Here you will find the latest information, advice and support related to medical-legal protection during the COVID-19 pandemic.
We are monitoring your questions daily and we are updating and adding to the Hub as regularly as possible to respond to your concerns. We will aim to provide clarity during this uncertain time. Moving forward, we will continue to work on the answers you are seeking.
CMPA assistance and medical-legal risks (general)
Will the CMPA assist me with potential medical-legal difficulties that may arise from care I provide during this pandemic?
The CMPA will continue to provide members with liability protection for medical-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts.
Are there any steps I should take during this pandemic to mitigate medical-legal risk?
As always, members should document their rationale for decisions under crisis situations to assist in the event of medical-legal difficulties.
Telehealth and virtual care
Can I use virtual care to offer medical assistance in dying services (MAID)?
As non-urgent medical services are being suspended during the COVID-19 health emergency, many Colleges are encouraging physicians to use virtual care where possible as an alternative to direct patient contact. Since MAID remains a highly regulated procedure governed by the Criminal Code, physicians must continue to ensure compliance with all legal requirements for the provision of MAID.
Physicians will also want to be aware of their College’s policies and standards, hospital/ health authority policies and public health measures that may impact the delivery of MAID services. Some Colleges invite physicians to consider virtual assessments in the context of MAID, suggesting that virtual assessments may be possible in accordance with the College policies. Patients self-administering oral mediations as a means of receiving MAID without a physician present create unique challenges that need to be considered on a case-by-case basis.
A patient’s request for MAID must be witnessed by two individuals. Witnesses participating in a virtual manner may also be an option if careful arrangements are made to ensure compliance with statutory requirements.
As always, physicians should carefully document the MAID process, including what aspects of the process were delivered through virtual care. Given the additional difficulties related to the provision of MAID in the time of COVID-19, members are encouraged to contact CMPA to obtain case-specific medical-legal advice.
Can I use virtual care to complete an application for involuntary psychiatric assessment (e.g. Form 1 in Ontario)?
The mental health statutes across Canada typically provide that a physician who signs an application for an involuntary psychiatric assessment must “examine” or “personally examine” the person who is the subject of the application and make careful inquiry into all of the facts necessary for the physician to form the opinion as to the nature and quality of the mental disorder of the person.
There is no express requirement in the legislation that the physician must be in the same location as the patient when conducting the examination. The terms “examine” and “personally examine” are also not defined terms in the legislation. We are not aware of any court that has commented on whether these terms expressly permit the use of telemedicine to conduct examinations for the purpose of completing an application for an involuntary psychiatric assessment.
In some jurisdictions, larger telemedicine networks have – for several years now – provided physicians with the ability to conduct examinations for the purpose of completing an application for involuntary psychiatric assessments (e.g. Ontario Telemedicine Network). There is commentary from certain healthcare organizations that telemedicine is appropriate for this purpose.
Many Colleges are encouraging physicians to use virtual care as an alternative to interact with patients, including for mental health care. Most provincial governments have introduced temporary billing codes that permit physicians to more flexibly bill for virtual visits, including psychiatric assessments.
It is important to bear in mind that the “personal examination” requirement is a statutory safeguard given the serious deprivation of liberty at stake. It is therefore vital that telemedicine examinations only be conducted if they permit the physician to observe the facts, make the inquiries and form the opinions required to complete an application for involuntary psychiatric assessment.
Can I use virtual care to see patients during the COVID-19 outbreak? If so, what products should I use?
The CMPA supports the appropriate use of virtual care tools that enable physicians to more efficiently and safely provide care to their patients during these extenuating circumstances. Virtual care may be as basic as a telephone call or may involve video conferencing and other internet-based tools.
Many Colleges are encouraging physicians to use virtual care as an alternative to interact with patients, especially those who are exhibiting symptoms of COVID-19 or may be at higher risk if they were to be inadvertently exposed to COVID-19 (e.g. pre-existing medical conditions). Virtual care can be an effective means of providing treatment to patients . Physicians will want to use their professional judgment in assessing their ability to use virtual care, with regard to guidance from Colleges on how to provide care in the current context.
Physicians will want to be mindful of the limitations of virtual care and ensure patients are provided the opportunity for in person care where appropriate and available. It continues to be important to document all virtual care encounters with reference to the technology that was used.
