Canadian physicians practise within a variety of settings and service delivery models. While some physicians work at hospitals within a traditional privileges-based model, others work at hospitals, clinics, or other settings in an employment or contractual arrangement.
It is important to understand that different practice arrangements offer different levels of procedural protection around critical issues such as discipline, the termination of the working relationship, and expectations around service delivery.
Generally speaking, a traditional privileges-based model at a hospital offers physicians the highest level of procedural protection. Contract-based models in hospitals and other settings do not necessarily offer the same level of protection unless the contract has been specifically drafted to do so.
Different practice arrangements, different levels of procedural protection
Hospital privileges-based model
Traditionally, when physicians delivered care in hospitals, they normally did so under a privileges-based model that granted them rights to perform specific acts and access to certain services and facilities. This model recognized the independent nature of the doctor.
Privileges-based models are governed by a framework set out in provincial or territorial legislation and regulations that requires specified procedures be adopted for renewing, restricting, and terminating privileges. These procedures are normally contained in regional health authority or hospital bylaws.
This model is also supported by case law that clarifies the processes that should be in place to protect a physician's rights when a hospital seeks to restrict, revoke, or not renew the physician's privileges. For example, all provinces and territories have statutory appeal processes for physicians who are denied or lose their privileges.
More recently, a staff appointment model has developed whereby physicians are appointed to the medical/practitioner staff at the health authority or hospital level. The appointment model includes many protections for physicians found within the privileges model.
While privileges and appointment models have been successful and continue to be used across Canada, many physicians and hospitals arrange for the delivery of medical services pursuant to contractual arrangements or a combination of models and payment structures. As such, many physicians practice under some form of contractual arrangement. There are a variety of such arrangements, including employment contracts (similar to those for other professional staff such as nurses) and service agreements (in which the doctor provides medical services as an independent contractor). It is important that physicians carefully assess the rights and obligations under such contracts before signing.
Employment contracts and service agreements in hospitals and other settings
Outside of the traditional privileges-based model, physicians in hospitals and other healthcare settings may work under arrangements such as employment contracts or alternate service agreements. In some cases, physicians choose these contracts. In other cases, the contracts are proposed by the hospital or health authority and physicians do not have a choice.
Generally, employment contracts and service agreements do not offer the same procedural safeguards as the privileges-based model. Specifically, the procedural protections guaranteed by hospital by-laws and confirmed by the courts governing the termination or suspension of privileges within the privileges-based model often do not apply to contracts and agreements.
With a contractual or service agreement, the terms of the contract govern any disputes that might arise between a physician and the healthcare organization. This means that — unless procedural safeguards have been written into the contract — a physician facing termination will have significantly fewer protections under a contract or service agreement. For example, most contracts will allow the hospital to terminate a contract at any time and without cause so long as it provides sufficient notice.
For this reason, physicians entering into employment contracts and service agreements should be very clear on the terms of the contract that relate to their job description, call schedule, permitted outside activities, discipline, and contract termination. The contract should address the circumstances under which a physician can end the employment or contractual relationship, the contract renewal or renegotiation process, and the consequences of terminating the relationship (e.g. access to hospital records following termination). Terms relating to the job description should describe the specific type of care to be provided (e.g. internal medicine vs. gastroenterology) and specific patient care hours. Clauses on activities such as moonlighting, volunteer clinical work, and research should also be included.
Contractual arrangements can pose additional medico-legal risks for doctors that should be considered before such arrangements are finalized. For example, physicians should generally avoid indemnification clauses in their contracts that could lead them to be held legally responsible for the actions of the other party in the contract.
CMPA assistance with individual contracts
The following principles apply to CMPA’s assistance with contracts in hospitals and other settings:
- Assistance with contractual disputes: CMPA will generally not assist physicians in contractual disputes unless their professional medical work is called into question, or their ability to practise medicine is in jeopardy. In these disputes, CMPA's assistance will be limited to aspects of the dispute that concern medical care.
- Assistance with contract negotiations: CMPA generally does not provide advice to members who are considering signing contracts. Physicians are encouraged to contact their own personal lawyer and, if relevant, their medical association or federation for assistance with contracts. The CMPA’s document Medical-legal issues to consider with individual contracts provides information that might be of assistance to members and their lawyers when reviewing individual contracts.
Be sure before you sign
Once you sign a contract, it becomes difficult to break the terms you have agreed to. It can also be difficult to add new terms once the contract is in effect.
For this reason, it is essential that you understand the terms you are agreeing to before you sign a contract. You should never agree to a term you do not understand.
CMPA strongly recommends consulting with your personal lawyer before you sign any contract.
The bottom line
If you are considering signing an employment contract or service agreement, it’s important to look carefully at the details of the contract and to be aware of the implications of various terms. Members are strongly encouraged to consult with a personal lawyer.
More information is available from the following CMPA resources:
