The following article applies in normal circumstances. For more information specific to the COVID-19 pandemic, see the CMPA COVID-19 Hub.
A young father is home with his child who is recovering from an apparent viral illness. During the late evening, the father notices a rash on the child’s back. Because the local walk-in clinic is closed at this hour and he is concerned about a possible long wait at the emergency department, he decides to phone a “virtual clinic.” He connects with a physician via video chat. The physician performs a virtual examination and concludes the child has a mild viral exanthem. The physician reassures the father that no further action is immediately required.
Although this scenario was once only seen in science fiction, the delivery of medical services online through virtual consultation is now reality. If you are thinking about providing medical services through one of these platforms, you should consider the medical-legal issues that can emerge.
What is a virtual medical clinic?
Most virtual clinics allow patients to connect remotely with a healthcare provider through text, video chat, or telephone. Like walk-in clinics, the medical services typically provided in a virtual clinic are episodic and include consultations, tests, referrals, and prescriptions. Depending on the service, the patient and healthcare providers could potentially be located anywhere in the world.
College requirements
You should be aware of the standards and guidelines of your medical regulatory authority (College), especially with respect to the areas of virtual clinics, telemedicine, and online prescribing.
Some Colleges have published statements specifically on virtual clinics. For example, the College of Physicians and Surgeons of British Columbia states “the care of unattached strangers in virtual walk-in clinic models is to be discouraged,” and “it is almost impossible for physicians to meet expected standards for the majority of patients presenting with episodic concerns in this fashion.”1
The Colleges that do not expressly discourage physicians from providing care through virtual clinics generally encourage physicians to use professional judgment and consider the standard of care when deciding whether to deliver medical services to a specific patient using telemedicine. In the case of virtual clinics, this means you should consider whether the patient’s medical history, including information about medications and allergies, is accessible. You should also consider whether an adequate assessment can be performed using telemedicine, and whether appropriate medication monitoring and follow-up care can be provided or arranged.
Licensing considerations
Some virtual clinics limit services to patients within the same province or territory as the physician. Others, however, permit interactions across national and international borders, including with Canadians located outside of Canada and non-Canadians in Canada.
Before interacting in a virtual clinic with patients in a different jurisdiction, you should consider whether you meet the applicable telemedicine licensing requirements. These requirements vary across the provinces and territories. In some cases, it may be necessary for you to be licensed in the jurisdiction in which you are located and also in the jurisdiction where the patient is located. Other Colleges require special registration, or may place conditions on the provision of such services, or both.
Medical records
It is essential that records are made and maintained for any patient encounter through virtual clinics. In addition to containing information about a patient's medical history and clinical interactions vital to continuity of care, medical records are legal documents that serve as evidence of the care provided.
It is also important for physicians to have continued access to the medical records after the clinical encounter, especially if the patient initiates a claim or complaint. You should clarify with the owner or operator of the virtual clinic who is the custodian of the medical records for patients seen through the clinic. These issues should ideally be addressed in the contract between you and the owner or operator.
Privacy and information security
As it is physicians' ethical and legal obligation to protect patients’ personal health information, you should be satisfied that security protocols are in place to adequately protect patient information transmitted electronically, including video chat software, text messaging, or both. Each has unique privacy challenges that must be considered and addressed.
When providing telemedicine services across provinces or territories, you should also consider the privacy legislation in your home jurisdiction and in the jurisdiction where the patient is located. As well, you should consider what the Colleges in those jurisdictions expect for safeguarding the privacy and confidentiality of patient information. Many privacy commissioners have also issued guidelines relevant to these encounters.
Consent
This method of delivering care, through a virtual clinic, can present some unique challenges in obtaining informed consent. Some Colleges impose or recommend additional consent requirements when using telemedicine. These can include informing patients where physicians are located, what the status of their licence is, and how they will manage the privacy of the patient’s personal health information2. Other Colleges expect physicians to explain the limitations of the telemedicine services and any extra risks arising from those services3. Some require a process to verify the identity of the patient, the physician, or both4.
