Medico-legal risks, scope of work and CMPA assistance

Updated: September 2023

During the COVID-19 pandemic, Canadian physicians are caring for patients despite great uncertainty, resource limitations, and personal risk. Many physicians are also practising outside of their usual scope of work or location. The CMPA will continue to support you, our members, at this difficult time.

FAQ

• Due to the significant shortage of healthcare workers and overcapacity in some hospital departments, I have been asked to provide care outside my usual scope (e.g. non-physician or physician duties). What are the medico-legal risks and will the CMPA assist me if I perform duties outside my usual scope?
• Because the pandemic is creating significant healthcare human resource shortages, many patients do not have primary care providers. As a hospitalist/specialist, what are my obligations when providing care to patients in these circumstances?
• Am I eligible for CMPA assistance with medico-legal matters arising from writing a medical exemption from the COVID-19 vaccination?
• Will the CMPA assist me with potential medico-legal difficulties that may arise from care I provide during this pandemic?
• Will the CMPA assist me with College or hospital matters arising from my refusal to be vaccinated?
• What is CMPA's approach to assisting members with matters related virtual care?
• When practising virtual care, when is a member considered to be “temporarily outside of Canada”?
• What are the CMPA’s general principles with respect to assisting members engaged in health advocacy?

Due to the significant shortage of healthcare workers and overcapacity in some hospital departments, I have been asked to provide care outside my usual scope (e.g. non-physician or physician duties). What are the medico-legal risks and will the CMPA assist me if I perform duties outside my usual scope?

The CMPA recognizes the immense strain on the healthcare system due to the healthcare human resources crisis, the pandemic, surges in other infectious diseases, the opioid crisis, and more. Physicians are being called upon to take on new roles to support their colleagues and the larger system due to the lasting effects of the health emergency and the changing environment. It is challenging to predict all the types of medico-legal difficulty that physicians may face arising from the provision of care in these circumstances.

Physicians asked to perform duties outside their usual scope – whether medical duties or non-physician duties – will want to ensure they have the necessary skills to perform the requested duties or obtain the appropriate support or training to do so. Physicians who do not feel they are sufficiently qualified or competent to perform the requested duties can try to seek guidance from another health professional who is competent and/or has the requisite information to perform these duties or even redirect care where that is possible. Role clarity is also important where physicians are performing non-physician duties. It is expected that hospitals and health authorities will provide guidance for the healthcare team to delineate the expectations for performing non-physician duties or those outside a physician’s usual scope of practice, and how this will work operationally.

The Colleges generally recognize that in exceptional circumstances, such as a public health emergency, it may be necessary for physicians to temporarily practise outside their scope of practice. It will therefore be important for physicians to carefully document the circumstances that led to providing care outside their scope of practice or performing non-physician duties. Keeping such records will be helpful to demonstrate the clinical judgment exercised in the circumstances of scarce resources, should there be any medico-legal difficulties that arise at a later time.

Members who are called upon, on an exceptional basis, to provide care not typically falling within their normal scope of practice remain eligible for CMPA assistance. Members who have specific questions about their eligibility for assistance are encouraged to discuss their concerns with CMPA before providing care, where possible.

Because the pandemic is creating significant healthcare human resource shortages, many patients do not have primary care providers. As a hospitalist/specialist, what are my obligations when providing care to patients in these circumstances?

Generally speaking, once a patient has been assigned to a physician for treatment, a duty of care arises. The duty of care includes the obligation to act in the patient's best interest, refer the patient in appropriate cases to another physician, to order and follow-up on any necessary tests and to attend to the patient as long as good medical practice requires.

Where a hospitalist/specialist is aware that a patient does not have access to a primary care provider, they may have certain responsibilities to make reasonable efforts to ensure that the patient has access to any necessary follow-up care or further referral. What will be deemed reasonable will depend largely on the circumstances of each case, including the patient's condition and the resources available in the community.  The duty of care also generally requires the hospitalist/specialist to inform patients prior to discharge about symptoms and signs that suggest the need to seek immediate medical assistance. These discussions should be documented in the patient’s medical record.

Hospitalists/specialists should also make reasonable efforts in the circumstances to discuss with the patient any available options for alternative primary care. This may include advising the patient of providers or clinics in the community accepting new patients, or referring the patient to matching programs through the ministry of health.

It is also critical for health sector stakeholders to engage on these issues in order to help alleviate and prepare for resource shortages. In this regard, physicians have an important voice in an environment of scarce resources.

Am I eligible for CMPA assistance with medico-legal matters arising from writing a medical exemption from the COVID-19 vaccination?

CMPA assistance is generally available for medico-legal matters arising from a member’s medical-professional work. Members who conduct a proper clinical assessment and provide a medical exemption from the COVID-19 vaccination in an established doctor-patient relationship will generally be eligible for CMPA assistance with related medico-legal difficulties. Members who provide COVID-19 vaccine exemptions without doing proper clinical assessments and outside of an established doctor-patient relationship may not be eligible for CMPA assistance and will need to retain their own private counsel to assist them with any associated medico-legal matters. Members may also find themselves personally liable for damages in a related legal action.

Will the CMPA assist me with potential medico-legal difficulties that may arise from care I provide during this pandemic?

