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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.
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 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.
Need more medico-legal information amid COVID-19? Visit the CMPA COVID-19 Hub