An article for physicians by CMPA General Counsel
Originally published September 2007
The Courts expect physicians to provide appropriate care to patients, making use of available resources. Physicians can be discussing limitations with patients and may discuss concerns and options with other physicians and administrators.
Managing patient access to limited health care resources is a reality for most Canadian physicians. Physicians are regularly confronted with the dilemma of balancing a patient's needs and best interests with the health-care resources available.
Physicians are understandably concerned a patient may be harmed due to a delay in diagnosis or treatment, and may also commence legal proceedings or initiate a complaint to the regulatory authority (College). Governments and other organizations across Canada have also established wait times for various procedures, and many physicians fear legal consequences if they are unable, due to resource constraints, to meet those benchmarks.
What the courts have said
Unfortunately, the Courts have not yet definitively pronounced on the standard of care expected of physicians in circumstances where scarcity of resources is the issue. The Courts have stated they expect a physician to ensure everything done for a patient meets the standard of care of a reasonably competent physician in similar circumstances. There are indications from the few cases touching on these issues that the Courts are willing to consider the resources available to physicians when assessing whether the standard of care was met. For example, one Court has stated:
"... a doctor cannot reasonably be expected to provide care which is unavailable or impracticable due to the scarcity of resources."
Nonetheless, 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 vs. lack of resources: an important difference
A Court may be critical of the physician for not placing the best interests of the patient first if the physician has not recommended or used warranted medical treatments or tests because of budgeting pressures. Courts have frowned upon conscious decisions by physicians not to pursue a particular course of treatment to contain costs. This is differentiated from situations in which a physician simply cannot provide the treatment due to a lack of resources.
Ethical and professional duties
Physicians should also be aware they have certain ethical and professional duties to their patients. The Canadian Medical Association's (CMA) Code of Ethics underscores the fine line physicians have been asked to walk on this issue. The Code asks physicians to "consider first the well-being of the patient" but it also asks them to "use health-care resources prudently." The Québec Code of Ethics also instructs a physician to "be judicious in his use of the resources dedicated to health care," while at the same time emphasizing that a "physician's paramount duty is to protect and promote the well-being of the persons he attends to..." These parallel obligations can sometimes be difficult to reconcile, and this is an ongoing and obvious source of frustration for physicians.
Physicians should know hospitals have their own duty of care toward patients. Canadian Courts have confirmed a hospital has a responsibility to provide a "safe system" for patients. Some cases have also held that physicians are entitled to rely upon hospitals to have assigned competent health-care providers to work with them. A hospital must also ensure systems are in place to coordinate personnel, facilities, equipment and records so the patient receives reasonable care.
Where resources are scarce, physicians are sometimes requested to provide care that is outside of their area of expertise. The extent to which physicians might be held liable for injury caused to a patient because the appropriate specialist was not available has not yet been fully addressed by a Canadian Court. However, a physician would be expected, regardless of resource constraints, to do the best he or she could for his or her patients and to act reasonably in those difficult circumstances.
The bottom line
If you are concerned about the impact of limited health-care resources on your patients, and how it may affect your exposure to liability or College complaints, consider the following:
When deciding whether to use an available, albeit limited, health-care resource, you should rely upon sound medical judgment and your patient's best interests.
Courts will not evaluate your decisions against a standard of perfection. Rather, your decisions will be evaluated in light of what a reasonable and prudent physician like you would have decided in similar circumstances.
When appropriate, consider advocating for patients and working with others, including your hospital administration, to resolve issues that arise when limited resources pose an obstacle to safe patient care. Both the CMA and Québec codes of ethics expect physicians to collaborate with others in maintaining and improving medical services.
Document any steps you have taken to attempt to resolve resource issues.
Communicate with patients when there are difficulties in accessing limited resources. Advise patients of the steps being taken to secure these resources and, if any available alternatives are known, tell patients about them.
Remember to document all treatment/diagnostic testing decisions made and the reasons for making them.
Be aware that the CMPA is alert to and concerned about these issues and continues to monitor them closely.