The CMPA will continue to provide members with liability protection for medico-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts.

Will the CMPA assist me with College or hospital matters arising from my refusal to be vaccinated?

The CMPA generally assists members with College and hospital matters relating to the professional practice of medicine; however, CMPA assistance will not generally be available for matters primarily arising from business or personal issues. The CMPA does not generally extend assistance to members to assist them in advocating for changes to government, hospital or College policies.

What is CMPA's approach to assisting members with matters related to virtual care?

In accordance with its usual principles of assistance, the CMPA will assist members with matters arising out of virtual care where the medico-legal problem or legal action is initiated in Canada. If members are contemplating providing virtual care to patients outside of Canada, members should contact the CMPA in advance, if time permits, and provide the details of the circumstances under which care will be provided.

Assistance scenarios:

1. Patient and member in Canada. A virtual care encounter occurs between a patient ordinarily resident in Canada and a CMPA member. The patient and the member are in Canada at the time of the encounter, although they may not necessarily be in the same province/territory. If the medico-legal problem or legal action is initiated in Canada, the member is generally eligible for CMPA assistance.
2. Patient and/or member temporarily outside Canada. A virtual care encounter occurs between a patient and a CMPA member, both of whom are ordinarily residents of Canada (and have an established doctor-patient relationship). At the time of the encounter, the patient or the member, or both, are temporarily located outside of Canada. The CMPA will consider providing assistance with a medico-legal problem or legal action in Canada, arising from urgent follow-up care to the existing patient.
3. Patient residing outside Canada. A virtual care encounter occurs between a patient residing outside of Canada and a CMPA member located either in or outside Canada. In this scenario, the CMPA will generally not assist regardless of whether the medico-legal problem or legal action was initiated in Canada or elsewhere.
4. Member residing outside Canada. Members who are located outside of Canada on a more permanent basis are at greater risk of being sued in that foreign jurisdiction. Where a member is residing outside of Canada on a long-term basis and providing virtual care to patients in Canada, the member will not generally be eligible for assistance regardless of whether the medico-legal problem or legal action was initiated in Canada or elsewhere.

If a patient is outside of Canada temporarily (e.g. on vacation, temporary employment, or students pursuing studies abroad) and phones or emails the physician's office regarding a medical problem related to a condition the physician is managing, the member would generally be eligible for assistance, as long as any medico-legal problem or legal action is initiated in Canada. Given the potential limitations of such communication, it may be prudent to consider advising the patient to seek local follow-up.

If a member is temporarily outside of Canada for a purpose other than providing care (e.g. on vacation, at a conference), the member would generally be eligible for assistance arising from providing any urgent follow-up care to an existing patient, as long as the medico-legal problem or legal action is initiated in Canada. While CMPA assistance is always discretionary, the CMPA generally considers a member to be “temporarily outside Canada” when they are away without the intention to be engaged in clinical care and where they are away for days or a few weeks (less than 30 days).

When practising virtual care, when is a member considered to be “temporarily outside of Canada”?

The CMPA’s Principles of Assistance for Providing virtual care (including telehealth) contemplate that when patients or physicians, or both, are temporarily outside of Canada, issues concerning continuity of care and physician obligations may arise. An example of such a scenario would be a physician who, while briefly overseas for a conference or holiday, is asked to deal with urgent follow-up care related to an existing patient in Canada regarding a condition for which the physician was already involved. In these circumstances, members are generally eligible for CMPA assistance, provided the medico-legal problem or legal action is initiated in Canada. Members are reminded that the CMPA does not generally provide assistance to members with medical-legal matters arising outside of Canada.

The Principles of Assistance for Providing virtual care (including telehealth) were not drafted to deal with circumstances where members live permanently or move to another jurisdiction for an extended period. Members who are located outside of Canada on a more permanent basis are at greater risk of being sued in that foreign jurisdiction. Where a member is residing outside of Canada on a long term basis and providing virtual care to patients in Canada, the member will not generally be eligible for assistance regardless of whether the medico-legal problem or legal action was initiated in Canada or elsewhere. While CMPA assistance is always discretionary, the CMPA generally considers a member to be “temporarily outside Canada” when they are away without the intention to be engaged in clinical care and where they are away for days or a few weeks (less than 30 days). Members who are located outside of Canada during the extenuating circumstances of the pandemic are encouraged to contact the CMPA to discuss their eligibility for assistance.

Whenever members are providing care from outside of Canada, they should ensure they have addressed any potential licensure issues with the regulator in the jurisdiction in which they are residing.

What are the CMPA’s general principles with respect to assisting members engaged in health advocacy?

Assistance will generally be available for matters arising from health advocacy relating to the professional practice of medicine, recognizing that assistance will not generally be available for matters arising primarily from personal or business issues.¹ Where a member is engaged in health advocacy directed at a non-medical audience, they will generally be eligible for assistance in Canada regardless of the forum or medium chosen (e.g. virtual, live, or through various media, including social media). Members engaging in health advocacy directed at a medical audience will generally be eligible for assistance in or outside Canada regardless of the forum or medium chosen. Assistance is also generally available whether or not the member received a financial benefit for participating in the health advocacy activity. However, where a medico-legal difficulty is related to the promotion of a particular product or service, the member will not generally be eligible for CMPA assistance.