Virtual clinics are increasingly popular. They allow patients to connect remotely with a healthcare provider through text, video chat, or telephone. Like walk-in clinics, the medical services typically provided in a virtual clinic are episodic and include consultations, requesting investigations, referrals, and prescriptions. Depending on the service, the patient and healthcare providers could potentially be located anywhere in the world.
If you are thinking about providing medical services through virtual platforms, you should consider the medico-legal issues that can emerge.
College requirements
You should be aware of the standards and guidelines of your medical regulatory authority (College), especially with respect to the areas of virtual clinics, telemedicine, and online prescribing.
Some College policies or standards may limit or prevent physicians’ involvement in virtual clinics. For example, the College of Physicians and Surgeons of Manitoba Standard on Virtual Medicine states that virtual medicine-based businesses not offering timely in-person appointments with the same physician does not meet the standard.
The Colleges that do not expressly discourage physicians from providing care through virtual clinics generally encourage physicians to use professional judgment and consider the standard of care when deciding whether to deliver medical services to a specific patient using virtual care. In the case of virtual clinics, this means you should consider whether the patient’s medical history, including information about medications and allergies, is accessible. You should also consider whether an adequate assessment can be performed using telemedicine, and whether appropriate medication monitoring and follow-up care can be provided or arranged.
Licensing considerations
Some virtual clinics limit services to patients within the same province or territory as the physician. Others, however, permit interactions across national and international borders, including with Canadians located outside of Canada and non-Canadians in Canada.
Before interacting in a virtual clinic with patients in a different jurisdiction, you should consider whether you meet the applicable licensing requirements. These requirements vary across the provinces and territories. In some cases, it may be necessary for you to be licensed in the jurisdiction in which you are located and in the jurisdiction where the patient is located. Other Colleges require special registration, or may place conditions on the provision of such services, or both.
Medical records
It is essential that records are made and maintained for any patient encounter through virtual clinics. In addition to containing information about a patient's medical history and clinical interactions vital to continuity of care, medical records are legal documents that serve as evidence of the care provided.
It is also important for physicians to have continued access to the medical records after the clinical encounter, especially if the patient initiates a claim or complaint. You should clarify with the owner or operator of the virtual clinic who is the custodian of the medical records for patients seen through the clinic. These issues should ideally be addressed in the contract between you and the owner or operator.
Privacy and information security
As it is physicians' ethical and legal obligation to protect patients’ personal health information, you should be satisfied that security protocols are in place to adequately protect patient information transmitted electronically, including video chat software, text messaging, or both. Each has unique privacy challenges that must be considered and addressed.
When providing virtual care services across provinces or territories, you should also consider the privacy legislation in your home jurisdiction and in the jurisdiction where the patient is located. As well, you should consider what the Colleges in those jurisdictions expect for safeguarding the privacy and confidentiality of patient information. Many privacy commissioners have also issued guidelines relevant to these encounters.
Consent
This method of delivering care, through a virtual clinic, can present some unique challenges in obtaining informed consent. Some Colleges impose or recommend additional consent requirements when using telemedicine. These can include informing patients where physicians are located, what the status of their licence is, and how they will manage the privacy of the patient’s personal health information 1. Other Colleges expect physicians to explain the limitations of the telemedicine services and any extra risks arising from those services 2. Some require a process to verify the identity of the patient, the physician, or both 3.
You should note all consent discussions in the medical record, including any steps you took to comply with specific regulatory requirements. In addition, it may be prudent for you to speak with the owner or operator of the virtual clinic about having all patients read and accept standard terms and conditions. CMPA has published a template form you can consider using when confirming consent for electronic communications with patients. (Consent to use electronic communications can be found in the Risk Management Toolbox.)
Eligibility for CMPA assistance
CMPA will generally assist members if medico-legal difficulties arise in Canada from professional work done in Canada. The CMPA is not structured to assist with medico-legal problems and legal actions that arise outside of Canada or that result from care given outside of Canada. Where the patient and the member are in Canada at the time of the encounter, and a medico-legal problem or legal action is initiated in Canada, the member will be generally eligible for CMPA assistance.
However, members are not generally eligible for CMPA assistance for matters that result from care provided to patients located outside of Canada on a more permanent basis. If a patient is outside of Canada temporarily (e.g. on vacation, temporary employment, or students pursuing studies abroad), members would generally be eligible for assistance related to a condition the physician is already managing, as long as the medico-legal problem or legal action is initiated in Canada. However, if the matter is brought outside of Canada, CMPA will generally decline to extend assistance.
Members are also not generally eligible for CMPA assistance if they reside outside of Canada on a long-term basis and provide virtual care to patients in Canada or elsewhere. If a member is temporarily outside of Canada for a purpose other than providing care (e.g. on vacation, at a conference), the member would generally be eligible for assistance arising from providing any urgent follow-up care to an existing patient, as long as the medico-legal problem or legal action is initiated in Canada.
For more detailed information, visit the following CMPA principles of assistance pages:
The bottom line
If you are thinking about providing medical services through a virtual care clinic, you will need to consider the medico-legal issues that can emerge. Keep in mind the following, amongst other things:
- Consider whether you meet any special licensing requirements that may apply.
- Be aware of other standards and guidelines concerning virtual care, including privacy and security, consent, and online prescribing.
- Confirm with the owner or operator of the virtual clinic who is the custodian of the medical records and ensure you’ll have access to these records if needed later.
Members wanting more information on working with virtual clinics can contact CMPA.
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