A physician’s duty of confidentiality and privacy obligations continue despite the COVID-19 outbreak. Physicians will want to use best efforts to protect their patients’ privacy in the provision of virtual care. Physicians should obtain consent from their patient to use virtual care. Such consent should be obtained following an informed consent discussion regarding the increased privacy risks associated with electronic communications and documented in the patient chart, even if it is not possible to obtain a signed consent form from the patient. Patients should also be encouraged to take steps to participate in virtual care encounters in a private setting and through the use of their own personal electronic device/computer.
- Virtual care can be an effective alternative means to interact with patients during the COVID-19 crisis.
- The duty of confidentiality and privacy obligations continue despite the COVID-19 outbreak.
- Physicians should obtain consent from their patients to use virtual care.
What is CMPA's approach to assisting members with matters related to telehealth and virtual care?
In accordance with its usual principles of assistance, the CMPA will assist members with matters arising out of virtual care where the medical-legal problem or legal action is initiated in Canada. If members are contemplating providing virtual care to patients outside of Canada, members should contact the CMPA in advance, if time permits, and provide the details of the circumstances under which care will be provided.
- Patient and member in Canada. A telehealth encounter occurs between a patient ordinarily resident in Canada and a CMPA member. The patient and the member are in Canada at the time of the encounter, although they may not necessarily be in the same province/territory. If the medical-legal problem or legal action is initiated in Canada, the member is generally eligible for CMPA assistance.
- Patient and/or member temporarily outside Canada. A telehealth encounter occurs between a patient and a CMPA member, both of whom are ordinarily residents of Canada (and have an established doctor-patient relationship). At the time of the encounter, the patient or the member, or both, are temporarily located outside of Canada. If the medical-legal problem or legal action is initiated in Canada, the member is generally eligible for CMPA assistance.
- Patient residing outside Canada. A telehealth encounter occurs between a patient residing outside of Canada and a CMPA member located either in or outside Canada. In this scenario, the CMPA will generally not assist regardless of whether the legal action was initiated in Canada or elsewhere.
If a patient is outside of Canada temporarily (e.g. on vacation, temporary employment, or students pursuing studies abroad) and phones or emails the physician's office regarding a medical problem related to a condition the physician is managing, the member would generally be eligible for assistance, as long as any legal action is initiated in Canada. Given the potential limitations of such communication, it may be prudent to consider advising the patient to seek local follow-up.
Scarcity of resources
During this pandemic, resources are scarce. How do I balance my patients’ needs with the scarcity of resources?
The few legal cases touching on these issues signal that the courts are willing to consider the resources available to physicians when assessing whether the standard of care was met. A court in Ontario, for example, has indicated that "…a doctor cannot reasonably be expected to provide care which is unavailable or impracticable due to the scarcity of resources.”
A physician is expected, within resource constraints, to do the best he or she can for patients, and to act reasonably in such circumstances. It is also critical for health sector stakeholders to engage on these issues in order to help alleviate and prepare for resource shortages. In this regard, physicians have a role to play in health advocacy and are an important voice in an environment of scarce resources. Physicians should document any steps taken to address resource issues.
Emergency directives from government and public health authorities may also be issued regarding the systematic use of resources.
Do I have a duty to provide usual medical care (e.g. routine screening, elective surgeries) during the COVID-19 crisis?
It is generally considered reasonable to postpone elective and non-essential medical services and in some jurisdictions this is being mandated. Most Colleges understand and support the decision to scale back on the usual services physicians provide to patients if made in a fair and principled manner. Physicians will want to work with colleagues and their hospitals (with guidance from public health and medical specialty organizations) to determine what is considered a non-essential medical service. Physicians will also want to consider whether some of the normal services they provide to patients could reasonably be provided through virtual care.
Physicians may face criticism for shutting down their practices entirely, unless there are legitimate reasons to do so (e.g. the physician is ill or must self-isolate). Where physicians must temporarily close their practices, College policies generally suggest that physicians should attempt to make alternate arrangements for care of their patients. Physicians are encouraged to coordinate with colleagues to provide coverage in care where needed and develop creative solutions to provide care to patients during these trying times.
