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The good, bad and risky: Physician obligations during COVID

Tuesday, May 26, 2020 @ 8:31 AM | By Joël Roy

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Joël Roy %>
Joël Roy
We often hear that one of the silver linings of this COVID-19 pandemic will be increased access to health-care professionals through technological innovations such as telemedicine and other remote care solutions. Indeed, the pressures brought by the disease on hospitals and traditional care facilities, whether actual or anticipated, have facilitated this general embrace of technology as a fundamental partner of modern health care.

Yet, as one is sometimes brutally reminded, the law does not adapt as quickly as technology does, and instances of fundamental change are often accompanied by legal uncertainty surrounding the new rules of the game. In this present case, what are the obligations of physicians engaging in telemedicine activities? Should standards of practice be adapted to this new reality? Perhaps more generally, how risky is it for physicians to engage in this brave new world of more accessible, remote practice?

In order to provide its members with a sketch of the new rules at play, the Quebec College of Physicians (QCP) rushed to publish an update of its guide of good practices pertaining to telemedicine. Some might say this was about time, as the last edition dated back to 2015.

Despite its consultative and generally non-binding nature, it is generally understood that such guides do represent what the college deems to be right, and therefore what conduct syndics are generally to expect of member physicians. Now, while the guide does offer a lot of information on proper telemedicine practice, it provides little assistance on confidentiality and data security issues, and it only recommends certain software solutions as being “acceptable,” while others are not. Of course, the guide clearly states that such issues fall on physicians and invites them to consult “network providers” or “telecommunication experts” should any doubt arise. Strangely enough, the guide does nothing to describe what such expertise would entail, nor does it care to define what adequate security or privacy policy looks like.

What is more, in the recent decision in Médecins (Ordre professionnel des) c. Ginsberg, 2020 QCCDMD 12, the QCP’s Disciplinary Council stated very clearly that “whatever the method of communication used by the doctor, be it a consultation in person or through technological means, the ethical requirement to establish a diagnosis with the greatest attention ... remains the same.” Though the facts of this case precede COVID-19, it appears that it is not because the state — or even the QCP itself — pushes physicians towards telemedicine that the latter should expect any modulation of their professional obligations.

Yet, one could argue that patients who engage in telemedicine consent to care that will be inherently limited by the medium through which it is provided. This notably means a less thorough physical examination, the potential of data breaches and/or loss of confidentiality, and an increased reliance on the patient’s own perceptions to establish a diagnosis. In the COVID-19 context, this also means avoiding the potential risks of infection brought by an in-person visit, while also being generally timelier and more efficient than a trip to the clinic or ER.

Depending on patient preferences and circumstances, the advantages might outweigh the risks, and the latter may therefore make the full and informed choice to engage in telemedicine despite its inherent flaws. Sadly, consent is not always a defence in front of disciplinary councils, and the issue simply was not raised in the aforementioned Ginsberg decision.

Interestingly, the council’s decision also seems to do away with one of civil liability’s key tests in medical matters. Indeed, civil case law in Quebec clearly states that standard of care is to be established objectively in reference to a normally prudent and diligent physician placed in the same circumstances, such as Steinberg c. Mitnick 2016 QCCS 4749. This inclusion of context as part of the legal test shows that not all consultations are the same, and that there is room to modulate the intensity of one’s obligation depending on the particulars of each case. What, then, of the inherent limitations of telemedicine? What, then, of a practice that might be slightly less accurate and/or secure, but cheaper, more efficient and generally timelier?

The worst we could do to stifle innovation in medical care is to remain cloistered in our ivory towers. Many physicians are willing to try new things to help resolve the chronic accessibility problems of our health-care system, but certainly not at the cost of their right to practise. Are we ready to do away with telemedicine and other innovative practices simply because physicians are scared of the disciplinary consequences?

Clearly, ethics and moral imperatives should not change regardless of the medium used, but could we work to understand that sometimes — especially during world pandemics — the perfect might be the enemy of the good? After all, the protection of the public just might demand no less.  

Joël Roy is an attorney at Mercier Leduc specializing in ethics and disciplinary law in the context of medical technologies and AI.

Photo credit / AndreyPopov ISTOCKPHOTO.COM

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