Physician obligations and rights

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: January 19, 2022

Understanding your professional obligations and rights in the context of COVID-19 helps to focus on providing quality care and reduces your medico-legal risk.

FAQ


I have heard Bill C-3 will enhance protections for healthcare workers and patients accessing healthcare services. How can this legislation help protect me, my patients and my colleagues in the context of the COVID-19 pandemic?

Bill C-3 amends the Criminal Code to create a new intimidation offence to prohibit conduct intended to provoke fear, to interfere with the duties of a health care worker, or to impede a person from receiving health care services. The Bill also makes it an offence to intentionally obstruct or interfere with another person’s access to a place at which health services are provided. Bill C-3 does not, however, prohibit individuals from peacefully protesting, even if this activity has a minor impact on the ability of others to access the facility.

Given the novelty of Bill C-3, it is uncertain how it will ultimately be applied and enforced. In the context of the pandemic, the provisions of Bill C-3 could apply to persons demonstrating outside a health facility and purposefully obstructing a healthcare worker or patient from accessing the facility, such as protests outside hospitals held by people opposed to vaccination and other public health measures related to the pandemic. It could also apply to patients trying to intimidate healthcare providers with respect to the implementation of public health measures. Additionally, it could apply where patients are trying to access other health services (e.g. abortion).

Members concerned about their safety for any reason (including intimidating or threatening conduct) in any setting are encouraged to contact police. Members working in a hospital or other facility who are concerned about intimidating or threatening conduct may also wish to consult with their hospital or health facility to inquire whether a policy or procedure has been implemented with respect to the enforcement of Bill C-3. Where it is necessary to make a report to police about a patient, members should minimize the disclosure of personal health information to only the information that is required to make the report.

Members who feel their safety is threatened are also encouraged to contact the CMPA for case-specific advice. Where appropriate, the CMPA will assist members to ensure steps are taken to minimize the risk of harm caused by intimidating and threatening behaviour that creates significant concern for personal safety.


Can I be exempted from the hospital/health authority/clinic requiring me to disclose my travel history/travel plans, undergo COVID-19 testing, be vaccinated 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 policy decisions of hospitals, health authorities or clinics. However, institutions generally have a right 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/health authority/clinic 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.



Can I be exempted from the requirement to self-isolate if I recently returned from out-of-country travel?

If you qualify for the federal government’s fully vaccinated traveller exemption, you may be exempt from self-isolating for 14 days upon entry and the day-8 testing requirement. Unless you qualify for the fully vaccinated traveller exemption, you must not directly care for persons 65 years of age or older within the 14-day period that begins on the day on which you entered Canada and you are not exempt from self-isolating when you re-enter Canada. Physicians are encouraged to monitor and comply with federal government travel requirements, public health directives in their particular province or territory, as wel l as guidance from their College and hospital.



What are my obligations if I become aware that I have been exposed to a COVID-19 positive individual?

Physicians should take appropriate steps if they suspect they may have been exposed to or are infected with COVID-19. This includes following all applicable public health recommendations and notifying appropriate third-parties such as public health and their institution. Before returning to practice, physicians are encouraged to monitor and comply with all relevant public health directives, as well as guidance from their College and hospital.

A physician may be found to have breached his/her duty of care to patients for continuing to provide medical services and prevent transmission of the virus where the physician suspects he or she has COVID-19 or has been diagnosed with COVID-19 and patients are subsequently infected. These circumstances may lead to a legal claim, hospital complaint, or College proceedings.

If a physician is required to self-isolate due to unprotected exposure or a positive screening test, the Colleges generally expect physicians to take reasonable steps to ensure patients still receive appropriate care. These steps might include relying on virtual care where possible, coordinating with colleagues to help provide coverage (virtually or in-person), re-directing patients appropriately, and supporting patients as much as possible to access care the physician is not able to provide.



As a result of the pandemic, innovative ways are being developed to administer the influenza vaccine (e.g. drive-thru, parking lot or mobile clinics). What are my obligations for delivering care in these non-traditional settings?

The professional obligations and legal principles that usually apply to 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. Physicians should therefore be aware of clinical guidance regarding the administration of the influenza vaccine – including in non-traditional settings – available from their local public health office or the Public Health Agency of Canada. 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.

Regardless of the setting in which the vaccination is administered, physicians will need to consider how patients will be properly monitored for the recommended observation period following immunization. A physician would be at risk of liability if a patient is permitted to leave prior to the recommended observation period and suffers an adverse event after the vaccination.

If the delivery of the vaccine is being provided in a public space (e.g. parking lot), it would be prudent to implement measures to assist in creating some degree of privacy, such as erecting portable curtains or screens behind which the vaccine can be administered to patients.

Physicians who are contemplating delegating the administration of the influenza vaccine to other health care professionals should consult with their College to determine if delegation is appropriate in the circumstances. Where delegation is permitted, physicians can minimize their risk of liability by only delegating medical acts where it is appropriate to do so and by ensuring the person to whom the act is delegated is competent and has the necessary information to carry out the delegated act.

As always, the details of the informed consent discussion and the patient’s (or legal guardian’s) consent to the vaccine, including the fact that it was delivered in a non-traditional setting, should be documented in the patient’s medical record.



I have been asked to complete requisitions for COVID-19 testing for staff of the long-term care home, clinic or healthcare facility in which I work. What are my obligations towards these staff members if I complete these requisitions?

Whenever a physician orders a test for an individual, the physician will be generally considered to have entered into a doctor-patient relationship. Once a doctor-patient relationship is established, a duty of care arises. Accordingly, a physician agreeing to order COVID-19 testing for staff will need to be in a position to fulfill the obligations flowing from this duty. Physicians should not be agreeable to having their names included on requisitions if they cannot fulfil these obligations.

Specifically, physicians who complete requisitions would be responsible for reviewing the test results and following up with the patient/staff member. Physicians will also need to create a medical record and document the fact that the test was ordered, the results of the test and the recommended follow-up.

Physicians who have been asked to order COVID-19 tests for staff will want to work with the administration at their facility to determine the best way to communicate test results, ensure appropriate follow-up and properly document these encounters.



Do I have a duty to report patients who are acting in contravention of public health requirements or using falsified public health records (e.g. vaccine passports)?

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 may also include 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 for COVID-19 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 public health reporting obligations in their jurisdiction.

In addition to any potential legal requirements, physicians may also have an ethical duty to report a patient to the relevant public health agency where a patient is in breach of public health requirements (e.g. refusing to self-isolate) or an unvaccinated patient is using a falsified or fake vaccine passport and putting others at risk by doing so. However, there is no general duty for physicians to report patients suspected of having committed a crime to police, which includes vaccine passport fraud. Physicians should generally refrain from sharing patient information with the police unless there is patient consent or the disclosure is required by law (e.g. warrant) or to address a risk of harm.



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 they have been exposed to COVID-19.

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 in every case to assess patients in person who are exhibiting symptoms of COVID-19 or have been exposed to COVID-19, they would 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.

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.