Scarcity of resources and delays in care

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Updated: November 17, 2022

There is no perfect solution to address resource dilemmas, but you can take steps to reduce patient harm and minimize medico-legal risk.

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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.


Do I have a duty to provide in-person medical care during the COVID-19 crisis?

Physicians will need to exercise their clinical judgement to determine whether it is reasonable to see patients in-person. Physicians will want to continue to follow guidance issued from their Colleges, hospitals, ministries of health, public health officials and medical specialty organizations regarding the necessary safety precautions for providing care in person. While virtual care may be appropriate in some cases, physicians will want to be mindful of its limitations and ensure patients are provided the opportunity for in-person care where appropriate.

Physicians may face criticism for relying solely on virtual care, unless there are legitimate reasons to do so (e.g. the physician is ill or must self-isolate for a brief period of time). Where physicians must temporarily close their practices, College policies generally suggest that physicians should attempt to make alternative arrangements for care of their patients. Physicians are encouraged to coordinate with colleagues to provide coverage in care where needed.


As a result of the pandemic, resources are scarce. How do I balance my patients’ needs with the scarcity of resources?

The few legal cases touching on these issues signal that the courts are willing to consider the resources available to physicians when assessing whether the standard of care was met. A court in Ontario, for example, has indicated that "…a doctor cannot reasonably be expected to provide care which is unavailable or impracticable due to the scarcity of resources.”

A physician is expected, within resource constraints, to do the best they can for patients, and to act reasonably in such circumstances. 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 a role to play in health advocacy and are an important voice in an environment of scarce resources. Physicians should document any steps taken to address resource issues.

Emergency directives from government and public health authorities may also be issued regarding the systematic use of resources.