Medico-legal risks, scope of work and CMPA assistance

Contact us

Contact the CMPA and schedule time to speak to a physician advisor

Call us at 1-800-267-6522 (in Ottawa area:
613-725-2000)

Updated: November 17, 2022

During the COVID-19 pandemic, Canadian physicians are caring for patients despite great uncertainty, resource limitations, and personal risk. Many physicians are also practising outside of their usual scope of work or location. The CMPA will continue to support you, our members, at this difficult time.

Articles and updates

Microlearning activity

FAQ


Due to the significant shortage of health care workers and overcapacity in some hospital departments, I have been asked to provide care outside my usual scope (e.g. non-physician or physician duties). What are the medico-legal risks and will the CMPA assist me if I perform duties outside my usual scope?

The CMPA recognizes the immense strain on the health care system due to the ongoing pandemic and recent surges in other infectious diseases. Physicians are being called upon to take on new roles to support their colleagues and the larger system in responding to the health emergency. It is challenging to predict all the types of medico-legal difficulty that physicians may face arising from the provision of care in relation to surges in COVID-19 and other infectious diseases given the unique context. It is expected that a court would likely take into account the exceptional circumstances under which a physician was rendering care when making a determination as to liability. Regardless of the unique circumstances, physicians would still be expected to attempt to do the best they can for their patients and to act reasonably in those difficult circumstances. Physicians are encouraged to be aware of relevant College policies and standards as it relates to scope of practice.

Physicians asked to perform duties outside their usual scope – whether medical duties or non-physician duties – will want to ensure they have the necessary skills to perform the requested duties or obtain the appropriate support or training to do so. Physicians who do not feel they are sufficiently qualified or competent to perform the requested duties can try to seek guidance from another health professional who is competent and/or has the requisite information to perform these duties or even redirect care where that is possible. Role clarity is also important where physicians are performing non-physician duties. It is expected that hospitals and health authorities will provide guidance for the health care team to delineate the expectations for performing non-physician duties or those outside a physician’s usual scope of practice, and how this will work operationally.

The Colleges generally recognize that in exceptional circumstances, such as a public health emergency, it may be necessary for physicians to temporarily practise outside their scope of practice. It will therefore be important for physicians to carefully document the circumstances that led to providing care outside their scope of practice or performing non-physician duties. Keeping such records will be helpful to demonstrate the clinical judgment exercised in the circumstances of scarce resources, should there be any medico-legal difficulties that arise at a later time.

Members who are called upon during the pandemic to provide care not typically falling within their normal scope of practice or the usual scope of practice of medicine remain eligible for CMPA assistance. Members who have specific questions about their eligibility for assistance are encouraged to discuss their concerns with the CMPA before providing care.


Because the pandemic is creating significant healthcare human resource shortages, many patients do not have primary care providers. As a hospitalist/specialist, what are my obligations when providing care to patients in these circumstances?

Generally speaking, once a patient has been assigned to a physician for treatment, a duty of care arises. The duty of care includes the obligation to act in the patient's best interest, refer the patient in appropriate cases to another physician, to order and follow-up on any necessary tests and to attend to the patient as long as good medical practice requires.

Where a hospitalist/specialist is aware that a patient does not have access to a primary care provider, they may have certain responsibilities to make reasonable efforts to ensure that the patient has access to any necessary follow-up care or further referral. 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.  The duty of care also generally requires the hospitalist/specialist to inform patients prior to discharge about symptoms and signs that suggest the need to seek immediate medical assistance. These discussions should be documented in the patient’s medical record.

Hospitalists/specialists should also make reasonable efforts in the circumstances to discuss with the patient any available options for alternative primary care. This may include advising the patient of providers or clinics in the community accepting new patients, or referring the patient to matching programs through the ministry of health.

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 an important voice in an environment of scarce resources.


CMPA assistance is generally available for medico-legal matters arising from a member’s medical-professional work. Members who conduct a proper clinical assessment and provide a medical exemption from the COVID-19 vaccination in an established doctor-patient relationship will generally be eligible for CMPA assistance with related medico-legal difficulties. Members who provide COVID-19 vaccine exemptions without doing proper clinical assessments and outside of an established doctor-patient relationship may not be eligible for CMPA assistance and will need to retain their own private counsel to assist them with any associated medico-legal matters. Members may also find themselves personally liable for damages in a related legal action.


The CMPA will continue to provide members with liability protection for medico-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts.


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 medico-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.

Members who have specific questions about their eligibility for assistance are encouraged to discuss their concerns with the CMPA before providing care.


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.


Will the CMPA assist me with College or hospital matters arising from my refusal to be vaccinated?

The CMPA generally assists members with College and hospital matters relating to the professional practice of medicine; however, CMPA assistance will not generally be available for matters primarily arising from business or personal issues. The CMPA does not generally extend assistance to members to assist them in advocating for changes to government, hospital or College policies.


Will the CMPA assist me with medico-legal difficulties related to the administration of COVID-19 vaccines?

