Occasionally, physicians may be asked to provide medical care outside of their area of expertise. During the COVID-19 pandemic, for example, more physicians have been asked to fill-in on the ICU and in long-term care facilities. What are your rights as a physician? How can you best handle the situation? How do you ensure your patients’ safety? This episode covers these – and other questions – related to the risks and responsibilities when covering other specialties.
Announcer: You’re listening CMPA: Practically Speaking.
Dr. Steven Bellemare: Hello everybody, welcome back. I’m Steven Bellemare.
Dr. Yolanda Madarnas: Hi everyone, Yolanda Madarnas here.
Steven: Nice to see you, Yolanda.
Yolanda: It’s good to see you, Steven. Listen, I’ve been getting an awful lot of calls lately from physicians who find themselves being redeployed to work in areas that are not their usual scope of practice.
Steven: Oh that’s an issue for sure, I agree.
Yolanda: So members routinely ask me as part of these conversations, you know, can they do that? Can they force me to do this? Am I allowed to say no?
Steven: Or actually, is it safe for me to do that, right? Occasionally, and hopefully, not too often, it may be necessary for you to provide some care outside of your area of expertise, outside of your scope of practice.
Yolanda: And that’s the scope of this podcast.
Steven: No pun intended.
Yolanda: We hope to address some of the medical-legal considerations for physicians who are facing the reality of practicing outside of their scope of practice.
Steven: But let’s keep in mind, Yolanda, not all working out of scope situations are created equal and we also have to touch on that.
Yolanda: And we will in the course of the podcast. So, indeed, you know, this issue has really been very topical, front line in the news with the COVID-19 pandemic and physicians being asked to fill-in on the ICU, the intensive units and in long-term care facilities, for example.
Steven: But you know it’s not unique to the pandemic and other health care crises. We’ve heard about this before when hospitals merged, for instance, or when their human resources or other resource constraints are a problem.
Yolanda: Yeah. And although not quite the same, you know the infamous announcement on the overhead speaker onboard a commercial flight: Is there a doctor onboard?
Steven: Yes.
Yolanda: Raises some of the similar considerations.
Steven: Right. All these situations have one thing in common, right?
Yolanda: At the very least, it’s STRESS in capital letters.
Steven: Absolutely.
Yolanda: It can be incredibly stressful and very destabilizing for a physician to be asked to provide care that you’re either rusty or haven’t provided in a long time, or is clearly not your usual bread and butter. And there are also some shared medical-legal considerations in these different scenarios.
Steven: Right. So why don’t we start with defining what exactly we mean by scope of practice, shall we?
Yolanda: Well, simply stated, it’s what you trained for and what you were hired for.
Steven: Sure, the procedures, the activities, the processes that a health care practitioner is permitted to undertake in keeping with the terms of their professional license or their privileges in hospital, for instance.
Yolanda: And even thinking back to the older process of licensing physicians when rotating internships were the norm, so unrestricted general license was granted. These physicians need to mindful of their scope of practice. For example, and we probably all agree, that a seasoned internist or subspecialist might not be considered qualified to practice family medicine in a walk-in clinic as part of their transition to retirement.
Steven: Right. That’s clearly an entirely different scope. Changing scopes of practice can put patients at risk to patient safety incidents and thus, physicians also at medical-legal risk.
Yolanda: And this podcast isn’t about that situation, nor does it apply to hallway consults, the instance where you’re giving medical advice outside of your usual scope. But regardless of the circumstances, when a change of scope of practice is planned and elective, it’s prudent to call the CMPA to discuss the implications both in terms of college requirements and your medical-legal protection. But let’s get back to what this podcast is about, Steven.
Steven: Why don’t we start with our take-home messages?
The first one, despite the challenging conditions of health care emergencies, physicians will be expected to act professionally and in their patients’ best interest.
Yolanda: And in second place, anticipate what additional skills, training or even resources might be required, and make efforts to stay up-to-date as the situation evolves.
Steven: And finally, document the rationale and the context for your decisions, as well as the support that you sought to demonstrate that your actions were reasonable at the time.
Yolanda: So let’s talk about the first point. Physicians are expected to ask professionally and in their patients’ best interest.
Steven: Generally, colleges have advised that a physician should only practice outside their area of expertise during a health emergency or any emergency if three criteria are met:
Yolanda: So essentially what they’re saying, is that a less qualified physician is better than no physician at all.
