split the proceedings so that admissibility could be decided before a 25-day trial set for 2 December 2013, which would have required more than 20 witnesses, including 12 experts.

The Superior Court, in Godbout c. Pagé, 2013 QCCS 4866, ruled for the plaintiff on the preliminary question. It declared that, should the court find that the defendants committed a medical fault during the post-accident hospitalization and that the fault caused a , section 83.57 does not bar the action (para. 54), and that receipt of SAAQ benefits does not in itself amount to a waiver of the right to sue (para. 55). It found surprising the contention that she could keep both the benefits and a civil award, but did not decide the point (para. 52).

The Court of Appeal reversed in Pagé c. Godbout, 2015 QCCA 225. Taking the alleged fault as proven for the purposes of the motion, the court held that the supposed distinct injury was plainly connected to the plaintiff's physical condition resulting from the accident; one could not truly speak of a distinct injury, at best of (para. 64). The situation might differ if the faulty intervention concerned, for example, a cosmetic surgery requested without any connection to the post-accident condition, simply taking advantage of the hospitalization; one might then speak of , distinct fault, and distinct injury (para. 65). Opening a breach in the scheme would allow the SAAQ to refuse or withhold compensation from any accident victim under medical care, which is almost always the case once an accident is not trivial, on the ground that the aggravation was attributable to the treating professionals (para. 68). And although the Act may let physicians and hospitals escape the financial consequences of civil liability, they remain answerable under the deontological, regulatory, penal, and criminal regimes, so the result is not an immunity (para. 77).

The Supreme Court of Canada dismissed the appeal in Godbout c. Pagé, 2017 SCC 18. The question was whether a person injured in an automobile accident and eligible for benefits under the Act, whose condition worsens because of a third party's fault, may sue that third party for the bodily injury resulting from the subsequent fault. The majority answered no. Certain events subsequent to the accident are its direct continuation, and the public scheme applies to them. The causal link required by the Act is less strict than in the general law of civil liability, and no spatial or temporal concomitance between the accident and the later event is needed: as long as a plausible, logical, and sufficiently close link exists between them, the injury in its entirety is covered. The majority adopted the Court of Appeal's concern about a breach in the scheme (para. 51), and the result holds even for complications arising years after the accident. Justice Côté, dissenting, would have kept the distinction between the two events, reasoning that the Act concerns road accidents and not physicians.

For the physician, the consequence is stark. Where a patient's condition originates in an automobile accident, subsequent medical fault in treating that condition cannot found a civil action for bodily injury, whatever the gravity of the fault or the delay before the complication. The only surviving avenue is the narrow category of a truly distinct injury, together with the non-civil consequences the Court of Appeal expressly preserved.

Worked example: the child, the fracture, and the epileptic father

A ten-year-old is brought to an emergency department after the family car is struck at an intersection. Dr. L orders radiographs. The radiologist reads a fresh fracture consistent with the collision and, on the same films, two older healed fractures that neither parent can explain. The hospital's socio-legal committee meets and a designated staff member reports the situation to the DPJ; six weeks later the report is withdrawn. During the hospitalization, the orthopedic resident sets the fresh fracture badly and the child is left with a permanent deformity. Separately, the father tells Dr. L that he has had two seizures in the past month and has stopped his medication, and asks her to tell no one because he drives for a living.

Three statutes decide three questions. The report was compelled by section 39 of the Youth Protection Act once the radiologist had reasonable cause to believe the child's security might be compromised; under section 43 and A c. Décarie, the radiologist, Dr. L, and the committee members are immune from a civil action by the parents so long as they acted in good faith, and the withdrawal of the report does not remove that protection. The badly set fracture is a subsequent medical fault aggravating a bodily injury caused by an automobile accident; under section 83.57 and Godbout c. Pagé, the child's civil action against the resident, the surgeon, and the hospital is inadmissible, the deformity must be claimed from the SAAQ, and the resident remains exposed only to the deontological and other non-civil consequences of the fault. As for the father, Dr. L may report him to the SAAQ under section 603 of the Highway Safety Code despite his request, and section 605 bars any action in damages by him if she does; whether section 60.4 of the Professional Code also applies depends on whether an identifiable person faces a serious and urgent risk, which a generalized road danger may not satisfy.

Practice Checklist

Professional secrecy

Identify the basis of any disclosure: patient authorization, an express legal provision, the compelling and just reason in s. 20(5) of the Code of Ethics, or the violence-prevention exception in s. 60.4 of the Professional Code.
For a disclosure under s. 60.4, confirm each condition: serious risk of death or serious injury, an identifiable person or group, urgency, and disclosure limited to the proper recipients and to necessary information.
Confirm that the seven elements required by s. 21 of the Code of Ethics were recorded in the file.