The level of care consultants can reasonably provide may also be affected in the context of COVID-19. This does not generally mean consultants should avoid providing advice to other physicians or participate in the care of patients. Some Colleges have indicated that consultants should at least provide direction to the referring physician, regardless of whether the consultant is able to see the patient directly. As with community physicians, consultants will want to consider whether they can provide care to patients using virtual care.
Personal protective equipment (PPE)
Do I have an obligation to continue working in a setting where personal protective equipment (PPE) has not been provided or is inadequate (i.e. masks, gowns, gloves, eye protection, etc.)?
Physicians may be permitted in exceptional circumstances to refuse to practice if they reasonably believe that the work environment creates a legitimate unacceptable hazard that is not inherent to their ordinary work. A refusal to work due to inadequate protective gear, could put a physician at risk of a College or hospital complaint, the success of which will depend upon the context of the situation. The CMPA is aware that the Colleges are taking into account the current COVID-19 situation and would assess any College complaint in that context. Hospitals and clinics also generally have an obligation to provide a safe work environment for their staff pursuant to occupational health and safety legislation.
Physicians are encouraged to work with their hospital or clinic in developing appropriate screening, triage, and infection prevention and control policies and procedures to deal with patients presenting with symptoms consistent with COVID-19 or patients who have recently travelled through affected regions.
Do I have an obligation to attend to pronounce and certify the death of a patient at their home or long-term care facility if PPE is not available and it is suspected death may have been caused by COVID-19?
There is no legal requirement that death be pronounced by a physician. Pronouncing a death means issuing an opinion that life has ceased based on a physical assessment of the patient. Often, another person, such as a nurse who was involved in caring for the deceased, could pronounce a patient’s death.
Certifying a death is not the same as pronouncing death. In general, any physician (or a nurse practitioner in some jurisdictions) who was in attendance during the last illness of the deceased person or who has sufficient knowledge of the last illness has a legal obligation to complete the death certificate. Certifying a death is the legal process of attesting to the fact, cause, and manner of someone’s death, in writing, on the form prescribed by the local authority. Several jurisdictions require that the death certificate be completed immediately or without delay, while others require completion within 48 hours of death.
Attending in person may not be necessary in every case if the physician feels that the information available (through the patient’s medical record or otherwise) is sufficient to accurately complete the death certificate. Where the patient’s death is sudden and unexpected or from disease or sickness for which the patient was not treated by a physician, the legislation in each province/territory typically requires the death to be reported to the coroner/medical examiner. The coroner/medical examiner would then be required to complete the death certificate.
Clinics, hospitals and other health care facilities such as long-term care homes generally have an obligation to provide a safe work environment for their staff pursuant to occupational health and safety legislation, which includes providing adequate PPE. Physicians should consult with long-term care homes regarding their policies for attending in person to pronounce a patient’s death and to complete the death certificate in circumstances where there is inadequate PPE.
If it becomes necessary to refuse to attend upon a patient to certify death because adequate PPE is not available, a physician’s best protection to potential disciplinary or civil action is to document the rationale and the steps taken to find an alternative means to certify the patient’s death, including by working with long-term care homes in developing reasonable approaches.
What should I do if I cannot obtain PPE for my private office and/or my staff refuse to work out of fear of infection? Can I close my practice?
Physicians generally have an ethical and professional obligation to be available to provide medical services during pandemics. While a number of public health and regulatory authorities have issued guidance or in some cases directed that non-essential health services be postponed, at least one College has already stated that it is generally unacceptable to completely close your practice, unless there are legitimate reasons to do so.
Clinics/private offices generally have an obligation to provide a safe environment for their patients and staff pursuant to occupational health and safety legislation. In the absence of available PPE, physicians may wish to consider other measures to screen patients prior to arrival. For example, some provincial/territorial health ministries have published guidance recommending, amongst other things, that patients be screened over phone before scheduling appointments; signage be posted on entry to the office and at reception areas for patients with symptoms to self-identify, perform hand hygiene, wear a procedure mask, and have access to tissue and a waste receptacle; and for staff conducting screenings to potentially be behind a barrier (e.g. plexiglass) to protect from droplet/contact spread. The Colleges generally expect physicians to rely on virtual care where possible, and to re-direct patients appropriately and support patients as much as possible to access care the physician is not able to provide.
