Managing patient access to limited healthcare resources has always been a reality for Canadian physicians. The public health emergency created by the COVID-19 pandemic has exacerbated existing backlogs, waitlists, and healthcare worker shortages. Physicians are concerned that patients may be harmed due to a delay in diagnosis or treatment owing to resource constraints, and are wary of civil actions and complaints potentially made to their regulatory authority (College).
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.
Nevertheless, physicians are expected, within those resource constraints, to do the best they can for patients, and to act reasonably in such circumstances. Physicians should document any efforts to obtain the required resources for their patients (e.g. referrals).
Cost containment or lack of resources: an important difference
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. This differentiated from situations in which physicians cannot provide treatments due to a lack of resources. Physicians should place the best interests of patients first when choosing tests and treatments and use resources judiciously, but need not overuse them as a way of avoiding possible medico-legal difficulties.
The Choosing Wisely Canada (CWC) campaign1 offers recommendations and resources to help spur conversations about unnecessary tests and treatments that consume valuable time and resources. More recently, the CWC and Canada’s Drug and Health Technology Agency convened a panel of clinicians, patient representatives, and health policy experts to review and prioritize 19 of the more than 400 CWC recommendations to support decision-making, to help ensure high-value care after the COVID-19 pandemic.2 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 CMA Code of Ethics and Professionalism asks physicians to "consider first the well-being of the patient," but it also asks them to "promote resource stewardship."3 The Québec Code of Ethics of Physicians instructs a physician to "be judicious in [their] use of the resources dedicated to healthcare," while at the same time emphasizing that a protecting patient well-being is the "physician's paramount duty.”4 These parallel obligations can sometimes be difficult to reconcile, and this is an ongoing source of frustration for physicians.
Due to the significant shortage of healthcare workers, physicians may also be asked by their hospitals to take on additional responsibilities or sometimes perform non-physician tasks. Physicians in these circumstances will want to ensure they have the necessary skills to perform the requested duties. It is expected that hospitals and health authorities will facilitate any training that may be required for physicians to properly fulfil these additional responsibilities.
Hospitals, for their part, have their own duty of care toward patients, for instance by ensuring that there are systems in place to coordinate personnel, facilities, equipment, and records so that patients receive reasonable care.
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 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 working in healthcare institutions may face additional hurdles when advocating for patients or system changes. For example, doctors working in facilities may have to channel their recommendations for change through committees, or chiefs of divisions/departments.
The bottom line
- When deciding whether to use an available, albeit limited, healthcare resource, physicians should rely upon sound medical judgment and their patient's best interests.
- The courts will not evaluate physicians’ decisions against a standard of perfection. Rather, decisions will be evaluated in light of what a reasonable physician of similar training and experience would have done in similar circumstances.
- Physicians should document steps they have taken to attempt to resolve resource issues, and should inform patients when there are difficulties in accessing limited resources. If alternatives are known and available, patients should be advised.
- Choosing Wisely Canada [Internet]. Toronto (CA): University of Toronto, Canadian Medical Association, St. Michael’s Hospital; [cited 2022 July 29]. Available from: https://choosingwiselycanada.org
- Basharat S, Born K. Using Health Care Resources Wisely After the COVID-19 Pandemic: Recommendations to Reduce Low-Value Care [Internet; cited 2022 July 29]. Available from: https://canjhealthtechnol.ca/index.php/cjht/article/view/hc0017/123
- Canadian Medical Association [Internet]. CMA; 2018. CMA Code of Ethics and Professionalism [cited 2022 July]. Available from: https://policybase.cma.ca/viewer?file=%2Fmedia%2FPolicyPDF%2FPD19-03.pdf#page=1
- Code of ethics of physicians, CQLR c M-9, r17