CMPA: Practically Speaking

We want to hear from you

Would you like to hear more on a particular topic, or have any comments related to an episode? Email us at podcasts@cmpa.org.

Listen to expert CMPA physician advisors discuss a variety of topics affecting Canadian physicians and their practice. Covering a range of topics - from reducing risk and enhancing safe medical care, to physician wellness and how the CMPA supports its members in a changing healthcare environment - these podcasts will cover what you need to know, when you need it most.

Hosts: Dr. Steven Bellemare, CMPA Director of Practice Improvement, and Dr. Yolanda Madarnas, CMPA Physician Advisor


Accessing EMRs: How to avoid breaching privacy rules

October 2020 | 17 minutes

When is access to EMRs deemed inappropriate? In this episode, Dr. Bellemare and Dr. Madarnas offer key considerations on how to avoid breaching privacy rules when accessing electronic medical records. They review how privacy legislation, the circle of care, and custodianship of medical records affect how and when physicians can access medical records.

Listen now: Apple Podcasts / SimpleCast / Spotify

Transcript

Announcer: You are listening to CMPA, Practically Speaking.

Dr. Yolanda Madarnas: Hello everyone, welcome. Hi, Steven.

Dr. Steven Bellemare: Hi Yolanda, how are you?

Yolanda: I'm well, thank you. Steven, I wonder if having a user ID and a password for an EMR gives us the right of access to any information at any time?

Steven: Well I think the way you are asking your question is going to force me to say no. Any information at any time I think is the problem. Let's consider some examples: a celebrity is admitted to a hospital and someone looks them up in the EMR. Is that all right?

Yolanda: What about a friend who asks you to look up their MRI results because they can't get in to see their family doctor?

Steven: What about telling a learner or a colleague, “hey you know what you should follow up this patient in the record to see how they evolve”?

Yolanda: How about accessing a record to remind yourself of the care you provided when you are notified about a complaint or legal action?

Steven: So what is the common thread in all of these scenarios?

Yolanda: Inappropriate access to the EMR.

Steven: You know what, when is access deemed inappropriate? There are some pretty clear examples of inappropriate access, but it can be difficult to slice and dice on that subject in a number of different circumstances.

Yolanda: So today's podcast builds on the Perspective article regarding access to personal health information. So we are going to try and shed a bit of light on this for you and keep you apprised of the latest from the privacy world.

Steven: Let's go to our take-home points then, shall we Yolanda? The first one is that privacy legislation is designed to put a patient's right of privacy first. So in that framework, are other societal objectives, like quality improvement and education, secondary to patient privacy?

Yolanda: The second point is that of the circle of care. This circle of care includes health care providers, providing care to the patient who require information but on a need-to-know basis in order to provide health care to the patient.

Steven: The third point is that physicians, whether they be staff or trainees, really need to understand the custodianship of medical records. And that means that they really should always be seeking permission from their hospital or clinic before accessing patient records after they are no longer involved in patient care. 

Yolanda: So let's go back to the first point, about privacy legislation. Let's remind ourselves that privacy is legislated provincially. For example, in Ontario, PHIPA regulates the use and access to personal health information. 

Steven: The PHIPA is the Personal Health Information Protection Act.

Yolanda: Yes, so regardless of where we practice, it is important to familiarize ourselves with the legislation applicable in the jurisdiction you are practicing in.

Steven: That's right, because each province or territory has different guidelines to regulate the collection, the use, and the access of physicians or other people to personal health information. They also have criteria for what constitutes a privacy breach and criteria to guide us in reporting privacy breaches. So not everything is a privacy breach and not everything that is a privacy breach is necessarily reportable to the patient. It may just be reportable to an institution for instance.

Yolanda: So all of this information is generally available through your College, your hospital, your institution and you can call us at the CMPA for added information as well.

Steven: I would certainly echo that Yolanda because it's complicated. So, let's use an example to explore this though. You are a well-intended physician who sees someone in the Emergency Department and you want to follow up in their chart for your own education. Look, we have all done that, right and it's a noble thing. It may not technically be allowed and if we happened to do it and the hospital runs an audit, we will have to answer for it.

Yolanda: This illustrates the privacy laws were not drafted with actual medical practice in mind. Their focus is really to protect the privacy of the individual and we need to revisit and rethink our practices within the discipline of medicine as to how they fit into that framework.

Steven: That's right. That's not to be critical of privacy laws; it's just the reality of how things have evolved. So, it's understandable in this age of E-communication and all the privacy breaches that are out there, that we need to pay attention to that.

Yolanda: Such well-intentioned and justifiable access to the EMR may actually constitute inappropriate access to personal health information when you are not in that circle of care.

Steven: Now Yolanda some laws allow access to personal health information for purposes of quality improvement. Whether or not education is quality improvement is going to be a matter of interpretation based on the law at hand and the viewpoint, the policy, of the institution that you work in.

Yolanda: Yeah.

Steven: So asking your hospital or clinic to draft a clear policy to allow access for quality improvement and learning may actually be well worth it. So that you are actually promoting clarity within your institution as to whether or not this practice of accessing patient's medical records to follow up on their condition after you’ve admitted them, is actually allowable or not. But, before you do that, it's actually important to know the provincial laws that might actually affect the drafting of that policy.

Yolanda: So this is a great time to introduce the concept of the circle of care, our second take home message.

Steven: Right. So physicians can generally rely on the patient's implied consent to share personal health information within the circle of care. So that’s what allows me, the pediatrician, to share information with you, the oncologist, about a mutual patient that we have, without actually having to seek their parent's formal permission to do so.

Yolanda: It's implied.

Steven: Yeah. That's right. The health care professionals who need to know the information to provide care are the ones that are included in the circle of care. It's not this “willy nilly” sharing just out of interest of course and the information you can share is actually limited to what's necessary to provide health care to the patient.

Yolanda: Once a physician is no longer in that circle of care, it's important that they consider whether access to the records subsequent to that is A), permissible and whether the custodian has approved or allows the access.

Steven: So at what point though is one "no longer" providing care and I'm waving my fingers in the air doing my quotations marks. Isn't following-up on your patient good medicine?

Yolanda: Absolutely. I don't think anyone would argue with that, that that's not good medicine but strictly speaking we are only allowed to access personal health information for purposes of providing care. So whether following up on someone is continuation of providing of care is perhaps a bit of a grey zone and even being in the context of a circle of care the access does have limits. We are only allowed to access what we need to deliver that care or what we need from their past history to deliver their care today.

Steven: Right. So I am thinking if I'm treating a patient with appendicitis, I would have no reason really to go look in their psychiatry outpatient visit history for instance. 

Yolanda: Correct. That is not on a need to know basis unless it's relevant to the care today. So that is common sense. But let's focus on the issue when a physician is no longer providing care, as is the case when a patient gets transferred to another team, another institution. So this physician is no longer considered to be in the circle of care and they do need to stop accessing personal health information.

Steven: Well that is something to think about isn't it? I know many physicians who see someone they are concerned about and may often reflect after the fact, and wonder “Was my care appropriate, was my diagnosis right, should I have done something differently?” and they may seek to learn and improve their practice by looking in the EMR. So that may be a problem, privacy-wise. 

Yolanda: Yeah. 

Steven: It could be a walk in clinic case where you found out after the fact, for instance that you might have missed something. So, leaving the circle of care is really the turning point then.

Yolanda: Absolutely. We've had cases, we're doing just that, has led physicians to be flagged by an EMR audit as having breached privacy.

Steven: That's right and there may be ways to manage this though.

Yolanda: I think so.

Steven: It may involve talking to the patient or the substitute decision maker if they are not capable of giving you consent to obtain consent to do just that. To follow up in their record after the fact and learn. If you do that, it's wise to get that consent signed and to really make a note in the record of the fact that you have accessed the medical record with the patient's consent so that you establish that you weren't snooping. 

Yolanda: Yeah. So it's not foolproof but at least it creates some transparency for your actions.

Steven: I think that's a great segue then to the third take home point, custodianship of medical records. Why is that important? 

Yolanda: Well, honestly as a physician we often regard patient's health information as ours to use in the course of providing clinical care and even for other purposes, like teaching or research, but individual patients do have the right to determine who can access their health information and under what circumstances.

Steven: Right, because the patient owns the information. The physician, the clinic, the hospital may own the system, the EMR system or the paper record that houses the info, but the info belongs to the patient.

Yolanda: So in a hospital or other group practice, it is the institution that is the information custodian, who controls access over these medical records and physicians should seek permission from the institution and be forthcoming about their reasons for requesting access to a patient's medical record.

Steven: That's not to be nit picky, it's really because that's the custodian's duty, their legislated duty to ensure there is no unauthorized access to those EMRs and to personal health information. That's why they actually run chart audits when they do.

Yolanda: So without getting overly complicated, physicians can generally rely on a patient's implied consent to access and share their personal health information for purposes of providing that health care with people in the circle of care. However, when we access the record for purpose other than providing care, the physician should really aim to get explicit consent from the patient or rely on a legislated provision that does allow them to access the record without seeking consent.

Steven: Depending on the provincial or territorial legislation, it may be possible to work with the hospital to create policies or procedures that actually allow access to patient information for educational purposes.

Yolanda: That helps everyone. So the bottom line is two-fold, patient consent is required to access their personal health information for anything other than provision of care and physicians should always seek direction from custodian of the record for purposes here at the hospital or the clinic before accessing patient' records when they are no longer in that circle of care.

Steven: Right. That's why accessing a record to refresh your memory can be problematic once you hear of a complaint, a lawsuit or after a patient safety incident after you have left the circle of care.

Yolanda: So it's not that you are not going to be allowed to refresh your memory or that there isn't a good reason to access. You are entitled to access the record to defend yourself in a complaint or a lawsuit, you just need to do so appropriately.

Steven: That's right. You need to follow the rules. Here is a perfect example, it's not related to a complaint or a lawsuit but I think it illustrates the points. You are on staff at a hospital and your child has a chest x-ray and you look up the results in your EMR. Seems like a benefit of working at the hospital right? 

Yolanda: Sure. I mean, you are the parent. You provide consent for your minor child. Of course, so what is the problem?

Steven: Well the issue is that the hospital didn't give you access to their EMR for that purpose and you are not and never were in the circle of care for your child.

Yolanda: So while you have a password and access to the EMR, you still shouldn't access that information, right?

Steven: Exactly. No, you are allowed to get the info of course, you are the parent, and you can consent to that, but you have to do it through the right channels. If you get back to the initial question you were asking at the very beginning of the podcast, having a password to the EMR doesn't give you access to anything, any time.

Yolanda: No carte blanche. In fact, that's what happens when audits are run on hospital medical records. The hospital will often run reports flagging access to a record by people with the same surname, i.e. family member or all access on a VIP or celebrity medical record for example.

