White paper—Integrating virtual care in practice: Medico-legal considerations for safe medical care

Published: August 2022

The COVID-19 pandemic gave rise to a remarkable increase in the use of virtual care. Managing the medico-legal risks to physicians in the transition from a primarily in-person care model to a hybrid model of both in-person and virtual care will require careful attention and collaboration. This paper seeks to assist in that transition by making recommendations on a number of pertinent issues, and describes how the CMPA will play an active role in continuing to promote the safe, effective and sustainable delivery of care in this new environment.

In this context, the term “virtual care” is used to encompass care provided when the physician and their patient are not physically together in the same room. Whether by telephone, videoconferencing, email or text messaging, virtual care has been embraced by many for the convenience it affords and for its ability to enhance access to care. The challenge is to ensure that these benefits are not outweighed by diminished quality and safety of patient care or by heightened medico-legal risks.

Despite its increased use, access to virtual care is not yet universal nor equitable and there remain challenges, including:

  • a fragmented approach across the country with respect to interprovincial licensure requirements;
  • inconsistency in standards and guidelines regarding when it is reasonable to use virtual care;
  • lack of proper infrastructure and training on the various modalities of virtual care; and
  • lack of access to secure virtual care platforms.

In addition, concerns have been raised about virtual care negatively affecting the quality of the doctor-patient relationship and its potential for serving as an inappropriate substitute to in-person care. All of these issues influence the effectiveness of virtual care and can possibly lead to patient harm.

Virtual care will continue to evolve and play an important role in the provision of medical care. Optimizing its effectiveness and safety, while also reducing medico-legal risks for providers of virtual care, must be a priority. The CMPA is eager to leverage its research and analytical expertise to gain and share insights that affect the safety of care with governments, agencies, medical regulatory authorities (Colleges), specialty societies and provincial/territorial medical associations. The CMPA can also share these insights with members through risk management information and education.

CMPA—A partner in practice, a partner for safety

The CMPA believes that coordinated action is required to integrate virtual care as a safe modality in the future of medical care delivery. To that effect, the CMPA offers the following recommendations:

1. Develop consistent clinical and professional standards and licensure requirements

The CMPA recommends collaboration among the various provincial/territorial medical regulatory authorities (Colleges) and specialty societies in the development of clear and consistent professional and clinical guidelines and standards around the delivery of virtual care. The Colleges should also adopt consistent licensure requirements for virtual care delivered from another province or territory. Consistency can help harmonize practices across provinces and territories, contribute to promoting patient safety, and decrease medico-legal risk.

Physicians must be allowed to continue to use their professional judgment about whether virtual care is appropriate in the circumstances of each patient. However, guidelines and standards can help physicians make these decisions in a way that enhances both access to, and safety of, care and minimizes medico-legal risk.

While it is not the CMPA’s role to set standards of care, we encourage national specialty societies, Colleges and other healthcare organizations to develop clear specialty-specific clinical practice guidelines and professional standards that are consistent across the country and that support the safe integration of virtual care with in-person care. In particular, physicians would benefit from practical guidance regarding the circumstances in which it is generally reasonable to consider the use of virtual care. Such guidance should address:

  • considerations for deciding whether to use virtual or in-person care, including examples of the types of clinical issues and encounters that are typically well suited to virtual care on the basis of practice type, clinical scenario and patient population;
  • the media that should be used depending on the situation (e.g. telephone, videoconferencing, mobile applications, electronic communication – in real time or asynchronous);
  • the features virtual care platforms must offer; and
  • strategies for integrating virtual and in-person care modalities.

With the expansion of virtual care, physicians have greater flexibility about where to practice. However, there is currently a fragmented approach across the country in the provincial/territorial licensure requirements for physicians providing care from another province or territory. A consistent and clear approach to the application of College standards and policies is necessary to support physicians practising virtual care outside their home province/territory.

Efforts to adopt consistent requirements and to clarify the applicable standards in these circumstances would go a long way toward removing the administrative burden for physicians providing care between provinces/territories, particularly where there are significant differences between the standards in two or more jurisdictions. In addition, harmonization of licensure standards may provide the additional benefit of helping address the Canadian healthcare human resource crisis by encouraging physicians to offer virtual care services in more than one jurisdiction.

2. Implement proper infrastructure

The CMPA recommends that governments continue to invest in improvements to infrastructure, hardware, software and high-speed internet in order for virtual care to remain viable in the long term. Data interoperability is also key for effective and efficient virtual care.

Without proper infrastructure, the effectiveness and expansion of virtual care will be stifled. Not only must the technology be reliable, it should also easily integrate into existing electronic medical records and electronic health records. For patients, the technology must also be easy to use and readily accessible, which includes reliable broadband internet and cellular service in all communities.

In addition to investments in infrastructure, appropriate liability protection for damages flowing from technology and communication failures is essential. It is not appropriate for virtual care platform providers to limit or exclude their liability for any acts or omissions that could result in injury to a patient or some other third party.

Adequate provider compensation for virtual care is necessary but remuneration models need to be carefully considered so that they do not incentivize virtual care over in-person care. Remuneration models must be designed to allow healthcare providers the ability to select the modality that is most appropriate for the circumstances, which includes their technological capabilities as well as their patient’s preference.