Documentation of the facts and circumstances of care provided in these circumstances, including the steps taken to attempt to obtain PPE, will be invaluable in the event of medical-legal developments in the future when memories may have faded about working conditions at the time.
As with any resource constraint, physicians are expected to do the best they can for patients and act reasonably in the circumstances. Physicians may need to adapt and be resourceful in this rapidly changing and challenging environment.
Resuming non-essential care
How do I determine which medical services are reasonable to resume and manage my medical-legal risks as the restrictions on non-essential care are lifted?
It is expected that there will be only gradual movement to return to pre-COVID-19 medical services and the backlog of postponed care will be difficult to manage. Physicians will need to determine which medical services should be reintroduced and how care should be prioritized in their practices.
In determining which medical services can be resumed, physicians will want to follow direction from Ministries of Health, Chief Medical Officers of Health and Colleges. These directions may provide guidance with respect to particular services that can be provided, bearing in mind broader public health policy considerations. Application of these directives will also require physicians to use their clinical judgment to prioritize care as restrictions are lifted. The guidance to date suggests that physicians consider a number of factors when deciding whether care should be provided in person, such as:
- the risk to the patient of delaying care even longer;
- the ability to provide a safe environment, including PPE, for patients, physicians and staff;
- the capacity to implement proper screening measures and infection prevention and control practices; and
- the impact on scarce resources.
Physicians should also continue to monitor and assess what medical services can be effectively provided using virtual care and document in the patient record their rationale for providing care in person or virtually.
Physicians will also want to continue working with other health care providers and administrators to appropriately manage scarce resources and wait lists during this period to ensure patient safety and reduce medical-legal risk. Regular communication with colleagues regarding ways to deal with prioritization of care, appropriately advocating for your patients, and consideration of best practices for handling scarce resources can assist in demonstrating physicians acted reasonably in the circumstances.
Scope, location and type of work
Do I need to let the CMPA know if I am practising outside my usual scope of work or location?
During the pandemic, you are not required to inform the CMPA of a change in Type of Work (TOW) or Province of Work (POW) prior to commencing your efforts. However, the CMPA would appreciate hearing from you when it is feasible or if you have any questions.
Physicians are encouraged to consult with the relevant medical regulators (Colleges) to ensure the appropriate licensing approvals are in place related to their province of work and scope of practice.
Will the CMPA assist me, if I am asked to provide care outside my usual role or location? Will the CMPA assist me, if I am no longer or not yet licensed to practice medicine in Canada?
It is challenging to predict all of the types of medical-legal difficulty that CMPA members may face arising from the provision of medical care in relation to COVID-19 given the unique context of the outbreak.
Generally speaking, however, the CMPA would assist a physician who is licensed to practice medicine in Canada and a member of the CMPA at the time the care is provided with a legal matter arising in Canada, even if the matter related to the provision of care in a province/territory outside the member's designated province of work or usual field of practice/type of work category. Unlicensed physicians should contact the CMPA directly to discuss their eligibility for assistance in advance of providing any care.
The CMPA article, Public health emergencies and catastrophic events, provides further information about the CMPA’s scope of assistance in these circumstances. Members who have specific questions about their eligibility for assistance are encouraged to discuss their concerns with the CMPA before providing care.
Physician obligations and rights
Do I have to report patients to Public Health if I know they are not self-isolating in accordance with public health requirements?
All provinces/territories impose mandatory obligations on physicians to report patients with communicable diseases, which generally include COVID-19. The public health legislation in some jurisdictions also includes more general reporting obligations such as where an individual is not following treatment advice related to the communicable disease. For those patients who have tested positive and fail to self-isolate, an argument could be made that they are not following treatment advice. Physicians are encouraged to be familiar with the specific reporting obligations in their jurisdiction.
In addition to these potential legal requirements, physicians may also have an ethical duty to report a patient to the relevant public health agency if there is a reasonable belief that the patient is posing a risk of harm to others by refusing to self-isolate.
Do I have a duty to provide care to a patient suspected of COVID-19 infection?
The professional obligations and legal principles that usually apply to all physicians continue in the context of COVID-19.
Physicians have a legal duty to ensure that everything they do for their patients meets the standard of care of a reasonably competent physician in similar circumstances. Colleges also expect physicians to meet their professional obligations by providing or arranging ongoing care for their patients irrespective of any symptoms consistent with COVID-19 or whether their patients have recently travelled to a region affected by the virus.