Steven: Right. We've seen those, we've seen those cases.

Yolanda: Yes we have.

Steven: So how about we revisit our initial examples, Yolanda.

Yolanda: So remember what about the friend who asks you to do look up their MRI result because they can't get in to see their doctor?

Steven: Nope. Even though you have consent from your friend to do so, you are not in their circle of care and they right way is through medical records or for them to actually do it through their own physician.

Yolanda: So then as a friend, I could tell my friend, why don't you go to medical records, ask for a copy of your report, you are entitled do it, but you need to be the one asking for it, right?

Steven: That's right.

Yolanda: How about when we are working with residents and other learners and we ask them to follow up on a patient they have been involved in and have a look in their record and see how they evolve wanting to see what happened to this patient?

Steven: Nope. That's probably the most shocking “nope” for our listeners I suspect. Again, they have left the circle of care if they are just doing follow up and they are not involved any more. We have to be real. This could have significant impacts on how we learn and how we provide care. Don't we have an obligation to follow up on lab results for instance?

Yolanda: Absolutely. Physicians are responsible for ensuring follow up on all investigations they order. But that follow up implies that you are still in the circle of care to action that result. The issue of following up out of well-intended curiosity for our own learning or QI is really the grey zone and it is best to seek permission to do so from the patient and document your reasons for accessing that EMR if you do do it.

Steven: So following up with a purpose to provide care, i.e. following-up lab results, is different than following-up with a purpose of just learning and keeping apprised.

Yolanda: However noble that may be.

Steven: Subtle, subtle differences, right? Finally then, what about accessing a record if you have been sued or complained about?

Yolanda: Nope. You may still be the circle of care, accessing the file for this purpose is no longer related to delivering care and well we are entitled to access the record for our defence in the case of litigation or complaint, we have to go through the right channels.

Steven: Okay, Yolanda I think we've given our listeners a good primer on privacy issues and the whole business of needing to know information. That was probably what they needed to know about privacy. How about we move on to communication tip then.

Yolanda: So, communicate with your hospital to develop policies and procedures that will allow access to patient information for those circumstances that aren't strictly related to patient care. For example, education and quality improvement undertakings.

Steven: I think that clarity would be wonderful to have, for sure.

Yolanda: For everyone.

Steven: And in everyone's individual context because one hospital might deal with an issue very differently than another.

Yolanda: Exactly. How about a documentation tip, Steven?

Steven: You know my documentation tip would be, linked to the fact that EMRs have built in audit controls to detect each time a record is accessed. They know who accessed the record at what time, for how long, on what page, what was added, what was changed, what was deleted, it's all in the background. So, if anyone is accessing a record for a purpose other than provision of clinical care, documenting the fact that they were doing so with the patient's consent and for the purpose of following up helps build that transparency. I think it's worthwhile to really demonstrate that you are not really snooping.

Yolanda: So documenting a note in the patient record at the time of transfer of care. Patient agreed for me to follow up on their evolution in hospital for example or at the time you accessed the EMR, making a note and saying accessed on this date, today, for this purpose. So doing it proactively rather than at the time when potentially it gets caught and it's still explainable but to do proactively and contemporaneously would be more prudent.

Steven: Well that's all the time we have for today. Thank you for joining us everyone and please don't hesitate to send us your comments, questions and story ideas. Our address is podcasts@cmpa.org.

Yolanda: Thanks everyone and thank you Steven, this was great.

Steven: It was great, and remember, when you change the way you look at things...

Yolanda: the things you look at change.

Steven: Goodbye,

Yolanda: Bye everyone.

Announcer: These learning materials are for general educational purposes only and are not intended to provide professional medical or legal advice, nor to constitute a standard of care for Canadian Health care providers.


Read related Perspective article: Why do you need to know? A balancing act for accessing personal health information

COVID-19: Managing wait times

September 2020 | 20 minutes

Concerns surrounding wait times in the delivery of health care are not new, however, the COVID-19 pandemic has resulted in further concerns due to the postponement of elective procedures. Dr. Wendy Levinson, Chair of Choosing Wisely Canada, joins the hosts to discuss tips on the safe management of wait times in order to promote safe care and decrease medical-legal risk for physicians.

Listen now: Apple Podcasts / SimpleCast / Spotify

Transcript

Announcer: You're listening to CMPA: Practically Speaking. 

Dr. Yolanda Madarnas: Hello everyone, welcome, I'm Yolanda Madarnas.

Dr. Steven Bellemare: And I'm Steven Bellemare. It's nice to be here with you again.

Yolanda: It's good to see you again Steven. So what are we talking about today?

Steven: Well, Yolanda, we thought we would talk about resource utilization and wait time management.

Yolanda: Well, this isn't a new topic to physicians, but it is timely because there is renewed interest and concern about this topic given the COVID-19 related postponement of elective procedures and such. 

Steven: Absolutely. You know wait times, we know have an impact on physicians, the patients, and the system.

Yolanda: So today we hope to give you some tips on safe management of wait times in order to promote safe care and decrease your medical-legal risk.

Steven: But you know what Yolanda, before we get going I have a special surprise for you.

Yolanda: Oh, I like surprises. 

Steven: We have a guest on this show.

Yolanda: Do tell?

Steven: Well, let's take a listen, who is on the show with us?

Dr. Wendy Levinson: I am Wendy Levinson, I am a general internist and I am the chair of Choosing Wisely Canada. It's my pleasure to be with the CMPA today for the podcast.

Yolanda: What a great surprise.

Steven: You know, I thought you would like that. We actually spoke to Dr. Levinson via webinar interview just a few days ago. As you'll hear from her, I think that Choosing Wisely Canada's message is actually going to be very helpful in this context of resource management and wait list management.

Yolanda: It does align well with our objective of promoting safe care.

Steven: Doesn't it?

Yolanda: So managing wait times is not a new issue for Canadian physicians, but the magnitude of the problem is.

Steven: For sure. In a post-COVID-19 world, it's expected that there is going to be a gradual movement to return to pre-pandemic level medical services, whatever that is going to be. But now we face a huge backlog of postponed elective care that is going to be really difficult to manage.

Yolanda: Absolutely. Will it fall on physicians to determine which medical services should be reintroduced first and how care should be prioritized in their own practices?

Steven: Well, I guess the answer is yes and no. Not really the physicians by themselves. For sure I think we are going to be told to some extent by public health, hospitals and regional health authorities what to do.

Yolanda: But for the physicians there is likely to be a responsibility, both the consultant and the referring physician in the example of wait times to see a consultation for the physicians, both the referring doctor and the consultant, to address the wait and contribute in some way to making it as safe as possible.

Steven: That's right.

Yolanda: So we have three take-home messages then for today's podcast, Steven. The first one would be to be aware of and follow the direction of the ministries of health, the chief medical officers of health, our regulatory bodies, the colleges and the institutions we are working in.

Steven: Right. The second take-home message of course would be to keep the lines of communication open with your patients to allay their concerns and to monitor the patient's clinical condition. 

Yolanda: The third take-away would be to strive to collaborate with other health care providers and administrators to appropriately manage what are our scarce resources and waitlists during this time period.

Steven: You know, Yolanda, in general, physicians are expected to consider what's in the best interest of their patient. The context of the situation however, is going to be a significant consideration in making that decision.

Yolanda: Absolutely. So it may mean making decisions that are proportionate to the system's capacity while minimizing potential harm in trying to keep the priority of your patient's best interest in mind and striking a balance between those two.

Steven: That's right. So why don't we go to take home point number one then? That is to be aware and to follow the direction, the directives of the various bodies. The ministries of health, the chief medical officers, the colleges, and even the institutions that we work in.

Yolanda: To do so, it's important of course to stay aware of what's going on in your area. The various authorities aren't going to tell you who to see first. You will need to figure that out on your own, but to some extent help may be available from your specialty societies, consensus groups, your colleagues. 

Steven: Maybe even local medical associations for instance.

Yolanda: Absolutely.

Steven: So to a large extent it will be based on common sense.

Yolanda: Yes.

Steven: However, right.

Yolanda: As we said before, wait times, longer wait times aren't unique to COVID, but the importance of these is just brought to light by the situation that we've been through and it's important to try and have fair and universal criteria for deciding how the triage goes about.

Steven: Absolutely, and to clearly communicate to you patients and to your referral base, what those criteria are. 

Yolanda: So with this in mind, Dr. Levinson has an interesting take on the issue of communicating with patients regarding these delays in care. Let's listen to what Wendy has to say. 

Wendy: Doctors don't wake up in the morning and think I will go into the office and order a bunch of unnecessary tests or treatments. So how does it happen? Well, there are many reasons we might order a test that we think it not necessary because we think the patient wants it. Often it's just our routine or habits. We learn even in our medical training and throughout our career to do certain things and we don't change those patterns very often. We might be afraid of uncertainty and so we order more tests or treatments and certainly as the CMPA well knows, physicians are often afraid that might be sued if they missed something, so they order more tests to "leave no stone unturned." But you know it's quite interesting what's happened during the time of COVID because now many doctors are having visits with patients virtually. So in that circumstance, if you are concerned and you can't exam someone you might order a chest x-ray that normally you wouldn't order. Or what we hear a lot from doctors is they are ordering antibiotics where they know that they aren't particularly useful, it's a viral infection, but they are just covering all the bases because they can't see the patient. So we might order unnecessary tests or treatments in this virtual situation just to be sure. 

It's natural for patients who are waiting to be anxious. They are asking themselves the question, is this delay going to be bad for my health and so they are worried. So I think it's extremely important that physicians have these conversations with patients and tell them what the delay is and how long it's going to be and what they should expect. But I think an extremely helpful question is ask a patient what are you most concerned about in this delayed period and listen to what they say to you because some of their concerns you may be able to allay, you may be able to reassure or you will understand better what they are most worried about and then you can discuss options. So it's really to be able to communicate openly, discuss the options, understand what they are worried about, and reassure patients. Or if there is something urgent then to get it moved up more quickly because it really is needed and the delay would not be in the patient's best interest. The worst thing to do is to not have those conversations because that will leave patients very anxious and feel abandoned.

Yolanda: So then choosing wisely really relies on everyone making wise choices, otherwise the system falls about and doesn't benefit.

Steven: That's right and you know how Wendy was talking about when something is urgent you get it moved up. That's the key, isn't it? If we are utilizing all the resources in a less wise or desirable manner than we might not be able to move things up urgently. So I think it is very interesting how Dr. Levinson makes the link between how we order tests and why we do so as a result of the shift to virtual care. That message about good explanations for patients of course leads well into our second take-home message, doesn't it?

Yolanda: It sure does and remember and that was to keep the lines of communication open with our patients so that we can explore and address their concerns and monitor their clinical condition.