Steven: Right. So one way to manage this awkwardness, I think, is to be transparent about it with your patients.
Yolanda: Right. So for the physician to candidly discuss the unique aspects of the context of care with their patients is entirely appropriate.
Steven: Right.
Yolanda: Being mindful, however, that the tone should be one of collaboration and inspiring trust in the relationship and the system while acknowledging the exceptional nature of the circumstances.
Steven: Right, certainly. So you’re not going to be wanting to air your dirty laundry about the hospital politics and having to work outside of your scope with your patients at the bedside. It’s not what we’re talking about.
Yolanda: No, that would be fear-mongering.
Steven: That’s right and that’s not professional, not really. Communication issues, Yolanda, are so, so frequent in our cases, right? So that’s why it’s important to acknowledge the reality but not to undermine trust.
Yolanda: Do you have an example, Steven?
Steven: Well, you know, think of the situation on the plane, for instance, right? I know I travel a lot as part of my job and I’ve been on flights when they’ve sought the physician. And as a paediatrician, you can imagine my discomfort and how daunting it is when I have to deal, for instance, with an elderly male with chest pain, right? So, I’d approach that with hi, I’m a paediatrician. I don’t usually do this type of thing, but I’m willing to do my best for you. How do you feel about that?
Yolanda: Right. You’re the only one on the plane. You do your best and you muddle through as best as you can. And that’s really the Good Samaritan principle, and we have an article on that for those who want to read about this more.
Steven: Right. And, you know, while practicing outside of your scope in your hospital because the hospital is asking you to do that as a means to deal with an emergency, it’s not exactly the same as the Good Samaritan situation.
Yolanda: True.
Steven: Nevertheless, there are similarities, right? We want to reassure you that you can be confident that you’ll remain protected by the CMPA, should anything come out of you working outside of your scope of practice in those kinds of circumstances.
Yolanda: Yeah. So we have your back. So, let’s get back to the more formal need to change our scope of practice when it’s imposed on us by the health authority, for instance.
Steven: Right. Well, that has come up indeed, and this is where the can I refuse and can they force me issues arise.
Yolanda: And this is a reality that many of our colleagues are facing. Be it as a result of COVID in the setting of the current health crisis, or as a result of acute on chronic resource restrictions. So when physicians ask can I refuse? Well, the answer is no, not really. And to the question can they force us? Mm essentially, yes. Because being a privileged member of the medical staff comes with obligations to comply with hospital by-laws and policies.
Steven: And that can come with risk to disciplinary action if you don’t comply with those by-laws and policies.
Yolanda: Which CMPA would generally assist you with. So don’t worry, but be aware.
Steven: That’s right. So that raises another frequent question, though, Yolanda. And that is, aren’t hospitals or health care authorities accountable to support the doctors that they’re essentially forcing to work out of their scope?
Yolanda: Indeed, to the extent that there is jurisprudence that confirms that hospitals have a separate duty of care towards patients and that the hospital has a responsibility to provide a safe system for patients that includes the coordination of personnel, facilities, and equipment in order to ensure reasonable patient care.
Steven: Right. Therein is the key, right, the system, and the coordination of the personnel to make the system work. So, hospitals have a vested interest, of course, in ensuring that any proposed policy or procedure for coordinating that medical staff is actually implemented in a way that’s consistent with the applicable standards in the community that they serve, right? So again, one city versus a different city may have different circumstances and standards. And we have to bear in mind, of course, the nature of the exceptional circumstances that arise in the context that they’re dealing with.
Yolanda: So, as physicians, digging our heels in and arguing that we don’t want to do this, is not necessarily helpful and could place us at risk. And really, the preferred approach is one of collegial dialogue and negotiation.
Steven: And here’s a leadership tip on that, right? Have some of these conversations with the hospital, health authority, medical staff, before you actually need to deploy people outside of their scope of practice, before you face that emergency, before you have the critical point that’ll foster much more generous and deep discussions to try to find the best solution.
Yolanda: So really to build the plan before you need it. So planning is the key to that smooth collaboration. Try to discuss the issue as soon as you identify it. Highlight the concerns that you have with regards to patient safety. Offer workarounds or temporizing solutions. But above all, do so in a professional manner.
