An article for physicians by CMPA General Counsel
Originally published September 2008
Physicians discharging patients in need of follow up care may have certain responsibilities.
Of interest to all medical trainees and their supervising physicians
Patients without a regular family physician, otherwise known as "orphan patients," are a reality of the modern health care system. Orphan patients often create a dilemma for physicians, particularly those managing patients in hospital, emergency departments or walk-in clinics, when it comes to arranging follow up care after discharge. In the normal course, patients discharged from hospital or a walk-in clinic, for example, may be instructed to follow up with their family physician. But what happens when the patient does not have a family physician?
As a treating physician, if you are about to discharge a patient who you know is in need of follow up care but does not have a family physician, you may be under an obligation to take reasonable steps to ensure that the patient has access to appropriate follow up care. This is typically limited to care related to the condition for which the physician was treating the patient. Despite the lack of a family physician, there may be steps you can take to assist orphan patients in these circumstances.
Ongoing duty of care
Whether a physician in an inpatient or an outpatient setting has an ongoing responsibility to provide care to a patient will be determined based on the circumstances of each case. Amongst the factors that may be considered in this regard is whether a doctor-patient relationship has been established. There may be other circumstances (such as an emergency or contractual obligation) where the physician may also be required to provide care.
The degree to which you have assumed responsibility for a patient's care to date is often one of the factors used to determine whether a continuing relationship has been created. The Canadian Medical Association's Code of Ethics states that a physician who accepts professional responsibility for the overall care of a patient may be under an ethical and/or professional obligation to continue to provide medical care until no longer required or wanted, another suitable physician has assumed responsibility for the patient or the patient has been given adequate notice that the relationship will be terminated.
With limited exceptions, care provided in an emergency department or a walk-in clinic has generally been held not to create an ongoing duty of care on the physician once the patient has been discharged. The exceptions in which a treating physician may continue to owe a duty of care to the patient include following up on tests or investigations ordered during the encounter.
In discharging a patient, you are generally responsible for ensuring that the patient is properly discharged. In some cases, this may include appropriate instructions to the patient and a suitable follow up plan. Where you are aware that the patient does not have access to a family physician for the necessary follow up care, you may have certain responsibilities to make reasonable efforts to ensure that he/she has access to the necessary care for that condition. 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.
Generally speaking, you are encouraged to document in the patient's medical record relevant discussions or actions taken in the course of treating and discharging a patient.
Where appropriate, consideration may be given to informing patients at the outset of care that the clinic or emergency department is intended solely to provide "one-off" or emergency care. Where follow up care is required, you may consider emphasizing to the patient of the need to make appropriate arrangements for continuing medical care. In addition to providing patients with sufficient information concerning their condition, treatment and potential foreseeable complications, you may consider providing orphan patients with a report or letter that could be used by a subsequent treating physician.
When treating a known orphan patient, you should make reasonable efforts in the circumstances to discuss with that patient the available options for alternative primary care. This may include referring the patient to a search feature on a medical association or regulatory authority (College) website (for example, the "Doctor Search" feature on the College of Physicians and Surgeons of Ontario website), or advising them of physicians or clinics in the community accepting new patients. In any event, the patient should be reminded to return to the emergency or walk-in clinic for emergent care.
Follow up for orphan patients
The reality is that physicians in emergency departments or walk-in clinics cannot reasonably be expected to continue to treat all orphan patients after discharge where the condition is non-emergent. Nevertheless there are steps you may consider to assist a patient in these circumstances.
Where appropriate, you may consider referring the patient to a walk-in clinic or a specialist for follow up. Prior to making the referral, you should ensure that the specialist is willing to accept the patient and able to provide the necessary care. In this regard, advance communication to the specialist may be helpful.
If this is a recurring problem, you may also consider discussing this situation with your hospital or clinic administration, preferably in writing. In some cases, there may be an opportunity to collaborate on a protocol for assisting patients who no longer require inpatient care but require follow up and do not have a family doctor. Arrangements that might be considered include identifying as early as possible during the admission those patients likely to require follow up care who do not have a family physician, keeping an up-to-date list at the hospital of local family physicians accepting new patients, and even providing assistance from a social worker or patient representative in arranging the first follow up appointment.
You may also consider canvassing potential solutions with your professional association as well as your respective provincial/territorial ministry of health and/or College.
Colleges across the country have addressed the issue of follow up care for orphan patients in a variety of ways. Generally, however, they would expect that if you have treated a patient who you know is in need of follow up care, but does not have a family physician, you will take reasonable steps to ensure the patient has access to appropriate follow up care.
At least two Colleges to date have explicitly commented on the issue of follow up care for orphan patients. In Québec, article 32 of the Code of ethics states that "A physician who has undertaken an examination, investigation or treatment of a patient must provide the medical follow up required by the patient's condition, following his intervention, unless he has ensured that a colleague or other competent professional can do so in his place." The College of Physicians and Surgeons of Newfoundland and Labrador has stated that in some circumstances, the failure to provide ongoing outpatient management for orphan patients might give rise to an allegation of misconduct. The College emphasized that a physician's responsibility for a patient "may not be simply deemed to terminate on discharge from hospital." Rather, the physician might, in certain circumstances, continue to owe a duty to a patient where it is known that he/she does not have a family physician and yet requires ongoing outpatient management. Even if the patient acknowledges that the care in the emergency department or walk-in clinic is not intended to include follow up care, the College warns that consideration would still have to be given to whether the patient was truly informed and voluntarily consented.
It has been suggested that recurrent visits to a walk-in clinic may create an ongoing duty of care. The College of Physicians and Surgeons of British Columbia most recently passed a new policy that states, in part, "Patients who attend the same clinic on three or more occasions for a similar or related complaint, particularly if they do not have an identified family physician, are assumed to be receiving all their care from that clinic." The B.C. College also states that in these circumstances, the "attending physician(s) must accept responsibility for chronic disease management..., for health maintenance..., and for other aspects generally included in traditional primary care."
The bottom line
Whether an ongoing duty of care exists will be determined on the circumstances of each case.
A physician discharging a known orphan patient who is in need of follow up care may have certain responsibilities to take reasonable steps to assist that patient in accessing the required care.
Consideration may be given to referring such patients to a walk-in clinic or an available and appropriate specialist for follow up care.
The patient should be properly informed of the limited nature of the care being provided so that he/she can take the necessary steps to seek the required follow up care.
Members are encouraged to discuss the issue and possible solutions with hospital administration and/or to contact the CMPA for advice in specific circumstances.