Steven: That's right. This message is actually about what happens before you meet the patient, but after they've been put on your wait list if you are a consultant or what happens after you've sent the patient off for a consultation, but before they get seen, if you are a family doc. It's really not just about communication between the referring doc and the consultant, but also we have to remember the patient. This really is a triad whenever there is a consultant that's waiting.

Yolanda: So then it's multidirectional communication. It's true that patients are likely to become more and more aware of the issue increased wait times after COVID and it's conceivable that they might have begun to feel abandon. So communication about the issue can really help engage proactively with the physician, but it is going to require a certain agility and nimbleness on the part of the physician because fundamentally we want to avoid our patients feeling abandoned.

Steven: Of course and the reality is that you likely owe a duty of care to the patients that are on a waitlist. Even if you are the consultant and you haven't seen them yet, but even more likely if you are the referring physician and you did see them.

Yolanda: Absolutely.

Steven: So both physicians have that relationship.

Yolanda: We've seen this in a number of cases over the years, long before COVID happened. So, you are expected to provide sufficient information to the patient so that they can identify signs and symptoms that require a call, or re-evaluation.

Steven: That's right. You want to make sure if you having yet triaged consults that the clinical details that were received say three, six months ago when the consult was made are actually still up to date.

Yolanda: Yes. We need to ensure that the patient has adequate instructions as to what to do if their condition changes. So, it could involve communications with any number of people, the referring physician, the patient, other health care providers, their families.

Steven: What you really want in fact is to avoid being unaware of significant signs and symptoms that are going on and to be blindsided so to speak by a case.

Yolanda: So this is relevant at all times and in all circumstances anyway. Longer waitlists due to COVID and maybe modified approaches rising out of ministry or hospital directives. That's going to mean that we will have to be we are going to have to be wiser and spend more time and attention on this issue.

Steven: But you know in the end if a resource is scarce and we have to differ seeing some patients longer than we like, it's not really going to be easy to do, right? 

Yolanda: No, it goes against our nature to some degree. So, of course not, but having to manage these resources means having to balance the individual patient's needs versus the need to manage a resource for the broader society and that is not easy.

Steven: We spoke to Dr. Levinson about this. We discussed her thoughts on discussing resource scarcity with patients and I think her insights were quite good. Let's take a listen.

Wendy: I think it is very important that physicians take care of the patient in the room and not at that moment think about the pressures on the system or society. We don't ration at the bedside. We take care of the patient in front of us and so I think when we are talking with patients we need to discuss their needs and if their symptom or problem is not urgent and can wait for that MRI, then that is appropriate for that patient. We really like to encourage patients to ask four questions. Do I really need this test or treatment? What are the downsides? Are there simpler safer options? What if I do nothing? We think those four questions really help answer patient concerns and have the conversation that is needed between the physician and the patient to make those decisions together. Outside the exam room, I think it's very important for physicians to work with their local leaders that might be at hospitals or primary care clinics, with their government, to think about how we re-introduce services after this time of COVID. We of course have been backlogged in need for operating room space, for delivering chemotherapy, for use of imaging procedures and even also in primary care where we have to think about what are the priorities there. I think in that context physicians need to work together to think about, okay, how do we prioritize which patients really need these services first and which can wait. That's where we think about the limited resources and how we use them most wisely. But in the exam room with the patient it should be about that patient and what they need, whether they can wait for their imaging or whether it's more urgent.

Yolanda: This makes me think about the importance of managing other health care providers expectations as well, right?

Steven: Yeah, it does. It actually links up to take home point number three, I think.

Yolanda: Which is collaborate with other health care providers and administrators to appropriately manage these scarce resources and the wait lists.

Steven: Exactly, what Wendy said. If there is no clear guidance for the work you do, be an active participant in the process and try and actually get consensus amongst your colleagues.

Yolanda: So being an active participate to come up with an approach in your community, to make judicious use of scarce resources is not just good for your patients and promote safe care, but it can actually do wonders for your own wellness.

Steven: Right. Taking control over what you can control is great for actually feeling useful and it's empowering for us to feel like we can actually have an ability to take good care of our patients.

Yolanda: In the end we are experts in our patient population's needs and what better way to use that expertise than to help influence policy development. So reaching out to others in the system that we see as key players, in unlocking a resource so to speak, can actually help to lead innovative solutions.

Steven: But the secret is in how we do it. Advocacy done right can do wonders, but done with too much passion shall we say, it can turn others off and your ideas will fall on deaf ear. We have to be careful not to come across has disruptive but rather as collaborative.

Yolanda: Let's take this a step further in thinking that innovative grass roots solutions could actually lead to a better functioning system by shifting and reallocating services and in fact that's what Wendy told us.

Wendy: Choosing Wisely is a campaign that started six years ago in Canada and the goal was really to engage clinicians, mainly physicians in trying to address the problem of over use of unnecessary tests and treatments and one of the things that Choosing Wisely is based on is a grass roots ground up creation of these recommendations from physicians about what tests, treatments, and procedures are not really needed. COVID actually offers an interesting opportunity for us to reflect on things we do that don't add value. So if you think about it, if we have limited resources in our MRI machines for example and we don't do imaging for low back pain unless red flags are present which is one of the recommendations, then those patients are not using a resource that is really unnecessary. So this frees up operating room space and resources that can be used to do other things, like hip replacements, which we know have a huge impact on quality of life. So there are many things in our system, where if we use the resources more cautiously and eliminated those who don't add value it creates capacity in our system for things that really do matter. So in some ways this new phase we are in, is an opportunity for reflection and potential change.

Yolanda: So value added care helps patients, helps us as clinicians by promoting the likelihood, the resources available when you actually need it and it helps the system by decreasing strain. So money allocated to one resource needlessly can be shifted and added to a resource that is much more in need, for example.

Steven: So thinking back to the COVID-19 crisis and the scarcity of personal protective equipment for instance, what we did was actually choose wisely, how to go about using it and it was because we knew we were going to run out if we didn't do that, if we weren't going to be wise about it.

Yolanda: Well, there wasn't a Choosing Wisely guideline on PPE. The principle was there. COVID led us to rethink our use of personal protective equipment out of necessity mind you but really the analogy I think is valid for wait times nonetheless. 

Steven: So in the end, you know, we know managing wait time and resources is not easy.

Yolanda: Of course not, but it is our responsibility to be aware of guidelines and to consider them. Our approach needs to be evidence informed through guidelines, the standard of care, our local context and our own expertise.

Steven: Those are four lenses through which to view the evidence and to make decisions, isn't it?

Yolanda: Yeah and it's really about principles and a framework for decision making. Not stringent hard fast, carved in stone rules.

Steven: With an eye to balancing the needs of both the individual patient and the patient population and the system has a whole.

Yolanda: So we have to wrap things up Steven. Time for a communication tip.

Steven: Sure. I would say it's important to communicate purposefully and that means to clarify the roles for the patient care while the patient is on the wait list. By that of course I mean between the referring physician and the consulting physician.

Yolanda: As well as the patient. That tri-directional—

Steven: That's right.

Yolanda: Communication path.

Steven: Yeah. We can't make the patient responsible for managing their wait times and whatnot, but they do need to be aware.

Yolanda: For documentation tip Steven, let's document what lens we used to make our choice. Which ones of those principles are you basing your reasonableness on?

Steven: That's right. That's a very good point and I think unfortunately we are at the end of our allotted time. I wanted to take the time to thank, Dr. Levinson for taking the moment to share her thoughts with us.

Wendy: It was a great opportunity and I hope the audience enjoys it.

Steven: We certainly appreciate it that's for sure. So with that goodbye everybody. I'm Steven Bellemare.

Yolanda: I'm Yolanda Madarnas.

Steven: And remember when you look at things differently

Yolanda: the things you look at change.

Announcer: These learning materials are for general educational purposes only, and are not intended to provide professional medical or legal advice, nor to constitute a "standard of care" for Canadian health care providers. 


COVID-19: Virtual care

May 2020 | 19 minutes

As a result of the COVID-19 pandemic, physicians have had to rapidly pivot their practices to include virtual care provision. This episode covers how to include considerations around clinical judgment, standard of care, informed consent and privacy to provide the best virtual care you can.

Listen now: Apple Podcasts / SimpleCast / Spotify

Transcript

Dr. Yolanda Madarnas: Hi everyone. Welcome to the fourth installment of our podcast series in the context of COVID-19.

Dr. Steven Bellemare: I'm Steven Bellemare, Director of Practice Improvement.

Yolanda: I'm Yolanda Madarnas, Physician Team Lead in Physician Consulting Services.

Steven: Today we thought we would talk about virtual care in the midst of a COVID-19 pandemic. You know Yolanda the medical community has been very agile in pivoting to the use of virtual care.

Yolanda: Not everyone is necessarily feeling agile. I know that in speaking with members on the phone, some tell us that they are struggling.

Steven: Yeah, for sure, for sure. But you know we have to give credit where credit is due. The majority of our members are telling us that they are actually using the phone to provide care. This isn't new, but they are using it more and more and you know, that is, technically, virtual care and that's an agile way to pivot to providing care.

Yolanda: That's true. That's true. Using the phone is indeed virtual care. Virtual care isn't just about using platforms with video links and formal telemedicine channels.

Steven: In fact you know, virtual care broadly speaking is simply the provision of medical care using technology with the provider physically separate from a patient.

Yolanda: So, in this podcast, we are going to try to address some of the medical-legal considerations when performing virtual care encounters.

Steven: Many provincial colleges have published standards related to virtual care. It's important to be familiar with these requirements as well as the many resources that are available to you to help you implement virtual care.

Yolanda: Indeed these standards and guidelines highlight the importance of considerations like consent, privacy, limits to care, and documentation.

Steven: So today as we normally do, we will have three take away messages.

Yolanda: Well, first and foremost let's state the obvious. Virtual care can't completely replace face to face encounters. We do need to use our clinical judgment to determine when a patient needs to be rebooked for an in-person assessment.

Steven: Second when it comes to virtual care visits, the standard of care should not be unduly compromised. Medicine is medicine and some conditions are not amenable to virtual care. Patients need to be redirected for appropriate in-person assessments.

Yolanda: Last but not least, not all virtual care platforms provide the same level of protection and security of patient health information. It's important that the patient understands and consents to moving ahead with a virtual care encounter.

Steven: Right. So, Yolanda let's jump to number one. Virtual care cannot completely replace face to face encounters.

Yolanda: Well, that's obvious and goes without saying. Virtual care encounters aren't the same as face to face encounters for many different reasons.

Steven: Of course. Especially when they are done over the phone. Assessments will be missing key pieces from physical examination and from all the nonverbal information we instinctively pick up on without consciously thinking about them.

Yolanda: Yeah. That makes information gathering and information delivery that much more important.

Steven: Right.