You should note all consent discussions in the medical record, including any steps you took to comply with specific regulatory requirements. In addition, it may be prudent for you to speak with the owner or operator of the virtual clinic about having all patients read and accept standard terms and conditions. The CMPA has published a template form you can consider using when confirming consent for electronic communications with patients. (Consent to use electronic communications can be found in the Risk Management Toolbox.)
Eligibility for CMPA assistance
The CMPA will generally assist members if medical-legal difficulties arise in Canada from professional work done in Canada. When providing medical services through virtual clinics, the CMPA deems the location where care is provided to be the patient's location at the time of the telemedicine encounter. If the patient is ordinarily resident in Canada and is located in Canada at the time of the encounter, and the legal action is initiated in Canada, you will generally be eligible for assistance.
However, you are not generally eligible for CMPA assistance for matters arising outside of Canada or that result from care provided to patients located outside of Canada. You are also not generally eligible for CMPA assistance if you reside outside of Canada on a long-term basis and provide telehealth to patients in Canada or elsewhere.
Nevertheless, you will generally be eligible for CMPA assistance with a legal action commenced in Canada related to care of a patient through a virtual clinic who is ordinarily resident in Canada, but temporarily located outside of Canada. However, if the matter is brought in a foreign jurisdiction, the Association will generally decline to extend assistance.
For more detailed information, see "Principles of assistance: Treating non-residents of Canada,” and "Principles of assistance: Providing virtual care (including telehealth)."
The bottom line
Virtual clinics are a new reality in the delivery of healthcare. If you are thinking about providing medical services through one of these platforms, you will need to consider the medical-legal issues that can emerge. Keep in mind the following, amongst other things:
- Consider whether you meet any special licensing requirements that may apply.
- Be aware of other standards and guidelines concerning telemedicine, including privacy and security, consent, and online prescribing.
- Confirm with the owner or operator of the virtual clinic who is the custodian of the medical records and ensure you’ll have access to these records if needed later.
Members wanting more information on working with virtual clinics can contact the CMPA.
References
- College of Physicians and Surgeons of British Columbia (“CPSBC”), “Telemedicine as a stand-alone, episodic care service rarely meets expected standards” College Connector, January/February 2017. Accessed May 9, 2018 from: https://www.cpsbc.ca/for-physicians/college-connector/2017-V05-01/05.
- CPSBC, Telemedicine, March 13, 2018. Accessed May 9, 2018 from: https://www.cpsbc.ca/files/pdf/PSG-Telemedicine.pdf; College of Physicians and Surgeons of Nova Scotia, Guidelines for the provision of telemedicine services, December 13, 2013. Accessed May 9, 2018 from: https://cpsns.ns.ca/wp-content/uploads/2017/10/Provision-of-Telemedicine.pdf.
- CPSBC, ibid.; Collège des médecins du Québec (“CMQ”), The physician, telemedicine and information technologies, November 2015. Accessed May 9, 2018 from: http://www.cmq.org/publications-pdf/p-1-2015-02-01-en-medecin-telemedecine-et-tic.pdf; College of Physicians and Surgeons of Saskatchewan, The practice of telemedicine, November 2016. Accessed May 9, 2018 from: https://www.cps.sk.ca/imis/CPSS/Legislation__ByLaws__Policies_and_Guidelines/Legislation_Content/Policies_and_Guidelines_Content/The_Practice_of_Telemedicine.aspx.
- CPSBC, ibid.; CMQ, ibid.; College of Physicians and Surgeons of Manitoba, Bylaw 11, Schedule K (Telemedicine), September 29, 2017. Accessed May 9, 2018 from: http://cpsm.mb.ca/cjj39alckF30a/wp-content/uploads/ByLaws/By-Law-11.pdf;
