During COVID-19, Telemedicine blossomed in Canada as well as in other countries. Private enterprise (platforms operated by non-physicians and Nurse Practitioners) became active in this area. This blog addresses issues seen by patients who are treated via telemedicine and issues facing physicians who offer these services.
In Canada, Colleges of Physicians and Surgeons regulate licenced physicians and Colleges of Nurses regulate Nurse Practitioners (Practitioners) (the Colleges of Physicians and Surgeons and the Colleges of Nurses will collectively be referred to as Colleges). These Colleges regulate the practice of telemedicine by licenced Practitioners. One must not assume Colleges are uniform in how each govern the practice of telemedicine. Thus, it is exceedingly important for Practitioners of telemedicine to be familiar and keep up to date with the Standards of Practice of their respective Colleges. Practitioners offering telemedicine services outside the home province/territory in which they are received must know the Standards of Practice in those provinces/territories.
Practitioners in Canada have had little to no experience dealing with private companies in relation to the provisions of medical services. Telemedicine has put a spotlight on some gaps in the knowledge of both Practitioners and telemedicine companies that hire Practitioners to provide health care services to patients utilizing a company's platform. At a primary level, companies are business driven and, understandably, start businesses to generate profit. Practitioners see the value to patients of telemedicine in that access to health service occur in a timely fashion without the need to travel to attend with Practitioners in person. Some companies do not recognize how highly regulated the practice of medicine is in Canada in the areas such as privacy, medical record documentation and storage of patient information.
Practitioners might assume the companies through whose platforms they provide medical care to patients are fully conversant with the Standards of Practice and the heavy regulatory obligations of Practitioners. Examples include Practitioners' obligations to ensure patient confidentiality and security of records created at patient encounters; the need for a platform used for patient encounters to be secure; and the need to ensure that patient medical information's remains in Canada, but when stored outside Canada strict rules must be followed.
Colleges only have the power to regulate their members. They have no power to regulate companies providing telemedicine platforms. Therefore, if patients are unhappy about the medical services provided to them they can complain to the relevant College either in their home province or to the College in the Practitioner's province/territory. It is the Practitioner who must answer any complaint against them. The outcome of complaining against Practitioners can be serious including loss of their licence to practice medicine.
Established various case law
Example one
A physician faced several charges, including allegations of disregarding the governance of the College of Physicians and Surgeons of Manitoba (College). The physician was a conditional registrant with the College and practiced as a family physician under supervision at a clinic in Manitoba. In 2019, the physician gave certain Undertakings to the College, including refraining from solo practice, maintaining the presence of a female chaperone during interactions with female patients and practicing solely at designated clinics (Undertakings).1
Due to COVID-19, modifications were made to the undertakings to accommodate telemedicine practice and remote supervision. The requirement for a chaperone during virtual visits remained unchanged. Nevertheless, the physician continued to treat female patients, both virtually and in-person, without adhering to the chaperone requirement.2
The College considered the unusual circumstances related to COVID-19 and the possible ambiguity of the requirements of telemedicine. However, any ambiguity was the physician's responsibility to seek clarification from the College. Ultimately, the College's Standards must be met without exception, even amidst the ambiguity and stress induced by COVID-19 telemedicine requirements.3 4
Due to the foregoing charges, as well as others not detailed here, the College Panel ordered the revocation of the physician's registration, along with a fine of CA$40,000 and an additional CA$20,000 fee should the physician seek readmission to the College.5
Example two
The physician faced a charge of committing an act of professional misconduct by failing to uphold the standards of practice within the profession. Among other charges, the College of Physicians and Surgeons of Ontario (Ontario College) found that the physician lacked the required knowledge as to whether his electronic correspondence and patient files were encrypted or stored in a secure fashion, despite the fact that he conducted an extensive telemedicine practice from Italy for several months each year.6
It is important to note that the issues related to the physician's Telehealth practice were only a portion of a larger list of charges. In the end, the physician was ordered to resign from the Ontario College and never reapply or apply to any other jurisdiction. Additionally, the physician was ordered to pay a fee of CA$10,370.