Yolanda: So while the medicine is the same, a virtual encounter may require you put more effort into certain aspects. For instance, the pertinent negatives and pertinent positives and discharge instructions.

Steven: Right. What do you mean by that though?

Yolanda: So, our differential diagnosis and management plan is only as good as the information we receive. Perhaps more so in a virtual care encounter than a face to face encounter. We need to be careful to gather all of the information that we need.

Steven: Right. So garbage in, garbage out.

Yolanda: Kind of and similarly our discharge instructions need to be very clear, almost directive. For example, whether another virtual encounter is appropriate or whether that patient should go to the Emergency Room in the event of the situation not resolving.

Steven: You know we are hearing in fact from our members that virtual care is not unanimously embraced just because, in fact, it can be somewhat awkward.

Yolanda: But the reality is that it has an important role to play and it can be a valuable tool provided we recognize its limits.

Steven: True. Virtual care cannot replace face to face encounters entirely but many conditions can safely be managed through virtual care, would you not say?

Yolanda: That's true and it does take clinical judgment though to decide which ones can or should not be managed with this modality. Which takes us to key message number two: the standard of care.

Steven: Right. So, the colleges and courts expect that physicians won't unnecessarily or unduly compromise the standard of care. They will take into account the context in which the care was provided. We talked about that in podcast number one and in a pandemic situation a court or a college is likely to allow somewhat more latitude for virtual care than in a non-pandemic situation. Context does matter but judgment is critical.

Yolanda: Absolutely. So, while colleges acknowledge that these are unprecedented times it is essential for any physician going to use virtual care to consider just how suited virtual care is to assess any given patient.

Steven: For instance if you need to perform a specific physical exam maneuver for instance.

Yolanda: Yeah.

Steven: You may need to see a person in person.

Yolanda: Sure. Some elements of a clinical exam can be done via a virtual care modality if a camera is present. So a video may help you assess a rash or range of motion of a joint but it's not going to allow you to palpate an abdomen.

Steven: By and large most people tell us the phone is a good enough starting point. There may not be a need to go to a complicated series of web visits and platforms just so you can see a person.

Yolanda: Of course it's important to remember that everyone's practice is unique. So we each have to ask ourselves what problems can we safely assess and treat virtually and which ones can we not.

Steven: And not hesitating if the patient's condition is not amenable to being addressed virtually to rebook them for an in-person assessment either with you, a colleague, or sending them to an emergency assessment center.

Yolanda: Yeah. Let's restate the obvious, that standard of care should not be unduly compromised by virtual care. Medicine remains medicine and we need to offer our patients the best care possible under the circumstances.

Steven: You know speaking to the colleges again, they are aware of this. They have stated, a number of them have stated, that they will assess potential complaints in the context of how the care was provided.

Yolanda: Which is reassuring. But Steven, two situations come to mind where we might stumble.

Steven: Okay.

Yolanda: Take, for example, a patient who insists on being seen in person when they are offered a virtual care encounter. The flip side, a patient who we have asked to come in for a face to face encounter but refuses to come and be seen in person.

Steven: Well, you know what Yolanda, those are good points. We have heard from members about those issues, both of them, and the reality is that, with regards to the patients being concerned that they won't be satisfied with virtual visits, the rapid uptake of virtual care would actually suggest otherwise, that people are actually embracing this and finding it actually rather convenient. The biggest problem is in fact your second situation. It's that people who are seen virtually may in fact refuse to come in for a more in-depth assessment and that can cause a problem for the treating physician.

Yolanda: Absolutely. So, in both situations taking time to explore the issues is a great starting point. So, for example for the patient who insists on coming in, are their unmet expectations. What is the underlying need? Perhaps explaining that there is a risk of contracting COVID if they come in and trying to balance that against their wishes.

Steven: So, that might actually help them understand why a virtual visit may be appropriate despite some apprehensions around that. You know similarly when you do need to see someone for a more in-depth evaluation and they refuse, taking the time to explore their concerns is again a great place to start.

Yolanda: So perhaps there is a misunderstanding or an overestimation of the risk of contracting the virus that in fact needs to be addressed.

Steven: You know what we've seen this with people.

Yolanda: Absolutely.

Steven: Not wanting to go to Emergency Rooms. People are saying Emergency Rooms are empty compared to what they were before because there is that fear of the virus and conveying that information, that no, this is still a safe place to come and you really do need to do that is important. We are hearing from patients, from members I should say, that they are seeing, some patients that are more critically ill than they were before.

Yolanda: Because they delayed.

Steven: Yeah, exactly because they delayed attending the Emergency Room. So, you know in those cases where patients are hesitant to go see someone in person, it's important to document the advice that you give and your plans to comply with the standard of care. To do what the standard of care would call for.

Yolanda: In essence, this really is informed refusal. Patients can refuse to be seen, can refuse to follow our recommendations but as a physician, we do need to make sure they do understand those risks. Okay. So let's move to key point number three Steven.

Steven: Are we there already? Informed consent then.

Yolanda: Alright. So, consent for virtual encounters isn't really implied by simply participating in the encounter and it does need to be addressed.

Steven: This is really consent around the potential inherent security issues. The threat to personal health information that comes with virtual care.

Yolanda: It's important that we help our patients understand that privacy and security risks vis-a-vis their health information exist with the use of any platform, be it telephone, telehealth, video conference, email.

Steven: Security is a huge issue. We could spend a few podcasts talking about security but basically the big concern here is that the health care information can be intercepted by a third party.

Yolanda: That's where encryption of the platform is important.

Steven: Simply put, encryption means that the information is scrambled and it's indecipherable for anyone who doesn't have the access key.

Yolanda: Specifically it's important to understand there is a difference between encryption at large and end-to-end encryption.

Steven: Okay, that's going to need a little bit more explanation.

Yolanda: Yeah. It is complicated indeed and I'm going to do my best to try to explain it. So, an encrypted platform doesn't allow anyone but the two users to see the data. The data is scrambled in transit, but it isn't scrambled when it sits on a provider's server. There, it's not encrypted and that could potentially allow the technology provider, that company that sold you the platform, to mine your data while it sits on their servers. Without end-to-end encryption, they could theoretically access the content of that visit and figure out for instance that I'm an oncologist, that I specialize in breast cancer, that I connected with 10 patients in three regions between the hours of 9:00 and 3:00 and they can start building a profile that uses that information about my virtual care consults. Not the actual information but use it for non-healthcare purposes.

Steven: So that's where end-to-end encryption comes in. In end-to-end encryption, the platform company can't even access the content of the virtual care visit. That type of information is completely blocked off to them. It's definitely more secure and those issues whether or not you're platform provides encryption or end-to-end encryption is usually found in the small print, the fine print of your contract.

Yolanda: Something most of us are not trained to understand, know about, or even know to look for, but many provincial medical associations, colleges, and health authorities have actually come out with recommendations on which platforms they deem appropriate for use. Some have even bought licenses for all of their physicians and some have services that can help you sort this out.

Steven: Right. So, Yolanda, if I was to work in a clinic or a hospital and use a virtual care platform for instance that's provided by my provincial government, could I as a physician be held to account for something that I have no control over if there was to be a privacy breach?

Yolanda: Yeah. That's a good question. I mean, generally, physicians are allowed to rely on the systems provided to them by an employer, by an institution, a clinic, a hospital.

Steven: That said, it's also a good idea, to point out privacy concerns that you may have about your systems if you suspect or know about them. Even better for you to do it in writing so you can demonstrate your diligence.

Yolanda: Yeah. That's a great point and in fact, in most of these facilities, there are privacy officers whose job it is to look after that.

Steven: Yeah, you can't just use a patient's consent to use the platform to "wash your hands" of the security issues if there were to be any. In fact, one of the other issues to consider is that patients should avoid using a computer or device that doesn't belong to them, that belongs to someone else. Their employer for instance because some elements of their health care visit information, could be accessed through things like cookies, for instance.

Yolanda: Yeah. So, let's use this as the springboard to talk more about the consent issue. So, are physicians expected to get consent each and every time they conduct a virtual visit?

Steven: Well, it would be the prudent thing to do for sure.

Yolanda: Wow. So, each and every time they see the same patient, or can they just do it the first time?

Steven: Well, you'll see me coming here again, I'm sure. Ideally, you want to do it every time and that's because the issues may be different from visit to visit and the privacy concerns for one type of problem may be more acceptable to a patient then they are for another.

Yolanda: Yeah. So, I guess, generally speaking, it's best to assume that patients haven't even considered the security issues associated with virtual care and so it behooves us to point them out.

Steven: I think that's certainly very diligent, right? Every time.

Yolanda: Every time. People forget, people change, circumstances change.

Steven: Right.

Yolanda: There is more to consent then the security platform. Another important aspect is the limitations of the care when done virtually.

Steven: That's right. Does the patient actually understand that their issue may not be manageable by virtual care or that there are limitations in what you'll be able to say to them or the advice you will be able to provide?

Yolanda: By that, if a physical exam is deemed to be necessary that they are going to need to rebook for an in-person assessment or present to ER.

Steven: Right. In the end, these consent issues, Yolanda, the good news about those is that they can be delegated to someone else. You, the physician, don't necessarily have to do it yourself every single time.

Yolanda: Yeah, that's right. You can delegate that first step of consent to a practical nurse, a nurse working with you, your medical office assistant, a clerk. As long as you are confident that they have enough knowledge to explain things well and to address any questions that the patient has.

Steven: That confidence comes with you actually having had that discussion with them and training them how to do it, right? Then that way, once they have that consent discussion with the patient, all you would have to do is confirm with the patient when you log on that they are in fact okay with proceeding as you are checking their identifying information.

Yolanda: That's another important point, isn't it?

Steven: Right.

Yolanda: Checking that you are actually speaking with the right person.

Steven: Imagine that. I mean it's kind of intuitive in person but and its perhaps it's less of an issue when you are dealing with a lot of follow up of people that you know but certainly when are seeing someone for the first time, it's a good idea to check that you are indeed speaking to or seeing the right person.

Yolanda: That can be a simple as asking them to hold up their health card to the camera or asking them for their address, date of birth to correlate with the information that you have on file. I mean, you know when I call the credit card company, these are the questions that they ask me to make sure they are speaking to the cardholder.

Steven: Exactly. Speaking about knowing who you are talking to, consider the privacy of the space that you are in.

Yolanda: That's right. You know many of us are providing virtual care from our homes and it's important that our spouses, children, for instance, can't overhear or see what's going on during our consults.

Steven: Yeah, that might be easier said than done.

Yolanda: I know but we do need to do our due diligence and do our best. The kitchen table is probably not a good place.

Steven: I think that would be safe to say, yeah. You know, I add that it might be wise to ask your patient who at their end, may be listening in or watching as well. That way you will be better able to tailor your questions and conversations.

Yolanda: Remember to document these aspects as well.

