Medico-legal risks, scope of work and CMPA assistance

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Updated: January 18, 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.

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FAQ


Due to the significant shortage of health care workers, I have been asked to perform non-physician tasks (e.g. nursing duties). What are the medico-legal risks and will the CMPA assist me if I perform these non-physician duties?

The CMPA recognizes the immense strain on the health care system due to the ongoing pandemic. 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 of the types of medico-legal difficulty that physicians may face arising from the provision of care in relation to COVID-19 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 performing non-physician duties will want to ensure they have the necessary skills to perform the requested duties or obtain the appropriate training to do so. 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 and how this will work operationally.

Members who are called upon during the pandemic to provide care not typically falling within 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.


Am I eligible for CMPA assistance with medico-legal matters arising from writing a medical exemption from the COVID-19 vaccination?

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.


Will the CMPA assist me with potential medico-legal difficulties that may arise from care I provide during this pandemic?

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.


Are there any steps I should take during this pandemic to mitigate medico-legal risk?

As always, members should document their rationale for decisions under crisis situations to assist in the event of medico-legal difficulties.


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 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.

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.


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.


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

The CMPA generally assists members with College 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’s assistance for hospital matters is generally limited to ensuring that the member is treated fairly when there is a loss or threat of loss of privileges. 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 rollout 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 deployment 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.