A number of Colleges also have policies that set out physicians’ obligations in the context of a public health emergency, which address some more specific obligations such as keeping informed of all pertinent emergency plans and public health communication systems.
While physicians may not be required to assess patients in person who are exhibiting symptoms of COVID-19 or have travelled to an affected region, they would likely be expected to consult with patients over the telephone or through other means of telemedicine to assess whether patients should be re-directed to a properly equipped facility (e.g. public health unit, designated assessment centre, or hospital) for a detailed examination. There are also increasing efforts to facilitate assessment of patients at home with the assistance of public health so as to prevent the spread of the virus.
Where a patient is referred to an assessment centre or another facility, to the extent possible, it is preferable to coordinate the referral with your local public health unit and/or the assessment centre/facility, to provide advance notice and to arrange for, or provide advice to the patient regarding an appropriate method of transportation to the facility (i.e. avoid public transportation).
Do I have the right to refuse to provide care to patients suspected of having COVID-19?
Physicians are expected to provide medical services during public health emergencies. The Colleges may, however, recognize that physicians with health conditions (or family members or others close to them with health conditions) may limit the physician’s ability to provide direct medical care. In these circumstances, physicians will likely still be expected to participate in indirect activities that support the response effort.
Physicians are prohibited from refusing to provide medical treatment based on a prohibited ground of discrimination (e.g. race, age, national or ethnic origin). Discriminating against a patient on grounds related to a patient’s illness or ethnic origin leaves a physician vulnerable to a human rights complaint, a College complaint, and possibly even a civil action. Physicians should also be aware that refusing to conduct a proper assessment and making conclusions about the patient’s medical condition based solely on their ethnicity would generally be considered discrimination.
Can the hospital prevent me from working if I refuse to disclose my travel history/travel plans, undergo COVID-19 testing or adjust/remove religious symbols to ensure proper fitting of protective gear (e.g. shaving facial hair, removing head or face coverings, etc.)?
The CMPA does not typically comment on, or become involved in, public health or hospital policy decisions. However, hospitals generally have a right under the bylaws to restrict physicians from exercising their privileges if they believe the physician’s actions are posing a reasonable risk to patient safety or workplace safety.
Physicians are encouraged to reasonably consider any hospital policy that applies to them, bearing in mind their ethical, professional and legal obligations, including their fiduciary duty to their patients to act in good faith, with loyalty, and not to place his or her own personal interests ahead of patient safety.
Physicians may wish to contact their provincial/territorial medical association for additional guidance and information on these issues.
Do I have an obligation to self-isolate if I recently returned from out-of-country travel?
As of March 16, 2020, the federal government asks that travellers entering Canada self-isolate for 14 days upon entry. In some provinces and territories, the requirement to self-isolate for travellers returning from abroad applies to all individuals, including healthcare workers. In other jurisdictions, there may be an exception from self-isolation for essential workers. Physicians are therefore encouraged to monitor and comply with public health directives in their particular province or territory, as well as guidance from their College and hospital.
Retired physicians and residents
I am a retired physician. Will the CMPA assist me if I return to practice to provide assistance during the pandemic?
Physicians who are no longer members but are seeking membership in order to assist with the pandemic response will be able to do so. Registration with your provincial regulatory college will also be required.
If you previously held membership with the CMPA, you may reactivate your membership now. Your CMPA member number and a valid password are required. Contact the CMPA at 1-800-267-6522 for assistance in reactivating membership.
Re-applications will be prioritized with a target processing time of no more than 2 business days. They will be registered in Type of Work (TOW) 8 (Humanitarian Category) which represents the lowest fee category.
In response to the pandemic, my College is granting temporary emergency registration to some senior residents. I’m taking part. Will I need to change my CMPA type of work or pay an additional fee?
Senior residents granted a temporary independent license as a result of the pandemic are not required to change their CMPA Type of Work (TOW) or notify the CMPA. Residents in this situation will remain in their existing TOWs (12 and 14) and will not be charged additional fees.
Residents should confirm their ability to practice independently with their College prior to doing so, and are encouraged to call the CMPA for any questions related to membership or medical-legal advice.