Steven: Okay, Yolanda there is so much to cover but I think we need to wrap up on this issue.

Yolanda: I know time flies once we get going.

Steven: Right. Could we provide at least a take-home message for members who are exploring this brand new virtual care environment?

Yolanda: So as with all things, focus on your communication skills. Take time to understand your patient's concerns and their expectations.

Steven: Ask questions but let patients ask theirs as well. It's easy to speak over one another and to interrupt each other without visual cues that we are used to having.

Yolanda: For sure. Virtual care can eliminate some or even all of the nonverbal cues that we usually use to help us confirm understanding or satisfaction with an encounter. So, we need to make extra efforts to use explicit verbal communication to fill in those gaps of the nonverbal nuances that we lose with virtual care.

Steven: Let's not assume anything. You don't want to be filling in those gaps based on your own unconscious biases. You may interpret or believe things to have happened that in fact haven't.

Yolanda: So we know this is a lot. Please don't hesitate to call us to discuss your specific concerns or issues with virtual care.

Steven: Certainly these podcasts are not meant to be all-encompassing deep dives into anything in particular. They are meant to be an overview.

Yolanda: And food for thought. So, a reminder to have a look at the COVID—

Steven: The COVID-19 hub on our website.

Yolanda: On our website.

Steven: Lots of frequently asked questions. Chances are if you are asking yourself the question we've heard it before and it might be on our website. That said, don't hesitate to call us. We are always happy to talk to you in person.

Yolanda: Thanks again for joining us today.

Steven: Have a good day everyone.

Yolanda: Bye-bye.

Announcer: These learning materials are for general educational purposes only and are not intended to provide professional medical or legal advice, nor to constitute a "standard of care" for Canadian health care providers.


Read related Perspective article: Providing virtual care during the COVID-19 pandemic

COVID-19: Advance care directives

May 2020 | 18 minutes

During the COVID-19 pandemic, physicians may be deployed to unfamiliar clinical units and may need to have difficult discussions around goals of care that they are not used to having, perhaps even with patients they don’t know. This episode covers key messages that may help you effectively support patients and families who need to make plan of care choices as a result of a COVID-19-related critical illness.

Listen now: Apple Podcasts / SimpleCast / Spotify

Transcript

Dr. Yolanda Madarnas: Hi Steven. Hello everyone.

Dr. Steven Bellemare: Hi Yolanda. Welcome back to our third edition of our special COVID-19 related podcasts.

Yolanda: Yes. So Steven, in the evolving COVID-19 health care setting, I know that physicians are finding themselves having more and more discussion, possibly with patients they don't know at all about goals of care.

Steven: That's right and you know in addition we may end up by virtue of the fact that we are being deployed in some incidences to units where we don't usually work, find ourselves actually needing to have such discussions that we're actually not used to having at all.

Yolanda: While we know it may be difficult and intimidating.

Steven: These conversations for sure are tough at the best of times.

Yolanda: Not having these conversations early before they become necessary actually robs our individual patients of control and choice and might result in medical care that isn't reflective of what is most important to them.

Steven: That's right. So, in this podcast everyone we want to provide you with an overview of some of the issues we see arising out of our medical-legal cases, especially around end of life care, critical illness care and hopefully we will be able to help you identify how you might be most effective in having those critical illness discussions about goals of care, especially if this is not something you are used to doing.

Yolanda: For sure. So, following the principle of a person-centered approach that aims to include the patient's loved ones and the care team when feasible can help physicians feel that they've assisted their patient in making the most appropriate decisions possible.

Steven: So we have three take-home messages for you today. The first one being that it's important to communicate with families and the care team about goals of care early effectively, routinely, and repeatedly.

Yolanda: Our second point would be that it is important to have an approach to ask patients about goals of care. Having this approach is going to make you more likely to do so and might save you time.

Steven: Finally, we want to impress the importance of normalizing the discussion. Normalizing the discussion is going to actually help reduce the patient misunderstandings, fear, and discomfort and result in overall improved satisfaction with the care that's being received.

Yolanda: So, in essence, these end of life discussions are actually part of the job of every physician but end of life and critical illness communication is still challenging even for the most experienced physicians who have these discussions every day.

Steven: Right. So preparing tools to start or structure or even troubleshoot these difficult conversations can actually make it less scary for everyone and actually help us be more likely to have these conversations especially when time may be short in the COVID settings.

Yolanda: So, planning to have these conversations in a timely patient-centered setting can help the process move along and make it easier for patients and may reduce our medical-legal risk.

Steven: You know Yolanda, patients and families are more likely to be more satisfied with the care they receive when they feel heard and involved in the decisions.

Yolanda: Yes, for sure. So take for example Steven a situation that's not uncommon in many of our college complaints. We had a patient who is admitted to an acute care hospital with a straightforward potentially reversible life-threatening illness.

Steven: Okay.

Yolanda: That rapidly deteriorates.

Steven: Alright.

Yolanda: Our patient has previously told us they do not want to pursue supportive care and heroic measures if survival is unlikely and their family had agreed. So the patient is provided with comfort care measures and passes away comfortably. After, the family files a college complaint alleging the care was poor. The college had no criticism of the care per se, saying that it was consistent with the patient's wishes, but there was some criticism of the physician in having fallen short of having had optimal communication with that patient's family, especially when their condition worsened.

Steven: Right. So essentially you are highlighting a common theme in critical illness or end of life care issues, is that the issues are often not about the medicine they are about the communication, right? This highlights the importance of keeping all the players apprised of the situation and making it clear actually how the care is aligned with the patient's advanced directive and sometimes we may take for granted that it is clear and apparent when it's not.

Yolanda: And it's not. Complaints like this do highlight that for us. So, a reminder that because the changes in clinical status can occur quite rapidly it's so important to plan for frequent updates on how things are going. Particularly now in the COVID context which may well mean having to discuss what will and won't be possible depending on the availability of resources and how this might diverge from a patient or family expectations.

Steven: Right. We know that it is not an easy thing to do. It's not an easy thing to address but one of those most frequent issues we hear from families and patients in our college complaints or even in our lawsuits, is the lack of availability of the MRP, the most responsible physician, to discuss the patient's situation, to hear their concerns and explain to them how it is that things are going.

Yolanda: So while we know that the care is delivered many times in teaching hospitals or even in nonteaching institutions by a team where a number of individuals participate in the care. There is an MRP who may delegate a number of things but these discussions are particularly important to be held by the MRP and providing that opportunity to review the state of affairs how things are going and how the care aligns with the patient's advanced directives is a critically important issue.

Steven: Right.

Yolanda: Making the time for this can make all the difference.

Steven: You know it's made all the more important in the context of potentially limited access to resources such as medications like Propofol for instance. It's been in the news recently. Equipment like ventilators and palliative care physicians or even facilities. The appropriate rooms for looking after the patients. So, we've all see how fluid the situation around COVID has been evolved and how one region is completely different from another and how very difficult it is to predict where things are going.

Yolanda: Yeah. It may be that you'll never have to address resource issues as part of the goals of care discussions that you have but keeping your eye on that ball will be important to help you feel prepared to do so if and when the time comes and patients and families are likely going to be aware and understand the limitations through the media, news reports and so on but that communication and adaptability on our part are key especially when deviations from a previously agreed to or expected care plan have to take place because of resource shortages.

Steven: Well, look Yolanda we are already quite far into this broadcast and we haven't even got to take home point one. So, perhaps this is a good place to do that and that message was that we should keep in mind the importance of communicating with families and patients and other caregivers about goals of care early and I don't mean early in the morning here, I mean early in the illness or in the situation effectively and repeatedly even.

Yolanda: While we've used the term end of life at several points here in the podcast, it may be somewhat of a misnomer, it doesn't imply that we should wait until a patient is clearly at the end of their life to have these discussions. Critical illnesses in practice or in theory are an optimal time to bring out and highlight these care goals, as any new serious illness or diagnosis and in the setting of COVID, this might ideally mean discussing it with any high-risk patient in the event they contract the illness.

Steven: Right, before they get it, right. Having these discussions when the threat is theoretical and not imminent is likely to be easier on everyone including us, right, as the physicians.

Yolanda:That's been my experience with my cancer patients, having that discussion long before it's really on the radar.

Steven: Right. Don't get us wrong though, we are not suggesting you start calling patients in your practice out of the blue to find out what their wishes out should they get COVID-19. That will be a bit startling.

Yolanda: Not at all. But that said, it may be wise to raise the issue with them during visits for other issues, especially if they have a comorbidity that does put them at higher risk for serious COVID-19 related complications.

Steven: And in that sense you know, even though you may not end up being the one looking after them, should they get COVID and require admission, your efforts to actually raise the issue ahead of the team may at least have primed them to consider the implications of the diagnosis for their care.

Yolanda: Absolutely. We recognize that many frail or older patients may not actually want aggressive life-prolonging measures and they may prioritize quality of life and actually being able to say goodbye to their families.

Steven: Frank communication is so important.

Yolanda: Absolutely. So explaining the impact of their comorbidity on the likelihood of surviving a COVID-19 or other critical illness can actually allow them to make an informed choice as to their level of care and whatever their decision is, many will at least understand the process better and hopefully feel included and heard.

Steven: Right. You know patients listen to the news. They know that COVID-19 has a high likelihood of poor outcomes in patients with comorbidities. So, looking at it not as something awkward to raise but rather as an opportunity to provide guidance on the proverbial elephant in the room so to speak, may actually help you to be more comfortable in raising the issue.

Yolanda: It's already there. You are not really raising anything new. You are allowing permission to talk about it and explain it because people may actually have a misconception of what their risk and their comorbidities are. But it's important to raise it and allow our patients and their families to participate in that shared decision making.

Steven: Right. It's important to point out here Yolanda that the purpose of an early conversation is not to convince anyone to seek a particular kind of care over another, a least invasive care for instance. Quite to the contrary. It's about setting the context for making the decision that is right for them, isn't it?

Yolanda: Yeah.

Steven: We shouldn't avoid the conversation assuming we will have to convince patients to do something or anything. That would be very adversarial approaching it that way.

Yolanda: Absolutely. So starting with goals of care, raising potential resource issues as an additional consideration as well as the impact of any comorbidities they shoulder, doing so early may actually help us and help our patients align their values with the reality of what might and might not be possible during the COVID-19 crisis.

Steven: Yeah. So, that's part one, right. That's addressing with the patient and getting them to think about what they would like to do if they were to contract COVID-19 but before they get ill.

Yolanda: If those stars align then you are also able to continue being the primary physician tasked with looking after them when they are actually ill, then part two comes into play.

Steven: That's about having the discussions about what is and what is not possible at that particular time.

Yolanda: That's quite difficult to plan for as we've seen over the first eight weeks of this pandemic. Information, situations change at an incredibly fast pace and what was available yesterday may no longer be available today and what you thought wouldn't be available has actually not been as scarce as we anticipated.