Example three
A physician appealed the decision by the Ontario College to the Health Professions Appeal and Review Board (Board). The physician asserted that the Ontario College should be directed to conduct a comprehensive investigation into the complaint.
The physician worked for a franchise telemedicine clinic where on-site assistants performed tasks delegated by off-site physicians. During a clinic appointment, an assistant used the physician's name to prescribe a patient antibiotics, despite the physician having never been contacted about or engaged in the treatment. The patient complained to the Ontario College. When the patient was wrongly referred to the emergency room by an assistant during a second visit, again without physician consultation, the patient complained to the Ontario College.
The Ontario College's initial investigation assumed the physician's involvement and required the physician to attend the Ontario College to be cautioned regarding his failure to perform a physical assessment and inappropriately providing a prescription via telemedicine to the patient. However, the Board was skeptical of the physician's direct role, suggesting the assistant might have independently managed the appointments.
The Ontario College additionally informed the physician about physicians' personal responsibility for appropriate delegation of controlled acts, including confirming the delegate's training. It also emphasized rectifying clinic policies, such as the inappropriate "one issue per visit policy" in this case, to align with Ontario College standards.7
The primary concern in this case, as concluded by the Board, pertained to the unexamined systematic problems within the telemedicine model employed by the Clinic. Specifically, the Board highlighted the need for further examination of the accountability mechanisms governing unregulated assistants and the role of physicians in providing telemedicine services. Consequently, the Board recommended that the Ontario College re-evaluate the issue and verify the accurate identification of the responsible physician.8
Example four
The physician worked at a clinic where a nurse practitioner (Nurse) conducted in-person house call appointments, with the physician providing electronic support when necessary. These visits were billed under the physician's name to Manitoba Health. The physician claimed to have been informed that a pervious physician at the clinic had followed a similar arrangement, supposedly acceptable to Manitoba Health as long as the physician remained reachable by telephone.9
The physician argued he had seen other physicians use nurses without direct supervision in a previous job, which made the proposed arrangement seem consistent with his past experience. However, the physician admitted that he did not independently inquire about whether the arrangement was acceptable to Manitoba Health, noting he had not given it much thought.10 After a year of practicing in this manner, the physician became aware that having a camera available was required to comply with the requirements of Manitoba Health. A camera system was adopted shortly after but was not used consistently.
The physician was also expected to review the Nurse's electronic appointment files. However, this was not occurring consistently and since the Nurse had access to the physician's password, there were concerns about the Nurse signing charts without his knowledge.
The College concluded the physician's actions constituted professional misconduct and a violation of the College's requirements. The physician was directed to pay costs and fined CA $30,000. The physician's license was suspended for five months and the circumstances of the case, including the physician's name, were to be publicly disclosed.
Conclusion
For companies currently offering the services of Practitioners through their platforms, it is essential that they be fully conversant with the regulations governing Practitioners.
Practitioners ought to seek legal advice from lawyers who are fully conversant with not only the regulatory model but also with the contracts Practitioners are asked to enter into with corporations offering telemedicine.
The results of following the above is that both Companies and the Practitioners must each be fully conversant with their respective responsibilities and as importantly their responsibilities to the patients they serve through telemedicine.
Footnotes
1. Din, Re, 2022 CarswellMan 268 (MB CPSDC) at para 5.
2. Ibid at paras 7-9.
3. Ibid at para 48.
4. Din, Re, 2022 CarswellMan 269 (MB CPSDC) at para 70.
5. Ibid at para 90.
6. Ontario (College of Physicians and Surgeons of Ontario) v Hyge, 2019 ONCPSD 48 at para 2.
7. A.J.S. v M.K.F., 2017 CanLii 66303 at paras 3 and 34.
8. Ibid at paras 51-55.
9. Kloppers (Re), 2014 CanLii 56884 (MB CPSDC) at paras 2-3
10. Ibid at para 1.
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