Steven: That’s really the key there, right? And it may be possible, for instance, to negotiate expanding service corridors, for example. And you might be able to lobby for in-service education or refresher courses, so to speak, to bring you up-to-date on that particular aspect of clinical medicine that you’re no longer in touch with. And there, the university continuing professional development offices can be very helpful and we’ve seen that, for instance, in the COVID context, where the CPD departments have put on very timely education about the latest and best around COVID.
Yolanda: Yeah. And let’s keep in mind the importance and the utility of leaving a paper trail of those administrative discussions and negotiations. And here I’m referring to departmental meeting minutes that establish the medical staff’s diligence in being proactive to highlight the patient safety or other risks that they perceive with the proposed policies, but also ensures that the hospital authority is notified and aware.
Steven: So you know, Yolanda, the bottom line is that we may not be able to fix the problem that we want to fix. It may really not be fixable in the way that you might want, right? You might not be able to not work outside of your scope of practice, but you can at least set the stage for justifying your work through the documentation that’s left both in the patient record and your general medical paperwork that you have in your offices, should any medical-legal concern arise in the future.
Yolanda: And this point actually takes us to our third take-home message, which is how to document the situations you face. So, let’s take our prerogative to skip ahead and talk about this point now.
Steven: Sure, why not? When you face difficult situations, you can document the rationale for your choices in patients' charts, if it’s pertinent to the patient's care. So for instance, why did you not transfer that patient to the ICU today, whereas normally you would be transferring them to the ICU? Or why did you choose to use what could be seen as a suboptimal antibiotic on that night, if there wasn’t the optimal antibiotic available? So those things are fair game for documentation and the patient record because it’s about their individual care.
Yolanda: So, where else do we document?
Steven: Well there are other issues that have less to do with direct patient care and choices and that are more about the broader directives that the hospital has provided and that affect care in general. So, you can keep copies of directives and policies or notices as they change in your general office files. For instance, if you’re advised that as of today, all consultations for service X must be sent to hospital Y. Well, store those kinds of notices in your files. They can be really helpful to help establish the context that prevailed at the time when experts that look at the file are going to be trying to determine whether or not you met the standard of care, because they’ll be looking at those files on average, two to five years after the care was provided. And goodness knows, in the COVID context, for instance, we saw policies change sometimes on a daily basis in various hospitals and no one in their right mind would ever be able to remember what a policy was…
Yolanda: What was in place when.
Steven: On that specific day. So establishing that context is going to be very important in the future and keeping the documentation is going to be vital.
Yolanda: I’m thinking we’re going to come back to this as one of our documentation tips at the end.
Steven: Ya think?
Yolanda: But Steven, let’s remember that as physicians, we’re often driven to be fixers. And what I often hear on the phone, and what our colleagues worry about, is being the one left holding that proverbial hot potato that leads to the complaint or the lawsuit.
Steven: Right, because we are the face of the system. We are the sharp end of the system. So, yeah, we understand and this is why we’re recording this podcast. We want to reassure that you’re not alone, the challenges you face are there across the country and we’re there for you.
Yolanda: We got your back. So let’s come back to take away message number two that we skipped over before. So, we said it was to anticipate what additional skills, training, or resources might be required and make efforts to stay up-to-date as that situation evolves.
Steven: Right, so do make enquiries with your college, or the college in the province or territory where you’re going to be called upon to provide medical care, to determine what their licensing requirements are going to be. And we saw again, with COVID, for instance, that the college has demonstrated a lot more flexibility with regards to licensure than they normally would have, in order to expedite the provision of care.
Yolanda: So that said, in an emergency situation, colleges would generally view physicians as having an ethical duty to do their best, to attend to individuals in need of urgent care. And they’ve demonstrated leniency in terms of licensing requirements in order to accomplish this.
Steven: We have to keep in mind, Yolanda that the colleges typically license us to practice in the area in which we are trained and experienced. And so while the college might say it’s okay to practice out of scope for a particular emergency circumstance, once it’s over, physicians have to revert back to their usual scope of practice and stop practicing in that expanded scope, even though they may kind of like it.
Yolanda: Which was an exception, so we go back to the normal.
Steven: Yeah.
Yolanda: So, there are other situations where physicians choose to expand, or even restrict their scope of practice, having nothing to do with emergency circumstances. And in those instances, it’s important to inform the college and to contact us, CMPA, to discuss continued eligibility requirements and type of work protection in their new practice situation.