3. Address privacy and security issues

The CMPA recommends the development of consistent and clear guidance on the necessary and practical steps that should be taken by physicians to meet consent, privacy and security requirements in the delivery of virtual care, including statutory privacy and security requirements.

Virtual care can present unique challenges to patient privacy and confidentiality. Colleges and privacy commissioners should provide clear guidance on steps physicians can take to meet their privacy and security obligations, especially in circumstances of providing interprovincial/territorial virtual care. This guidance should include practical steps for selecting appropriate virtual care platforms and vendors, including what technology has appropriate security standards to meet statutory requirements. Each province and territory should develop vendor standards and compliance mechanisms, which set out mandatory requirements that must be satisfied for a product or service to be verified as safe and secure. As new products are verified, they should be added to a list published online to help physicians make their selection of an appropriate vendor.

4. Serve patients’ interests

The CMPA recommends that existing processes for managing follow-up care, making investigation requests, and using documentation processes designed for in-person care, be modified to also accommodate virtual clinical encounters.

Patient preference and autonomy should continue to be respected in the context of virtual care. However, virtual care should be offered only when appropriate in the circumstances and when it will meet the patient’s needs. In deciding whether to provide virtual care to their patients, physicians should be guided by what is in the patient’s best interest. While this may include convenience, more importantly it should be based on the safety of the medical care to be provided.

Colleges have made it clear that the standard of care expected of physicians remains the same, whether providing in-person or virtual care.

As the CMPA has previously published, there is a strong association between patient safety incidents and medico-legal events. For example, the absence of an appropriate history and physical exam in the exploration of a differential diagnosis is a well-documented, prevailing cause of diagnostic error leading to patient harm. Virtual care may not lend itself well to taking an appropriate history or to conducting an appropriate physical exam. As such, access to in-person visits or other services should continue to be readily available when those options are deemed by the physician to be more appropriate, or when patients voice a preference for an in-person assessment.

5. Provide professional development and technical training

Increased reliance on technologies like virtual care is a driver of physician retirement. In the context of the human health resource crisis Canada faces, we encourage governments to work with relevant stakeholders to ensure healthcare providers are equipped with the necessary supports and knowledge needed to use and integrate virtual care solutions in their practices.

The CMPA recommends that education on providing good, safe virtual care be incorporated into medical school curriculums in undergraduate, graduate and continuing professional development programs. Similarly, governments should promote digital health literacy for the general population. Medical care is increasingly being viewed by the public as a service industry, driven by convenience. It is critical that governments educate the public about the uniqueness and importance of the doctor-patient relationship and about the role of virtual care and its limitations. As organizations develop new professional and clinical standards to guide the provision of virtual care – and as new technologies and delivery modalities are developed – timely and accessible educational programs will be required to support physicians and their patients in using the various modalities safely and effectively.

6. Adopt a collaborative approach

The CMPA recommends a national strategy on virtual care.

By way of example, we recommend a collaborative approach to collect and analyze data regarding the use of virtual care, to allow all healthcare providers to maximize opportunities and minimize risk. Collaborative data collection and sharing can help identify and address patient safety risks and guide the development of mitigating measures tailored to these emerging risks.

National medical organizations such as FMRAC and/or the CMA could also take the lead in facilitating platforms for discussion on adopting a national strategy for regulation and governance of virtual care.

CMPA—Part of the solution

As physicians continue to integrate virtual care into their practices in new ways and more than ever before, the CMPA is committed to playing an active role in continuing to promote the safe, effective and sustainable delivery of virtual care.

As the CMPA modernizes its offerings, we remain committed to providing timely medico-legal advice and assistance to our members who face medico-legal problems, including as they learn to effectively leverage the benefits of virtual care and mitigate its risks.

Over the next several years, the CMPA will focus on:

1. Provision of medico-legal protection

In accordance with our principles of assistance, we are committed to continuing to provide medico-legal assistance to eligible members who deliver care virtually to Canadian patients when both the member and the patient are located in Canada. Physicians who provide care to patients while either the physician or the patient are outside of Canada should contact the CMPA to confirm their eligibility for assistance and discuss ways to minimize their medico-legal risk and improve patient safety. The CMPA is further committed to regularly reviewing its principles of assistance to ensure they remain reflective of developments in the evolving healthcare environment.

2. Learning

The CMPA plays an active role in the development and delivery of risk management programs that promote safe virtual care. We will leverage our data to develop high-quality, accredited, and evidence-based learning programs to support the safe delivery of virtual care and to mitigate the medico-legal risks associated with its use.

3. Advocacy

We will continue to engage as a trusted partner with stakeholder organizations to foster the consideration of medico-legal risks and patient safety in the development of strategies, policies, guidelines and regulations concerning virtual care.

4. Data collection and sharing

The CMPA is committed to continuing to collaborate and share its aggregate medico-legal data to enhance the safety of virtual care. We will refine our data collection and publications to assist members to better understand the patient safety and medico-legal risks related to the use of virtual care.

CMPA—Here for you

In the context of the healthcare human resource crisis and in the wake of the COVID-19 pandemic, we believe that virtual care can greatly assist in improving access to healthcare. We are committed to working with our members and stakeholders to do our part in designing and supporting a system that fosters sustainable approaches to the delivery of effective and safe virtual care for Canadians.