Legal and regulatory proceedings
Changing physician-hospital relationships: Managing the medico-legal implications of change
An article for physicians by physicians
Originally published September 2011
The Canadian healthcare system is constantly evolving to meet emerging needs. The changing face of the Canadian population, healthcare resource constraints, new technologies, higher expectations for healthcare outcomes, and a desire for greater accountability are among the current, significant changes. The role of physicians in the healthcare system is also changing. Widespread adoption of collaborative care models and greater use of inter-professional teams have improved access to care for Canadians. While the Canadian Medical Protective Association (CMPA) supports the efforts to expand the delivery of care, a number of the changes pose particular medico-legal challenges.
An important element of this transformation is the manner in which longstanding relationships between physicians and hospitals are changing. Some of these changes are being witnessed across the country, while others are the result of local conditions. System-wide decisions aimed at improving accountability, effectiveness, and efficiency are having an impact on physician-hospital relationships, as are changes aimed specifically at adjusting the local culture within institutions. The potential effect of physicians' changing preferences within this evolving system is also significant.
It is unlikely there is one perfect model or approach that may be universally applicable across 13 provincial or territorial jurisdictions, let alone in the dozens of local health authorities and regions. However, with its pan-Canadian perspective, the CMPA has identified a number of medico-legal implications that arise from these changes. If not effectively addressed, these implications could lead to difficulties for physicians, institutions, and patients. The Association believes the medico-legal implications of such changes should be addressed as a priority and we have identified a number of recommendations that are achievable.
An evolving landscape
One of the strengths of the Canadian healthcare system is its capability to adjust to local conditions at the provincial, territorial, or regional level.
While lessons can be learned from local successes, applying these concepts to a broader audience can be risky. The "one-size-fits-all" concept does not reflect the realities of Canadian healthcare. However, in many parts of the country, the CMPA is witnessing the following trends:
- Provincial and territorial governments are seeking to strengthen and clarify the accountabilities associated with the delivery of care.
- Accountabilities are also being enhanced at the hospital level. While Ontario's recently enacted Excellent Care for All Act may be the most prominent effort, similar initiatives have been completed or are underway in many jurisdictions.
- Roles and responsibilities within hospitals increasingly reflect the migration towards delivery models based on inter-professional teams that draw on and value the contributions of a range of healthcare providers.
- A growing reliance on inter-professional teams and collaborative care is occurring at the same time that the scope of practice of many healthcare providers is being expanded.
- All elements of the healthcare system are under increasing scrutiny. This is generally a welcome trend that needs to be properly managed, so as to avoid negative consequences on individuals and on institutions' culture.
- While many physicians and hospitals remain comfortable with the traditional privileges model, there is an increasing prevalence for more formal contractual or employment arrangements.
Changing roles and responsibilities
Longstanding governance models have recognized the unique perspective and expertise that physicians provide and the importance of engaging physicians in decision-making.
While this system has served Canadians well, the CMPA has recently witnessed efforts to reduce the role of physicians in healthcare decision-making. In certain jurisdictions, physicians have expressed concerns that legislative, regulatory, and local bylaw adjustments have marginalized their role and contributions. Such situations are unfortunate and may ultimately affect the quality of care.
Within the hospital setting, recognition of physicians' important role in decision-making is best evidenced by the existence of medical advisory committees and through the mandated requirement to include physicians on the hospital governance body. This requirement is fundamental to the independence and maintenance of the self-regulated nature of the medical profession, including the sole authority for the credentialing and discipline of physicians. However, this standard is under threat by those who may not fully understand or recognize the value provided by the current approach.
Health authorities and hospitals should be encouraging physicians to actively engage in decision-making and, where obstacles to such engagement exist, be working to remove those barriers. To facilitate the active participation of physicians in organizational decision-making, institutions should review their governing documents (such as bylaws) with a view to facilitating physician engagement.
Six areas of concern
In examining the medico-legal implications of the changing relationships between physicians and the hospitals in which they deliver care, the CMPA has identified 6 broad areas of concern. While these considerations can be viewed separately, they are related and, in some cases, have compounding implications. Although they may not be present in every circumstance, these 6 inter-related issues warrant serious attention:
- physicians as advocates for patients
- appropriate reporting of physicians
- balanced response to adverse events, including the reporting of those events to the public
- collection, use, and safeguarding of physicians' information, including personal health information
- arrangements that govern a physician's ability to deliver care within a healthcare authority or hospital, including both privileges and employment models
- approach through which physicians receive medical liability protection
The CMPA has been actively engaging key healthcare stakeholders and decision makers to advance recommendations on this important issue. In its recently released policy paper, Changing physician-hospital relationships: Managing the medico-legal implications of change, the CMPA sets out key recommendations for physicians, health authorities and hospitals, hospital insurers, medical regulatory authorities, and governments. These recommendations are built on the principles of fairness and balance, recognizing that, while potentially disconcerting for some, these ongoing changes can further strengthen the healthcare system, if properly managed.
Some of the recommendations for physicians are:
- Remain engaged in healthcare decision-making, including decisions at the health authority and hospital level, by seeking formal and informal leadership roles that advance the provision of quality care.
- Understand and adhere to health authority and hospital procedures for reporting, recognizing that appropriate thresholds support safer care.
- Actively participate in efforts to resolve conflicts at the local level and, to the extent feasible, avoiding unnecessary escalation.
- Continue to appropriately advocate for the interests of patients, while being cognizant that inappropriate or overzealous advocacy may be disruptive to the provision of care.
- Avoid forming or communicating hasty or partially informed opinions about the performance of colleagues or other care providers involved in an adverse event.
- Understand the differences between quality improvement (QI) and accountability reviews and actively participate in appropriately constituted QI reviews.
- Disclose personal and personal health information to Colleges in circumstances where it is required by law, or when the physician consents to the disclosure because it is necessary to protect patient safety.
- Carefully consider the protections specified in any agreement before entering into it, including protection related to procedural fairness and natural justice.
- Understand the different advantages, disadvantages, and protections offered by employment or contractual arrangements and by a privileges-based system. Consider the possible merits and shortfalls of an appointments model similar to that currently being implemented in a number of Canadian jurisdictions.
- Be aware of areas of medico-legal risk in contracts, such as indemnification clauses. Review the CMPA's document entitled General Information on Individual Contracts and seek legal advice from one's own legal counsel, as required.
- Recognize the limitations of an enterprise liability protection model and its potentially negative consequences on the professional independence and integrity of physicians.
Given the dynamic environment facing all healthcare professionals, physicians are left with two primary choices: one is to respond to the changes after they have occurred; the other is to seize opportunities to advance the long-term effectiveness of the healthcare system. In the face of what unfortunately appears to be a diminishing role for physicians in healthcare decision-making, physicians must individually and collectively decide the role the medical profession should and will play in the healthcare system. Canadians have benefited greatly from physicians exercising a responsible, collaborative leadership role — one that respects the expertise of others but brings an important and unique perspective to decision-making.
The CMPA believes it is in the best interests of Canadians for the medical profession to be actively engaged in helping to shape the future of healthcare. This engagement requires physicians to be appropriately empowered to contribute to decisions. Establishing positive, mutually beneficial relationships between physicians and health authorities and hospitals is a vital step if the healthcare system is to provide the care and services Canadians expect.