Steven: Right. So think, for example, of a family physician who decides to expand their scope of practice to cosmetic medicine, aesthetic medicine, or to one who decides to restrict their scope of practice to in-office vasectomies, for instance. Each of these has different potential implications for patient safety and medical legal risks, and you can be sure the college will want to know about that choice of yours. And we at the CMPA as well, we’re going to want to know because, as you say, of the protection category that you may fall into. So for instance, the college is going to want to know that you’ve got the skills, the training, the experience to actually warrant that change in scope of practice and they’ll want to know that you can be safe in doing so.
Yolanda: So it goes without saying that we all need to be involved with continuing professional development. But it also goes without saying that we generally don’t cover things that we would not normally be expected to do that aren’t on our radar, or ever even anticipate doing, or tapping into another resource. So, it is important to consider consulting with colleagues who might have expertise working in the area, you’re going to be deployed to, or colleagues working outside of their scope of practice and clarify what your own limits might be, but also to define what the expectations of you are going to be.
Steven: That’s right. And for instance, when the hospital redeploys you to a different service, it’s very helpful if you can get in writing what the formal arrangements are going to be. Are you going to be working independently, or are you going to be working under the supervision of experts in that field at, for instance, supervising you remotely? So building redundancies is another important piece of the puzzle, right? So that you may be in the front line in the ICU...
Yolanda: But you need a backup.
Steven: Yeah, that’s right. Those experts in ICU who need their rest can be on second or third call, for instance. So, arms-length delegation and supervision, if you’re going to be in a formal supervisory role if you’re going to be supervising people working in the ICU, for instance, that don’t usually work in the ICU, it’s going to be important for you to be aware of the principles behind delegation and supervision. And we have documentation on that available as well on our website.
Yolanda: That’s a really important point, Steven. So having someone act as a “supervisor”, formal or informal, may be a good way to establish a safety net that helps redeployed physicians feel supported. But we also have to take that responsibility seriously from the point of view of the documentation that we keep.
Steven: That’s right. The parallel can be made, you know, with working with more or less experienced residents, the way you undertake the supervision, and the documentation of your advice and how closely you’re looking at things is going to be suited to the situation.
Yolanda: And look, a lot of positive can also come from these situations. I think it’s important to highlight that. You know, support from colleagues, newfound collegiality may lead to identifying better ways of working together that can bring about lasting change.
Steven: Right. One thing’s for sure, though, physicians are expected to make reasonable efforts to access relevant information and to stay informed, and to identify their own limitations.
Yolanda: And this means being proactive and trying to anticipate what additional skills, training, or resources might be required, and to stay up-to-date as the situation evolves. And this could become part of that administrative discourse we alluded to earlier.
Steven: Right.
Yolanda: It’s fair to ask for, and even organize an in-service or refresher courses, for example.
Steven: You could also seek out a mentor.
Yolanda: And encourage speaking up.
Steven: Oh, you just stole my communication tip. Speaking up is so important. It’s a cultural mindset, right? It’s what allows you to raise concerns without fear or judgement or repercussion in the interest of patient safety.
Yolanda: And it is also a truly bidirectional thing. So not only should you speak up, but there should be listening up on the other side.
Steven: All right. Well Yolanda, how about a documentation tip since we seem to be at this point in the podcast?
Yolanda: And as you thought documentation. So, let’s suggest a two-pronged approach to documentation. Remembering that paper trail of the administrative discourse with the health authorities, as well as documentation at the point of care, where we document the rationale for and the context for the decisions and the support that you thought to demonstrate that your actions were reasonable at the time.
Steven: Right. And you know what? I’ll throw in getting that documentation—that clarification in writing about how the working out of scope is going to actually work with regards to supervising, being supervised, or actually working independently.
Yolanda: And that’s probably part of the administrative discourse as well. So there we are.
Steven: Yeah. I think we’re at the end here. Well, thank you very much, Yolanda. This was enjoyable. It went by really fast.
Yolanda: As always, this was really fun and I hope it’s useful to our listeners.
Steven: As always, we invite your comments, your questions, or your ideas for future topics. Please do send them to us. The address is podcasts@cmpa.org.
Yolanda: Thanks for being with us today. Goodbye.
Steven: Remember, when you change the way you look at things...
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.