The following article applies in normal circumstances. For more information specific to the COVID-19 pandemic, see the CMPA COVID-19 Hub.
Managing patient access to limited healthcare resources is a reality for Canadian physicians confronted with the dilemma of balancing a patient's needs with available resources. Physicians are understandably concerned a patient may be harmed due to a delay in diagnosis or treatment. Many physicians fear medical-legal consequences if they are unable to meet established wait time benchmarks owing to resource constraints, and are wary of complaints potentially made to their regulatory authority (College).
The CMPA hears doctors’ frustrations and anxieties. "When members reach out to us for advice relating to their practice, a recurring theme that underlies members’ concerns is the feeling of being unable to provide the level of care they would consider to be ideal or at least suitable," says Dr. Todd Watkins, Managing Director of Physician Services at the CMPA. "Knowing the constraints the health system is under, and the difficulties physicians often encounter in trying to fix these problems, is stressful for everyone involved."
What the courts have said
The few legal cases touching on these issues signal that the courts are willing to consider the resources available to physicians when assessing whether the standard of care was met. The courts have stated that an assessment of a physician’s clinical care is not based on a standard of perfection, but rather on the standard of care that might reasonably be applied by a colleague in similar circumstances.
A court in Ontario, for example, has stated that "…a doctor cannot reasonably be expected to provide care which is unavailable or impracticable due to the scarcity of resources."1
Nevertheless, a physician is expected, within those resource constraints, to do the best he or she can for patients, and to act reasonably in such circumstances.
Cost containment or lack of resources: an important difference
The courts have been critical of conscious decisions by physicians not to offer tests or treatments simply to contain costs. This is differentiated from situations in which a physician simply cannot provide the treatment due to a lack of resources. "While physicians have an obligation to use healthcare resources prudently, the courts have confirmed that use of appropriate testing should not be limited by cost," says Dr. Watkins. He also notes that, while physicians should place the best interests of patients first when choosing tests and treatments, they should use resources judiciously and need not overuse them as a way of avoiding possible medical-legal difficulties.
The Choosing Wisely Canada (CWC) campaign2 offers recommendations and resources to help spur conversations about unnecessary tests and treatments that consume valuable time and resources. The CWC recommendations may not be applicable in all cases, and so physicians may choose to refer to relevant clinical practice guidelines to assist in decision-making and appropriate care in specific circumstances.
Ethical and professional duties
A further consideration in dealing with the complexities posed by scarce resources is physicians’ ethical and professional duties to their patients. The Canadian Medical Association's (CMA) Code of Ethics underscores the fine line physicians walk on this issue. The Code asks physicians to "consider first the well-being of the patient" but it also asks them to "use healthcare resources prudently."3 The Québec Code of Ethics instructs a physician to "be judicious in his [her] use of the resources dedicated to healthcare," while at the same time emphasizing that a "physician's paramount duty is to protect and promote the well-being of the persons he [she] attends to...."4 These parallel obligations can sometimes be difficult to reconcile, and this is an ongoing and obvious source of frustration for physicians.
Hospitals, for their part, have their own duty of care toward patients. Canadian courts have confirmed a hospital has a responsibility to provide a "safe system" for patients.5 A hospital must, for instance, ensure systems are in place to coordinate personnel, facilities, equipment, and records so patients receive reasonable care.
Physicians have a role to play in health advocacy and are an important voice in an environment of scarce resources. They should be familiar with their institution’s and College’s policies and guidelines on their role in advocacy activities, and offer recommendations in a professional manner. Physicians in a hospital or institutional setting may face added complexities when advocating for resources that can optimally be applied equitably and fairly across their organization, including the need to navigate an organizational hierarchy or a committee process. The CMPA article, "The physician voice: When advocacy leads to change," available on the CMPA website, offers guidance for physicians when advocating for a patient or for changes on a particular issue.
The bottom line
- When deciding whether to use an available, albeit limited, healthcare resource, you should rely upon sound medical judgment and your patient's best interests.
- The courts will not evaluate your decisions against a standard of perfection. Rather, your decisions will be evaluated in light of what a reasonable physician of similar training and experience would have done in similar circumstances.
- Inform patients when there are difficulties in accessing limited resources, and the steps you are taking to secure these resources. If alternatives are known and available, advise patients about them.
- When appropriate and using approaches consistent with your institution’s and College’s policies and guidelines, consider advocating for patients to resolve issues that arise when limited resources pose an impediment to safe patient care. Document any steps you have taken to attempt to resolve resource issues.
- Mathura v Scarborough General Hospital,  OJ No 47 at para 83 (Gen Div)
- Choosing Wisely Canada [Internet]. Toronto (CA): University of Toronto, Canadian Medical Association, St. Michael’s Hospital; [cited 2018 Aug 13]. Available from: https://choosingwiselycanada.org
- Canadian Medical Association [Internet]. Ottawa (CA): CMA; 2004 (reviewed 2018 March). CMA code of ethics [cited 2018 June 27]; Available from: https://www.cma.ca/En/Pages/code-of-ethics.aspx
- Code of ethics of physicians, CQLR c M-9, r17
- Baynham v Robertson (1993), 18 CCLT (2d) 15 (Ont Gen Div)