Steven: That's right. So, getting back to our case example Yolanda, the issue at play there if you'll recall, right, the family didn't have a line of sight into why decisions were being made for their loved ones and how they actually were consistent with previously expressed wishes.

Yolanda: Yeah. So the takeaway or learnable point here is that frank frequent routine and repeated, not one-off meetings and discussions with patients and their loved ones to explain the situation, the options as they are on that day can make the whole difference between the perception of excellent versus negligent care.

Steven: Right. It's all in the relationships you build, right. It's the feeling of control and choice and being heard that will help the patient and their family feel valued.

Yolanda: And hopefully reduce the medical-legal issues for the physician.

Steven: Provided those conversations you have are also documented.

Yolanda: Absolutely. While we recognize this can be a difficult time with time constraints that we are all subject to and the fact that it's unlikely that families are actually going to be present there in person to meet with you.

Steven: Right. In the context of the pandemic, the family most likely won't be there because of the limitations on visiting.

Yolanda: Yeah. So trying to plan ahead for that gets into our take-home message number two. Having an approach to ask about your patient's goal of care values, their fears, their expectations. May make you more likely to do it and might save time in the long run.

Steven: Right. You know, that makes me think of a lot of the resources available. You are talking about fears and expectations.

Yolanda: Yeah.

Steven: That gets back to the FIFE model of exploring people's feelings, people's ideas about their illness, their function as well as their expectations for the care.

Yolanda: While the association doesn't endorse any particular approach per se, there is a Canadian website, www.planwellguide.com that may be worth a look to get some ideas on how to build an approach to these situations that suits your values.

Steven: Yeah. There are a lot of good resources out there Yolanda. Some of them have videos that you can watch to get a little bit of coaching. Some of them even have talking maps, like road maps. They are essentially scripts if you will.

Yolanda: For these difficult conversations.

Steven: Right, and these are all designed to actually help you be more comfortable and better care for patients and families.

Yolanda: This is well within the context of shared care, shared decision making and we can find this just googling it.

Steven: Yeah. Yeah. That's right. There really is quite a wealth of resources out there.

Yolanda: Out there.

Steven: Finally our third take-home point was that using normalizing language can help put patients at ease and facilitate the sharing of opinions.

Yolanda: For example using the third person. So when people with COVID get worse they have to make decisions about their care. They tell me that it's less stressful when those discussions happen earlier.

Steven: Right. Or even things like most people tell me they don't want to burden their families by requiring them to make those decisions without knowing their wishes.

Yolanda: So we recognize that people are likely to want to be reassured that they or their loved ones aren't being singled out. I'm having this discussion with all my patients right now.

Steven: Right. So normalizing family feelings, like many family members feel helpless in these situations. How do you feel? Can be helpful.

Yolanda: Absolutely. So, in the end, these goal of care discussions are not really made all that different by COVID. They are just happening more often out of necessity and they might be influenced by resource issues. So, in fact, COVID might present us with the opportunity to preemptively have these discussions.

Steven: Right. Indeed. What may be different is that you as the physician may not be used to having those discussions with your patients by virtue of your usual scope of practice or by the fact that COVID is forcing you into those kinds of situations that you normally wouldn't be taking part in.

Yolanda: So we hope that these few tips today might help you feel more comfortable having these discussions, knowing a bit more about the issues at play in the typical end of life cases that are likely to impact patient and family satisfaction with care and thus your medical-legal risk.

Steven: Right. You know Yolanda, if there is one key message that we could share it would the power to just sit in silence. Allowing patients and families time to process and think of questions. It's okay not to fill that space. It actually will feel longer than it actually will be.

Yolanda: While that space is long face to face, recognizing that the family is not likely to be in the room during COVID related care, you're likely to be having some of these conversations on the telephone.

Steven: Yeah.

Yolanda: Which will probably be extra awkward. So you might want to acknowledge that silence explicitly on the phone, validate it and attempt to ease the family's comfort with it and allow them permission and time to think and process what's just been discussed.

Steven: Right. Well, Yolanda, I think if we don't want to be interrupted by the end of the podcast music we are going to have to start wrapping this up here.

Yolanda: Okay.

Steven: Thank you so much for joining me today to talk about this important issue.

Yolanda: Thank you, Steven. Thank you everyone for joining us. Just a reminder to visit the COVID-19 hub on the CMP website and as well please call us anytime to discuss specific issues to your day-to-day. Our podcasts are not meant to be all-encompassing but rather touch on highlights that are meant as food for thought.

Steven: Hopefully these highlights are going to be helpful to you.

Yolanda: We hope so.

Steven: Thanks for joining us.

Yolanda: Thanks again. Bye-bye.

Steven: Bye.

Announcer: These learning materials are for general educational purposes only and are not intended to provide professional medical or legal advice, nor to constitute a "standard of care" for Canadian health care providers.


Read related Perspective article: End-of-life: Planning for compassionate care during COVID‑19

COVID-19: Physician moral distress

May 2020 | 18 minutes

Physicians routinely face challenging situations and difficult decisions. This episode covers why it is important to recognize and manage moral distress and explore various coping strategies that physicians can adopt to stay well.

Listen now: Apple Podcasts / SimpleCast / Spotify

Transcript

Dr. Yolanda Madarnas: Hello everyone. Welcome to the second podcast in the series of the COVID-19 pandemic. I’m Dr. Yolanda Madarnas.

Dr. Steven Bellemare: And I’m Dr. Steven Bellemare.

Yolanda: So Steven, physicians routinely face challenging situations and difficult decision-making processes.

Steven: No, absolutely. And those can, at times, cause moral distress for us and that can occur even more frequently in times of crisis like COVID-19.

Yolanda: We hear from you every day on the phones. I hear you telling me that you’re worried about having to make difficult decisions that you may not have had to make but for the pandemic. So it’s important to learn how to recognize when we may be experiencing that moral distress.

Steven: We hear from you as well that you’re worried about your safety and that of your loved ones. 

Yolanda: And how difficult it is to shift from a patient first ethical framework to a public first one.

Steven: So with this podcast, we thought we’d take the focus a little bit off the medical legal issues and more on physician wellness. We hope to discuss these very normal and common concerns that you have and provide you perhaps, a little bit of a framework to make sure that you help yourself be as well as you can be.

Yolanda: We hope to identify some of the coping strategies that you might tap into to prevent the negative impact on your wellbeing.

Steven: Today, Yolanda, we have a very special guest. We have Dr. Caroline Gérin-Lajoie, who is the Executive Vice-President of Physician Health and Wellness at the Canadian Medical Association. 

Yolanda: Dr. Gérin-Lajoie is also a psychiatrist at the Ottawa Hospital. Welcome Caroline.

Dr. Caroline Gérin-Lajoie: Thank you. I’m happy to be here.

Steven: In Canada, you know we pride ourselves on a system that strives to provide everyone with an equal opportunity to access and receive medical treatment.

Yolanda: So this is possible when there is sufficient resources. Our last podcast dealt with that.

Steven: Indeed.

Yolanda: That the pandemic might force us to triage patients and make difficult decisions about who receives which level of care and under what circumstances.

Steven: And making these resource allocation decisions can be so stressful for people on the front lines.

Yolanda: Particularly when we sometimes feel that we have to make clinical decisions that are influenced by circumstances that are beyond our control.

Steven: Especially so, right? Caroline, can you tell us a little bit what you know about this difficult issue?

Caroline: Having to triage or to go through that process of setting priorities for resource allocation to manage a surge of patients, it can become even more ethically complex in these times of catastrophe, a little bit like what we’re living now with COVID-19.

Steven: Right.

Caroline: And these are the kinds of situations that can lead to moral distress. And when you think about that concept of moral distress, it can be when we feel unable to fulfill what we believe to believe, to be an ethically appropriate or a right course of action, and we can think about it as a psychological response or psychological distress, but that’s specifically related to an experience of moral conflict or of moral constraint. So this is especially likely to occur these days during the COVID-19 period, as well as in other situations where there may be extreme resource limitations that can affect patient care, or even the safety of our health care providers.

Steven: In moral distress, if I understand it correctly, someone feels morally compromised by the impossibility to pursue what they believe is the right course of action. Is that right?

Caroline: Yeah, exactly. So this kind of creates a moral conflict or a situation where you believe that an action, or the lack of action, can contradict their ethical obligations or commitments, or they fail to live up to their own expectation of ethical practice.

Steven: Right.

Yolanda: Caroline, are there common elements to moral distress?

Caroline: Yes, so for example, a feeling of complicity and wrongdoing. So that would be when you believe that you’re doing the wrong thing or that you have very little power to change a situation.

Steven: You know when we speak to physicians about this very issue they often describe the feeling of not being heard, or not feeling that they have a voice. Is that part of that? 

Caroline: Absolutely. And speaking of that lack of voice, that’s when you believe that you have insights and you have knowledge relevant to a situation, but where you feel it’s not heard or it’s not taken seriously.

Steven: So if we experience moral distress at different times or in different scenarios, are those all separate individual experiences or are they somehow cumulative?

Caroline: Actually, Steven, they can be. These repeated situations of moral distress, they leave what we call moral residue and that heightens someone’s level of moral distress in the subsequent experiences that they may have. 

Yolanda: So if I understand correctly, moral residue is the distress that remains when the situation that triggered the moral distress initially, has actually ended.

Caroline: That’s correct. So moral residue is what each one of us carries with us from all of those times in our lives when we feel we are morally compromising ourselves or allowed ourselves to be compromised in the face of a distressing situation. And so if the individuals level of moral distress doesn’t resolve but rather, remains high, it may increase even more the next time that they’re encountering a morally distressing situation and that’s really why it’s so important that we deal with it.

Yolanda: Caroline that sounds a lot like the genesis of burnout and compassion fatigue.

Caroline: That’s a good observation. Actually, we know that moral distress can be related to compassion fatigue, to burnout, and even to depression. So these are things that affect the individual physicians or caregivers, but we also know that moral distress can have an impact on the organizational level and we could see that through patient safety incidents, distancing from patients, and even decreased job satisfaction.

Yolanda: Caroline, could you give us an idea of how a physician might recognize when they’re experiencing moral distress. Is it more than just a feeling?

Caroline: Yeah. And I think it’s important to start by clarifying that moral distress really is not a mental health disorder in itself, but it’s important to manage it well so that it doesn’t lead to complications and those could include mental health issues. It’s also important to know that people experience moral distress in different ways. For some people, it may be very easily manageable, but for other people it can be completely impairing. And you may wonder what some of the symptoms are and these could include things like physical symptoms. So these could be fatigue or headaches, difficulty sleeping. They can also include some emotional symptoms. There could be anger, fear, anxiety, but also behavioural symptoms and these could lead to addictive behaviours, maybe drinking or taking drugs are also influencing our behaviours in relationships with our loved ones.

