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Mental Capacity and Medical Records

Mental Capacity and Medical Records

Re Singh Estate 2019 BCSC 272 reviewed the law of both mental capacity as well as the admissibility of medical records under s. 42 Evidence Act and supporting case law.

The court admitted the medical records as business records for the fact that the statements therein were made.

The direct observations of the various medical practitioners in the hospital records are admissible and relevant to the issue of suspicious circumstances.

Hospital records, including nurses notes, made, contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

The principles were stated in McTavish v . McGillivary (1997) 38 BCLR (3d) 306 at 311 – 12:

1) the notes taken must be made, contemporaneously;
2) the notes must be made by someone having a personal knowledge of the matters being recorded;
3) the notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business;
4) the matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business;
5) a statement in the records of the fact that a certain diagnosis was made will be admissible;
6) recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4;
7) the fact that the referring Dr. relied upon another Dr.’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact, so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring Dr. wished or required that opinion to be received before forming his or her own opinion;
8) statements made by parties or by experts which are recorded in the usual and ordinary course of business, but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within section 14 of the evidence act, which allows for the admissibility of such statements. If it can be shown that they are proof of a prior inconsistent statement.

Cambie Surgeries Corp. v BC (AG) 2018 BCSC 859 held that any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact.

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