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Widespread delivery of care via telephone and video is transforming medical practice.
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 an unexpected issue 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. 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.
Can I use virtual care to offer medical assistance in dying services (MAID)?
As non-urgent medical services are being suspended during the COVID-19 health emergency, many Colleges are encouraging physicians to use virtual care where possible as an alternative to direct patient contact. Since MAID remains a highly regulated procedure governed by the Criminal Code, physicians must continue to ensure compliance with all legal requirements for the provision of MAID.
Physicians will also want to be aware of their College’s policies and standards, hospital/ health authority policies and public health measures that may impact the delivery of MAID services. Some Colleges invite physicians to consider virtual assessments in the context of MAID, suggesting that virtual assessments may be possible in accordance with the College policies. Patients self-administering oral medications as a means of receiving MAID without a physician present create unique challenges that need to be considered on a case-by-case basis.
A patient’s request for MAID must be witnessed by two individuals. Witnesses participating in a virtual manner may also be an option if careful arrangements are made to ensure compliance with statutory requirements.
As always, physicians should carefully document the MAID process, including what aspects of the process were delivered through virtual care. Given the additional difficulties related to the provision of MAID in the time of COVID-19, members are encouraged to contact CMPA to obtain case-specific medico-legal advice.
Can I use virtual care to complete an application for involuntary psychiatric assessment (e.g. Form 1 in Ontario)?
The mental health statutes across Canada typically provide that a physician who signs an application for an involuntary psychiatric assessment must “examine” or “personally examine” the person who is the subject of the application and make careful inquiry into all of the facts necessary for the physician to form the opinion as to the nature and quality of the mental disorder of the person.
There is no express requirement in the legislation that the physician must be in the same location as the patient when conducting the examination. The terms “examine” and “personally examine” are also not defined terms in the legislation. We are not aware of any court that has commented on whether these terms expressly permit the use of telemedicine to conduct examinations for the purpose of completing an application for an involuntary psychiatric assessment.
In some jurisdictions, larger telemedicine networks have – for several years now – provided physicians with the ability to conduct examinations for the purpose of completing an application for involuntary psychiatric assessments (e.g. Ontario Telemedicine Network). There is commentary from certain healthcare organizations that telemedicine is appropriate for this purpose.
Many Colleges are encouraging physicians to use virtual care as an alternative to interact with patients, including for mental health care. Most provincial governments have introduced temporary billing codes that permit physicians to more flexibly bill for virtual visits, including psychiatric assessments.
It is important to bear in mind that the “personal examination” requirement is a statutory safeguard given the serious deprivation of liberty at stake. It is therefore vital that telemedicine examinations only be conducted if they permit the physician to assess the facts, make the inquiries and form the opinions required to complete an application for involuntary psychiatric assessment.
Can I use virtual care to see patients during the COVID-19 outbreak? If so, what products should I use?
The CMPA supports the appropriate use of virtual care tools that enable physicians to more efficiently and safely provide care to their patients during these extenuating circumstances. Virtual care may be as basic as a telephone call or may involve video conferencing and other internet-based tools.
Many Colleges are encouraging physicians to use virtual care as an alternative to interact with patients, especially those who are exhibiting symptoms of COVID-19 or may be at higher risk if they were to be inadvertently exposed to COVID-19 (e.g. pre-existing medical conditions). Virtual care can be an effective means of providing treatment to patients . Physicians will want to use their professional judgment in assessing their ability to use virtual care, with regard to guidance from Colleges on how to provide care in the current context.
Physicians will want to be mindful of the limitations of virtual care and ensure patients are provided the opportunity for in person care where appropriate and available. It continues to be important to document all virtual care encounters with reference to the technology that was used.
A physician’s duty of confidentiality and privacy obligations continue despite the COVID-19 outbreak. Physicians will want to use best efforts to protect their patients’ privacy in the provision of virtual care. Physicians should obtain consent from their patient to use virtual care. Such consent should be obtained following an informed consent discussion regarding the increased privacy risks associated with electronic communications and documented in the patient chart, even if it is not possible to obtain a signed consent form from the patient. Patients should also be encouraged to take steps to participate in virtual care encounters in a private setting and through the use of their own personal electronic device/computer.
- Virtual care can be an effective alternative means to interact with patients during the COVID-19 crisis.
- The duty of confidentiality and privacy obligations continue despite the COVID-19 outbreak.
- Physicians should obtain consent from their patients to use virtual care.
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.
- 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.
- 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. If the medico-legal problem or legal action is initiated in Canada, the member is generally eligible for CMPA assistance.
- 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 legal action was initiated in Canada or elsewhere.
- 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.
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 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.
Need more medico-legal information amid COVID-19? Visit the CMPA COVID-19 Hub