Steven: You know Caroline, as I hear you list these signs and symptoms, I can’t help but think that some of our listeners, if not a number of our listeners, might actually be recognizing themselves in those descriptions.

Yolanda: For sure.

Caroline: They absolutely could and really the key message here is to be aware of the concept of moral distress and to have a better sense of how to recognize it within themselves but hopefully within other colleagues.

Yolanda: So what could physicians do to minimize the impact of moral distress?

Caroline: You know unfortunately, it is not possible to eliminate the situations that cause moral distress or to eliminate many other challenging situations that we may come across in health care. But there are ways where we can try to mitigate its impact, so remembering that moral distress can involve at least three different levels: the individual physician; the unit, team or department; and also the organization or a system. And what that means is it opens the door to potential ways to ease that experience of moral distress at each one of these different levels.

Steven: That’s very interesting. I’m sure that we couldn’t possibly give advice, deep advice on all of the strategies that we could implement in such a short podcast. But Caroline, I wonder if there’s perhaps, one or two things that we could discuss, perhaps for each level?

Yolanda: So could we start at the individual level, a couple of things that a physician or a health care provider could do.

Caroline: So as an individual, and I would say beyond the basics of health and that would include proper sleep, nutrition and exercise, but within the limit of what’s realistic right now. What I would encourage physicians and health care providers to do is share their emotions and their experiences with people they trust. Whether that’s their team at a team meeting, for example, and these could include sharing emotions like distress, it could be guilt. It could be that sense of unfairness. And the idea is to open up communication and to share the stories about what they went through. I would also encourage people to reach out if they need to, the ethicist working in their environment and that can help you to kind of work through some of these really challenging situations when you encounter them and when they may lead to moral distress.

Steven: It’s really about realizing that we are not alone in this, that you’re not the only person—likely not the only person feeling this. 

Caroline: And it’s leveraging the people in your direct environment to help you cope optimally in these situations. 

Steven: People who can understand you.

Yolanda: Your peers, your colleagues. This may be a little bit more difficult in the days, today. You know a generation ago there was a doctor’s lounge, we could shoot the breeze and chat with our colleagues at the end of a difficult day. That’s no longer as easily or readily available. In fact, absent in some places, so that much more important to dedicate some quality time at some point during the day to exchange these meaningful feelings with our colleagues.

Caroline: And so what that means is the onus is now on us even more so, to do a check-in with ourselves and that if a person recognizes that they are in a high level of distress or having increasing difficulty functioning, they absolutely need to reach out to their family physician, or an employee assistance program if they have one, or even to the provincial physician health program. But at the end of the day, what’s important here is that we learn to treat ourselves with empathy, with self-compassion, and also with self-forgiveness.

Steven: Very good advice there. I mean, we don’t have the time to get into a whole lot of details about managing emotions and cognitive behavioural therapy, but very good point. Caroline, what about team level issues? What are some ways that we can address moral distress there?

Caroline: There’s actually a great opportunity here for leaders to help recognize the impact of moral distress and to try to build in processes to directly address it with their staff. So for example, they may want to hold more regular meetings, and that can be within your department or with other departments and that can help to build this feeling of team cohesion and to help have very clear and timely communication, shared decision-making and this way everyone feels included and part of the experience. Another option could be to hold debrief meetings on a more regular basis, particularly when these morally charged situation occur. So as an example, that could be when there’s a clinical triage decision that needs to be made.

Steven: Or maybe when a patient has died or is about to die and doesn’t have a family member with them. I mean, I know how distressing that it. We hear that a lot and having the opportunity to debrief around that, I think might be helpful.

Caroline: And finally at the team level, it’s important to encourage members to support each other and make sure that no one isolates themselves, and so actively trying to find those people and reach out to offer them support and that can be done by creating a buddy system. And a buddy system is where you just pick someone you trust and you try to do regular check-ins with. And interestingly during COVID, this has been a really popular phenomenon within physician groups.

Yolanda: Interesting. 

Steven: You know I brought up the whole idea of debriefs whenever a patient, for instance, is dying and alone and that causes distress. Yolanda, I think we’ll have more podcasts.

Yolanda: Yeah.

Steven: Later on, we’ll have an opportunity to talk about debriefs. But today’s discussion really does highlight the important role that they play.

Yolanda: Recognizing that it may be difficult to find the time for a debrief because they may not be part of the everyday in many groups, the buddy support system takes on that much more importance and might actually be the easiest one to implement, at least at first. Caroline, what are some of the things that can be done at the organizational level?

Caroline: So we tend to forget this, but the organizations can actually play a really big role in these types of situations, particularly in recognizing and validating that experience of moral distress, but more importantly, I think conveying to health care providers that feeling that we’re in this together and that we have your back. It is so crucial.

Steven: Caroline, thank you so much for raising that point. You know, we may have a lot of listeners who are physician leaders, who are in a position to actually put in place processes to implement some of these recommendations. Is there anything more that you can provide, other little tips, pearls for them?

Caroline: Yeah. Other strategies could include things like being very honest and transparent about the situation at hand. For example, if there was a situation with resource constraints, or to provide really clear guidance on changing policies and procedures and we know that can happen at an extremely rapid pace. They can be very clear with triage criteria, for example, and if ever there was to be a triage process activated, it really should be accompanied by some kind of plan to mitigate the physician or health care provider, moral distress. And just to give a little bit of an example there, hospitals and organizations could create triage teams and what that would do is allow for the separation of the clinical and resource allocation decisions. And what that does is it helps to reduce that moral burden created by the decisions for a specific physician so they don’t have to feel so alone in making these really difficult and emotional decisions. And finally, I would recommend that organizations create guides so that their leaders can provide support for their teams even more easily and make efforts to advertise wellness supports, to encourage peer support as we mentioned, and more importantly, it’s to create the opportunity for people to access those supports and to practice a lot of self-care.

Steven: Sounds like we just can’t take for granted that people will instinctively know how to help themselves and each other, that we have a role as institutions in helping promote that wellness.

Yolanda: One advantage of implementing some of these strategies now in our current circumstances is that when the time comes and this health crisis has abated, some of these processes may become part of the new normal, part of the new structure in which we continue to practice medicine and can only continue to help health care providers and their patients. 

Steven: In fact, you know what I suspect, Yolanda that when all of this is over, it won’t necessarily mean that all will be back to normal, right Caroline?

Caroline: I agree completely. And that’s why I think we should even be using the term “new normal” because we really cannot go back to how we were living medicine prior to two months ago, for example. But what you raise is the importance of the post-COVID period and what we absolutely need to do is ensure that there are supports and resources available to all staff so that we minimize the moral residue and we really try to enhance wellbeing. And in fact, I would say we have an ethical imperative to prepare for that period because we can probably expect a rise in mental health issues and in needs. So we have a duty to make sure that that’s available. And as human beings, one of the ways that we can cope better through these difficult times is to look back and try to learn from what happened and take those learning’s to then move forward and improve the health care system.

Yolanda: Thank you, Caroline. We have covered a lot of territory in a very short podcast, and the intention wasn’t to go in-depth into too many of these aspects. But before we go, are there two distill takeaway points that we can leave our listeners with?

Caroline: Absolutely. So remember, it’s normal to experience moral distress in the context of a pandemic, such as what we’re going through with COVID-19, and just recognizing moral distress is an important first step to then being able to mitigate its impact. And the second thing would be to always remember the multi-level approach to ease our experience of moral distress.

Steven: Well thank you very much, again, Caroline. This was fantastic advice. For our listeners, if you’re looking for more information, you can certainly visit our CMPA COVID hub on our webpage. And Caroline, are there any resources available at the CMA?

Caroline: Absolutely. And this can be accessed through CMA.ca. And on that webpage you will find a section specifically for COVID-19 with a lot of information and resources.

Steven: Well we hope this was helpful to you, our listeners.

Yolanda: And as I said, while it’s a complex topic, we do hope to have provided you with some practical tools that can help you approach this really challenging issue.

Steven: Good-bye, everybody. Stay well.

Yolanda: Good-bye, everyone. Thank you. Stay well.

Caroline: Thank you.

Announcer: These learning materials are for general educational purposes only, and are not intended to provide professional medical or legal advice, nor to constitute a “standard of care” for Canadian health care providers.


Read related Perspective article: Moral distress: The cost of uncertainty during a pandemic

COVID-19: Reasonable care

April 2020 | 15 minutes

A public health emergency may force a shift away from the usual patient-first ethics, to a public-first approach. This episode covers the concept of reasonable care and patient’s best interests to help you make sense of the unusual demands the COVID-19 pandemic may place on you.

Listen now: Apple Podcasts / SimpleCast / Spotify

Transcript

Dr. Steven Bellemare: Welcome to a special edition podcast brought to you in the context of the COVID-19 pandemic.

Dr. Yolanda Madarnas: The CMPA recognizes these are unprecedented times for the Canadian medical community, and how stressful the current events may be for you.

Steven: We really want to be there for you.

Yolanda: We listen to your medical-legal questions and concerns, every weekday on the phones.

Steven: And while we’re not able to be out on the road meeting with you face-to-face to offer education, we thought we could bring it to you virtually through a podcast.

Yolanda: Hello everyone. I’m Dr. Yolanda Madarnas, Physician Advisor and Physician Consulting Services.

Steven: And I’m Dr. Steven Bellemare, Director of the Practice Improvement Department.
Yolanda, there are so many things to talk about in this context, aren’t there?

Yolanda: For sure. Physicians are being asked to make unprecedented decisions. We’re being asked to practice in unfamiliar settings outside of our comfort zone, we’re being asked to come out of retirement to lend a helping hand. We’re providing virtual care for the first time.

Steven: And perhaps, actually, even to change the way we provide care to accommodate the constrained resources, or to protect public health. You know, as physicians, we wonder about our obligations and our rights in the context of this public health emergency. Specifically, one of the things we hear very much at these times is the issue of managing resource scarcity.

Yolanda: So while many of these answers are available through our website, and the new COVID hub on our website, or you can call us for individualized one-on-one advice, but for this podcast we chose to focus on a particularly challenging issue, the one of managing scarce resources.

Steven: You know the Canadian health system and the resources are already stretched thin, but in the context of the pandemic we’ve been pushed to a place where we’ve never been before.

Yolanda: Absolutely. So, envision this as our collective objective being to make the best use of our precious human resources during these extraordinary times. So in today’s podcast, we’re going to focus on two take-home points that the patient’s best interest should really be our guiding light. And when in doubt, focus on the concept of reasonable care.

Steven: We have to keep in mind, though, Yolanda, that we’re dealing with two very complex issues right now in a very short time.

