Published March 2020
Many organizations, governments, hospitals and clinics are reviewing and developing plans for potential or declared pandemics, such as COVID-19. A major pandemic may leave large numbers of Canadians ill and have a major impact on physician practices. Already, many physicians have been asked to contribute to preparations for a pandemic (i.e. COVID-19) or in anticipation of other catastrophic events.
Some physicians have expressed concerns about being asked to assume responsibilities outside of their usual role and location of practice.
As with any critical medical challenge, physicians should focus on practising medicine to the best of their ability. CMPA members may be comforted by the knowledge that the Association will exercise its discretion to extend assistance in the event of medical-legal difficulties arising from the provision of such care. The CMPA takes very seriously its commitment to being valued as a vital component of the Canadian healthcare system by providing comprehensive medical liability protection.
What is a catastrophe or public health emergency?
Developing a clear definition of a catastrophic event or public health emergency is challenging. A possible definition might be an urgent and critical situation of a temporary nature that seriously endangers the lives, health and/or safety of the population. It would require prompt action beyond normal procedures to prevent or limit health consequences to the affected population. Such events are usually promptly recognized and lead to the initiation of emergency responses by virtually all involved authorities. Examples of recent North American catastrophic events include the 9/11 attacks, Hurricane Katrina, H1N1, and COVID-19.
The CMPA's assistance
It is challenging to predict all of the types of medical-legal difficulty that CMPA members may face arising from the provision of medical care in relation to pandemics and catastrophic events. The Association will make every effort to maintain open lines of communication with its members during these events regarding its scope of assistance. The CMPA recognizes that it may not always be possible for members to contact the Association before they become engaged in responding to a catastrophic event. However, if feasible, members who have any questions about their eligibility for assistance are encouraged to discuss their concerns with the Association before providing care.
When a catastrophic event arises, members may be called on to provide medical care in jurisdictions in which they are not licensed to practise medicine. In such circumstances the Association encourages members to seek clarification regarding licensure from the medical regulatory authority (College) in the jurisdiction where they are called upon to provide medical care. The Association is aware that a number of Colleges in Canada are currently working to address these types of licensing issues.
In the event of a complaint to the College concerning an allegation that the member (who provided care in relation to a catastrophic event) failed to obtain a license to practise medicine in the jurisdiction, the member will generally be eligible for assistance.
The CMPA recognizes that where members provide medical care in a jurisdiction in which they are not licensed, they will likely be providing care outside of the province or region where their CMPA membership fees were determined. In these circumstances, the Association would generally exercise its discretion to assist a member with a legal matter even if the matter arose from the provision of care in a province or territory outside the member's designated province of work.
It is possible that retired physicians, physicians who are in Canada but are unlicensed, or even medical students may be called on in a prolonged and severe disaster. To be eligible for CMPA assistance, a physician must be licensed to practice medicine in Canada and be a member of the CMPA at the time the care is provided.
CMPA type of work categories
The CMPA is aware of numerous emergency/pandemic planning initiatives underway in Canada. Some plans may specify that members, during a catastrophe, provide medical care outside of their usual field of practice. If such a plan requires members provide services for which they are not fully qualified, it would be prudent for these members to seek specific training in advance of the emergency/pandemic. The Association encourages such members to seek clarification from the College regarding any licensing issues that may arise from providing medical care outside of their field of practice.
In the event of a complaint to the College alleging the member provided care (in relation to a catastrophic event) outside of his/her usual field of practice, the member will generally be eligible for assistance from the CMPA.
Such work may also fall outside of the CMPA type of work category on which the member's fees were determined. In these circumstances, the Association would, generally, exercise its discretion and assist a member with a legal matter, even if the matter arises from the provision of care outside the member's designated CMPA type of work category.
Duration of assistance
The length of time during which members are engaged in assisting with a catastrophic event will depend on the type of event. Members who continue to provide care outside their usual practice arrangement, beyond the declared duration of the event, should contact the CMPA to discuss their continued eligibility in their new practice situation.
Preparing a physician's practice
Under pandemic/catastrophic conditions, physicians' office practices would likely be seriously affected.
Physicians are encouraged to prepare themselves and their practices. This may include familiarizing themselves with the recommendations and guidelines issued by relevant authorities and agencies. In light of those recommendations, they should also adopt appropriate procedures and obtain the required supplies.
Patient care concerns
Physicians may require help in coping with potentially large numbers of sick or injured patients, and so may delegate more medical acts to staff.1 It may not be necessary or possible for physicians to see patients directly in their offices; however, physicians can still provide patients with advice by telephone, mobile device, through virtual care, or in “the field.” These interactions should be documented in the medical record.
In a catastrophe, many patients may require hospitalization and even critical care and life support. Hospitals may quickly become challenged to provide care in all cases, resulting in some very ill patients being managed in the community. Doctors may well face challenges treating such patients. They may be asked to perform functions that are not part of their usual practice. They would be expected to act in a professional manner, doing what is reasonable under such exceptional circumstances.
A key principle for physicians to remember is their professional obligation requires them to act in the best interests of their patients. Physicians should make reasonable attempts to obtain medical care for their patients even in a time of scarce resources. As always, documentation by physicians of the facts and circumstances of each case and their rationale for the medical decisions should be a priority for patient care. This would be invaluable in the event of medical-legal developments in the future when memories may have faded about working conditions at the time.
A shortage of supplies (e.g., antivirals, vaccines, personal protective equipment, and antiseptic solutions, etc.), medical personnel and hospital beds may develop during a catastrophe. Physicians and other healthcare workers may need to adapt and be resourceful in a rapidly changing and challenging environment.
Physicians bring unique medical expertise and insight to pandemic preparedness discussions. Many physicians participate in formulating pandemic preparedness policies for a variety of organizations such as hospitals, health authorities, or other institutions. The CMPA does not generally extend assistance to defend policies, procedures or other directives established by committees working on behalf of other organizations. Members should look to the organization for such assistance. However, should there be an allegation that the medical input provided by the member to the committee or organization was negligent, then the member would generally be eligible for assistance from the CMPA in respect of that medical contribution.
The bottom line
- The CMPA will continue to provide members with liability protection for medical-legal difficulties arising as a result of care provided in Canada during public health emergencies and catastrophic events.
- In a catastrophic event, the Association would generally exercise its discretion to extend assistance to members who provide medical care outside their usual field of practice or who provide care in Canada, but outside their designated province of work.
- Physicians are encouraged to prepare themselves and their practices for a possible pandemic/catastrophic event. This may include familiarizing themselves with the recommendations and guidelines issued by relevant authorities and agencies, adopting appropriate procedures and obtaining required supplies.
- Despite the challenging conditions of a pandemic/catastrophic event, physicians will be expected to continue to act professionally on behalf of their patients.
- Members should document their rationale for decisions under crisis situations to assist in the event of medical-legal difficulties.
- Physicians' participation in pandemic preparations may be the best way to bring a physician perspective to the discussions.
In Québec, health professionals are only permitted to perform acts authorized by their relevant governing legislation and in accordance with specified requirements, if any. Accordingly, Québec physicians can only request that another health professional perform a reserved act if the legislation governing this other health professional authorizes them to perform that act.