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Personal protective equipment (PPE) is essential for reducing risks to healthcare providers, patients and their families, though insufficient supplies continue to be a challenge.
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 medico-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.
Need more medico-legal information amid COVID-19? Visit the CMPA COVID-19 Hub