Ethical breach and civil fault

Treat a deontological breach as evidence, not proof, of civil fault; establish injury and causation separately under art. 1457 CCQ.
Remember that a to the civil action leaves disciplinary, regulatory, penal, and criminal consequences intact.

Youth protection

Verify reasonable cause to believe the child's security or development was or might be considered compromised under ss. 38 or 38.1, and that the report was made without delay.
Assess good faith; under s. 43 and A c. Décarie, the immunity covers the whole team and extends beyond the moment of the report.

Fitness to drive

Confirm that the patient was 14 or older and that the assessment fell within the field of practice; s. 603 authorizes the disclosure and s. 605 bars any action in damages.

Automobile accidents

Ask first whether the patient's condition originates in an automobile accident, applying the broad reading in Pram and Rossy.
Determine whether the injury attributed to medical fault is distinct or an aggravation; after Godbout c. Pagé, aggravation falls within s. 83.57 and the civil action is inadmissible.

Glossary

Aggravated injurydommages aggravés: A worsening of the bodily injury caused by an automobile accident, as opposed to a distinct injury; after Godbout c. Pagé, it remains within the no-fault scheme.
Automobile accidentaccident d'automobile: Under the Automobile Insurance Act, an event in which bodily injury is caused by an automobile, including any accident arising from the use of a vehicle as a means of transport.
Deontological breachmanquement déontologique: A failure to comply with a rule of professional conduct adopted by regulation under the Professional Code; it may be evidence of civil fault but does not establish it automatically.
Director of Youth Protectiondirecteur de la protection de la jeunesse: The authority to whom reports under s. 39 of the Youth Protection Act are made.
Distinct injurydommage distinct: An injury caused by a fault unconnected to the accident-related condition, such as the Court of Appeal's cosmetic-surgery example; the only category that escapes s. 83.57.
Duty to reportobligation de signaler: The obligation to inform the Director of Youth Protection without delay when there is reasonable cause to believe that a child's security or development is or may be considered compromised (s. 39 Youth Protection Act).
Field of practicechamp d'exercice: The activities the law reserves to a profession, as distinct from the individual practitioner's field of expertise.
Good faithbonne foi: The condition of the immunity in s. 43 of the Youth Protection Act; honesty and reasonable grounds, not accuracy.
Ground of inadmissibilitymoyen d'irrecevabilité: A preliminary objection that disposes of an action without a trial on the merits.
No-fault barinterdiction de recours: The rule under the Automobile Insurance Act that compensation paid by the public scheme stands in lieu of all rights and remedies for bodily injury, so that no civil action for that injury may be brought (s. 83.57).
Novus actus interveniensnovus actus interveniens: A new intervening act that breaks the chain of causation; invoked by the Court of Appeal as the hallmark of a distinct fault and injury.
Professional secrecysecret professionnel: The obligation of every professional to keep confidential the information obtained in the practice of the profession (s. 60.4 Professional Code; s. 20 Code of Ethics of Physicians).
SAAQSAAQ: The public body that compensates automobile accident victims and receives reports of unfit drivers.
Statutory barinterdiction légale: A legislative bar to civil proceedings for acts performed in good faith under a specific provision (s. 43 Youth Protection Act; s. 605 Highway Safety Code).

References and Further Reading

Civil Code of Quebec: arts. 1457, 1458, 2858.
Professional Code, CQLR c. C-26: s. 60.4.
Code of Ethics of Physicians, CQLR c. M-9, r. 17: ss. 20, 21.
Youth Protection Act: ss. 38, 38.1, 39, 42, 43.
Highway Safety Code: ss. 603, 605.
Act respecting health services and social services.
Automobile Insurance Act, CQLR c. A-25: s. 83.57.
Interpretation Act, CQLR c. I-16: s. 41.
Charter of Human Rights and Freedoms.
Selected case law: A c. Décarie, 2014 QCCS 727; Beaupré c. Chehayeb, 2012 QCCQ 14102; Productions Pram inc. c. Lemay, 1992 CanLII 3306 (QC CA); Westmount (Ville) c. Rossy, 2012 SCC 30; Godbout c. Pagé, 2013 QCCS 4866; Pagé c. Godbout, 2015 QCCA 225; Godbout c. Pagé, 2017 SCC 18.
Related notes in this series: Medical and Hospital Liability; Professional Secrecy; Medical Records and Proof of Fault; Causation.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.