Yolanda: I know. And by no means this, is intended to be a comprehensive review of the topic. It’s really an introduction and touching on some main issues and food-for-thought.

Steven: Yeah. The objective here is not for you to come out after listening to this and say well, okay. I know all there is to know about this. No, no, on the contrary. If you need more, call us, visit the website.

Yolanda: So, one of the issues on everyone’s mind is so how do I balance my patient’s needs with these scarce resources?

Steven: Well, let’s talk about the issue of best interest then.

Yolanda: But it’s such a stressful issue, Steven. We hear news from around the world what’s happening in other countries where physicians are forced to play God and choose who will get scarce resources like a ventilator. Understandably, Canadian physicians will also feel incredibly stressed about that.

Steven: And that’s for certain. And indeed, you know, what we’re learning from the world’s experience every day, and the issues we face are so very fluid that it’s very difficult to keep up with what’s going on.

Yolanda: The issue of scarce resources is not new or unique to the COVID-19 situation, but the pandemic certainly makes it a screening issue now.

Steven: I do think, Yolanda that we can convey a reassuring message for our listeners and that’s that in the few legal cases that touched on the issue of scarcity of resources, we’ve actually seen the courts have an open mind.

Yolanda: That’s right. The courts have been willing to consider the resources available to physicians when assessing whether the standard of care was met.

Steven: The courts in Ontario, for example, have indicated that a doctor can’t reasonably be expected to provide care which is unavailable or impracticable, due to the scarcity of resources.

Yolanda: So that said, it’s not to say that it would be acceptable for us to throw up our arms in despair and say well, it’s a system problem. There’s nothing I can do about it. Within a resource constraint, a physician is still expected to do the best they can for patient and to act reasonably in each circumstance.

Steven: We need to be very clear here, right? Limited resources are not a defence to an allegation of negligence.

Yolanda: Well it may not be defence, but it is a factor in determining whether the care you provided was reasonable under the circumstances.

Steven: That’s right. And that gets to the essence of the first take-home message, Yolanda. The physician’s duty is to look out for the best interest of their patient.

Yolanda: But in a context, you do the best you can under the circumstances.

Steven: Right. The standard is not perfection. It’s reasonableness. And the underlying legal principles that guide how a potential legal action would be adjudicated, remains unchanged. Those are going to stay the same. It’s the application of these principles that will shift.

Yolanda: And we do need to remember that right now, we are in a global emergency health crisis. It is not business as usual. Context matters.

Steven: You know when emergencies are declared, be they by federal Emergencies Act, or provincial or local public health declarations, they may also include directives to provide guidance and legal authority to physicians who are following those orders in good faith, even that the practice might not be the same in non-emergency situations.

Yolanda: So let’s look at an example, Steven. Take a patient in need of a ventilator who presents to hospital A.

Steven: Okay.

Yolanda: Unfortunately, the ICU is full, there are no beds and there are no ventilators available. So what do I do?

Steven: Well I guess based on what we just said, we could think that it might be deemed acceptable to not offer the required care. Well, but it’s not that simple.

Yolanda: You’re right. We do have to ask ourselves: What would a reasonable physician do under these circumstances? And in this case, it would be reasonable to look elsewhere.

Steven: So, look at transfer care to hospital B.

Yolanda: Right. Call around, advocate for your patient. Look for another service corridor.

Steven: And so if in fact, another hospital, say, hospital B, in a different city has available ventilators, perhaps acting as a reasonably competent physician would mean transferring care?

Yolanda: Exactly, Steven. But, let’s push the situation even further.

Steven: Okay.

Yolanda: Now let’s say that all hospitals in the region are overwhelmed. Field hospitals that have been setup are overwhelmed and that no one has ventilators available. So seeking to transfer this patient is no longer feasible.

Steven: And it may no longer be what a reasonable physician would do. So the concept of reasonable care is contextual then.

Yolanda: You’re right, it is.

Steven: And therefore, I take it that taking note of the circumstances surrounding your decision-making is then very important, because what might justify an action in one context, might not otherwise justify it in another.

Yolanda: Absolutely. Look, in the context of a pandemic where clearly we keep seeing media reports about how scarce resources are, how limited options are. There’s no doubt, our patients and their families are well aware of the issue and might be understanding, but it still doesn’t mean that those hard conversations aren’t necessary.

Steven: That’s right.

Yolanda: Noting and documenting the difficult circumstances that play into our decision-making is critical.

Steven: It’s important to remind ourselves again, that the circumstances we’re dealing with here are those of a public health emergency.

Yolanda: Because of those risks involved and because of rationing of resources, we might be asked to do things we might never have considered otherwise. Take for example, being directed by a hospital directive to don personal protective equipment before providing CPR to a patient in a cardiac arrest.

Steven: Right. It seems so counterintuitive to not provide CPR right away. I mean, right now we’re going to have to stop and say no, no, wait a minute. I won’t provide lifesaving treatment like I’ve always done. First, I have to gown and mask and glove. I mean, that seems so counterintuitive.

Yolanda: And yet, in the context of a public health emergency, when we’re directed to do by either a directive or an order in the interest of public health, adapting that standard of care might be justifiable.

Steven: Well, that’s something to wrap our brain around, isn’t it?

Yolanda: It is. But, you know, we’ve seen provincial colleges state that they’re willing to be flexible and reasonable with potential complaints arising in the context of this pandemic.

Steven: That’s right.

Yolanda: And, I think the message here that’s being sent is that while it’s important to continue to offer the best care we can at all times, it’s also not time for dogma.

Steven: Now thankfully, we don’t have to make the difficult decisions we anticipate all by ourselves.

Yolanda: That’s right. Using an established ethical framework can be very helpful.

Steven: And will actually help ensure that decisions made are uniform between health care providers and based on sound principles.

Yolanda: In fact, in various jurisdictions there are frameworks under development right now, as we record this, that are based on principles of fairness and other ethical legal practical considerations. It won’t make difficult conversations any easier, that’s for sure. But, using an approved ethical framework can, maybe, bring us a bit of solace when we have to make a decision to treat someone over another.

Steven: That’s right. So, if your hospital doesn’t have one, it may be that another organization, be it a provincial one or a national one, might have one that your hospital can use. It’s also quite likely that your hospital will provide access to an ethics consultation. So, those are helpful tools that can actually help us make the tough decisions that we dread.

Yolanda: They’re helpful to promote consistent application of these sound ethical principles.

Steven: In the end, though, you know what? Despite the guidance that such frameworks can provide, it’s very likely that you’re going to find it hard to discuss what can and cannot be done with patients and their families.

Yolanda: Of course. There’s no amount of framework that’s going to make these discussions any easier.

Steven: Yeah.

Yolanda: We all hope not to have to get to the point to tell someone that they can’t access the care they would otherwise be able to if it weren’t for the pandemic. But if it does happen, the way we do so is really important.

Steven: Yeah. In the end, when all is said and done, perhaps people might forget what you said specifically, but they’ll remember how you made them feel.

Yolanda: That’s absolutely right, Steven. I have to say that even though we started out the podcast with two separate take-home messages. They’re actually, very intertwined, aren’t they?

Steven: You’re right. And that’s because typically, the patient’s best interests and the concept of reasonable care are very well-aligned. But you know what? When we’re pushed to the limit, like the pandemic, we may actually start to see these two concepts stray a little bit.

Yolanda: And when you simply cannot offer what is in the patient’s best interests, the notion of what is reasonable has to shift.

Steven: And we’re seeing that now in several provinces with directives to postpone elective care and non-essential services, for instance.

Yolanda: And that relates back to that ethical framework we referred to earlier, to help deal with limited resources aiming to protect the public overall. Let’s be clear, though, those frameworks aim to ensure that services aren’t pulled indiscriminately at any one person’s discretion.

Steven: That’s right.

Yolanda: Generally, we look to reallocate resources and make decisions about priorities in a fair and principled manner.

Steven: And so, while the very concept of having to choose who does and does not get access to, say, a ventilator, or the concept of having to delay a cancer surgery, may be hard to accept for physicians who want to provide the best care for their patients. But it may be reasonable to do so in order to comply with the hospital or provincial directive to restrict the use of services in anticipation of a surge in need related to the pandemic.

Yolanda: Yeah. I agree, Steven, but I think that offers little consolation to our listeners and the clinicians out there on the front lines.

Steven: And I agree with you there 100 per cent. We’re living in unprecedented times. Not in our lifetime have we had to face such an acute surge in the need to provide critical care services to patients. And the impact of the pandemic goes way beyond those patients infected with the novel coronavirus, right? It affects care across the board.

Yolanda: And while we understand that we may all, as physicians, be forced to make choices we would never have wanted to make, we do want you to know and remember that the CMPA is here to support you.

Steven: If you keep the best interests of your patients at heart and act reasonably in the circumstances you face on any given day.

Yolanda: That’s really all anyone can ask of you. Do your best under the circumstances.

Steven: Yolanda, I think we’re going to have to bring the podcast to an end here, but before we go, would you have a communication tip to offer our listeners?

Yolanda: I do. I mean, it’s a simple one: take the time. Take the time necessary to build a rapport with your patients, their families. Express empathy, and explain to them the context that you face together and the rationale for your treatment decisions.

Steven: We really can’t forget the human element here.

Yolanda: Absolutely. Steven, do you have a documentation tip for us?

Steven: Well, you know, I would have to say that it’s important to note your efforts to look for other options. If you call another hospital, write it down. If you’re acting under a hospital directive, write it down. If you don’t have the support staff you normally would and that affects your care, write it down. But you know what? Do it professionally, doing it factually. It’s not about judgment. It’s really just about taking note of the circumstances, the difficult circumstances that you’ll be facing at those times.

Yolanda: For sure. And Steven, if I might add: Take notes of those difficult conversations with the patients and their families where you outline the facts and the options available. The same rules about documentation we’ve always emphasized at the CMPA will continue to apply as usual and will serve you well in challenging circumstances like this.

Steven: That’s right. Well that’s all we had for today. Thanks for joining us. We hope this was helpful to you. You’ll find additional up-to-dated resources on the COVID-19 hub on our website. If you have any other questions, though, please contact us.

Yolanda: Please call us.

Steven: Our number is 1-800-267-6522. We’re here to provide you with support, clarity and guidance in these unprecedented times.

Yolanda: Take care, everyone.

Steven: And be well.

Announcer: These learning materials are for general educational purposes only, and are not intended to provide professional medical or legal advice, nor to constitute a “standard of care” for Canadian health care providers.


Read related Perspective article: Scarce resources: Caring for patients during COVID-19

Disclaimer

This podcast if for general educational purposes only, and is not intended to provide professional medical or legal advice, nor to constitute a standard of care for Canadian health care providers. If you’re a CMPA member and need medical-legal advice or assistance, please contact us at 1-800-267-6522.