The CMPA remains committed to providing members with liability protection for medico-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts, including related to the administration of vaccines.

Physicians who are involved in developing medical directives are also generally eligible for CMPA assistance if they face medico-legal difficulties as a result of the medical content of the medical directive. Examples include the patient selection exclusion criteria or informed consent process. The CMPA will not generally extend assistance with respect to administrative or logistical issues associated with the vaccination process, such as decisions about prioritization of individuals eligible to receive vaccines. Physicians who are involved in these issues should ensure that the organization that they are being asked to serve will provide them with full defence and full indemnification in the event of medico-legal difficulties that arise from this role.


Will the CMPA assist me with medico-legal difficulties related to the administration of COVID-19 vaccines to non-residents?

CMPA members will be eligible for CMPA assistance when administering vaccines in Canada, without regard to whether an individual is a resident or non-resident of Canada. The CMPA’s assistance will include support for matters brought inside or outside of Canada in relation to the administration of COVID-19 vaccines. The CMPA remains committed to providing members with liability protection for medico-legal difficulties arising as a result of care provided in Canada in the context of the COVID-19 efforts, including related to the administration of vaccines.

While the CMPA does not generally provide assistance to members for matters arising outside of Canada, the CMPA appreciates the unique circumstances of the pandemic and the public health objective of broad vaccination. In the context of COVID-19 vaccine administration only, CMPA members do not need to ask non-residents to execute the Governing Law and Jurisdiction Agreement or confirm that the vaccine is not reasonably available in the patient’s home country in order to be eligible for CMPA assistance.


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 medico-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.

Assistance scenarios:

  1. 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 medico-legal problem or legal action is initiated in Canada, the member is generally eligible for CMPA assistance.
  2. 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. The CMPA will consider providing assistance with a medico-legal problem or legal action in Canada, arising from urgent follow-up care to the existing patient.
  3. 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 medico-legal problem or legal action was initiated in Canada or elsewhere.
  4. Member residing outside Canada. Members who are located outside of Canada on a more permanent basis are at greater risk of being sued in that foreign jurisdiction. Where a member is residing outside of Canada on a long-term basis and providing telehealth to patients in Canada, the member will not generally be eligible for assistance regardless of whether the medico-legal problem or 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 medico-legal problem or 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.

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. While CMPA assistance is always discretionary, the CMPA generally considers a member to be “temporarily outside Canada” when they are away without the intention to be engaged in clinical care and where they are away for days or a few weeks (less than 30 days).


When practising telehealth, when is a member considered to be “temporarily outside of Canada”?

The CMPA’s Principles of Assistance for Practising Telehealth contemplate that when patients or physicians, or both, are temporarily outside of Canada, issues concerning continuity of care and physician obligations may arise. An example of such a scenario would be a physician who, while briefly overseas for a conference or holiday, is asked to deal with urgent follow-up care related to an existing patient in Canada regarding a condition for which the physician was already involved. In these circumstances, members are generally eligible for CMPA assistance, provided the medico-legal problem or legal action is initiated in Canada. Members are reminded that the CMPA does not generally provide assistance to members with medical-legal matters arising outside of Canada.

The Principles of Assistance for Practising Telehealth were not drafted to deal with circumstances where members live permanently or move to another jurisdiction for an extended period. Members who are located outside of Canada on a more permanent basis are at greater risk of being sued in that foreign jurisdiction. Where a member is residing outside of Canada on a long term basis and providing telehealth to patients in Canada, the member will not generally be eligible for assistance regardless of whether the medico-legal problem or legal action was initiated in Canada or elsewhere. While CMPA assistance is always discretionary, the CMPA generally considers a member to be “temporarily outside Canada” when they are away without the intention to be engaged in clinical care and where they are away for days or a few weeks (less than 30 days). Members who are located outside of Canada during the extenuating circumstances of the pandemic are encouraged to contact the CMPA to discuss their eligibility for assistance.

Whenever members are providing care from outside of Canada, they should ensure they have addressed any potential licensure issues with the regulator in the jurisdiction in which they are residing.


What are the CMPA’s general principles with respect to assisting members engaged in health advocacy?

Assistance will generally be available for matters arising from health advocacy relating to the professional practice of medicine, recognizing that assistance will not generally be available for matters arising primarily from personal or business issues.1 Where a member is engaged in health advocacy directed at a non-medical audience, they will generally be eligible for assistance in Canada regardless of the forum or medium chosen (e.g. virtual, live, or through various media, including social media). Members engaging in health advocacy directed at a medical audience will generally be eligible for assistance in or outside Canada regardless of the forum or medium chosen. Assistance is also generally available whether or not the member received a financial benefit for participating in the health advocacy activity. However, where a medico-legal difficulty is related to the promotion of a particular product or service, the member will not generally be eligible for CMPA assistance.


1. Matters primarily arising from business and personal issues include allegations arising from statements made in the role of spokesperson for an organization, personal attacks and matters of a marital or familial nature.