InfoLAW: Telepractice

“Telepractice” is the delivery, management and coordination of care and services provided via information and telecommunication technologies such as telephones, personal digital assistants, faxes, the Internet, video and audio conferencing and other devices.¹

Telepractice is rapidly expanding, as are the technologies that accompany it. While telepractice was historically an extension of traditional care models, it is now increasingly being delivered by private corporations. This new, rapidly expanding model carries additional considerations.

Whether a nurse sees a client in person or through telepractice, and whether they deliver care through a private company or provincially funded program, they generally remain professionally and legally accountable for the services provided through this interaction, and should be mindful of the following considerations.

Jurisdictional considerations – which regulatory body is the nurse accountable to?

It is very important to understand the significance and potential implications of both the nurse’s physical location, and that of her client. The nursing regulator in the nurse’s jurisdiction may deem that the nurse is practicing in the province or territory in which they are physically located, regardless of the location of the client. However, the nursing regulator in the client’s jurisdiction may deem the nursing care to be taking place in that jurisdiction, rather than where the nurse is located. Consequently, nurses engaged in telepractice should establish whether licensure is required in the jurisdiction(s) where the clients are located, where the nurse is physically located, or both.

Jurisdictional issues can also have implications for professional liability protection. In order to benefit from the assistance available under their professional liability protection plans, nurses must usually be able to establish that they were engaged in legal nursing practice when undertaking the activities under review in the legal proceeding. Therefore, if a regulator found that a nurse had inappropriately provided nursing services without a license in its jurisdiction, there could be difficulties accessing professional liability protection in connection with those services.

In addition, a nurse’s scope of practice could be different from one jurisdiction to another. It would be prudent for a nurse to determine the jurisdiction(s) in which they are considered to be practising (they could be considered to be practising concurrently in more than one jurisdiction) in order to ensure that their practice conforms to the permitted standards and scope in the relevant province(s) or territory(ies).

Furthermore, nurses should consider how their liability protection is impacted if a nurse is considered to be providing nursing services to client(s) outside of Canada. Practising nursing outside Canada would increase the risk of an action being commenced outside Canada, which would disentitle the nurse to professional liability protection. Even if the claim is commenced within Canada, where professional liability protection is available, the CNPS limit for liability protection is generally lower when nursing takes place outside of Canada.

Who is the custodian of the records?

Each province and territory has different laws about who and what can be a custodian of records.  For nurses engaging in telepractice, it is important to determine whether the nurse is the custodian of the records or if it is the employer or telemedicine corporation who bears that responsibility. This consideration is relevant because additional legal obligations flow from custodianship.² In an age where telepractice is increasingly made available by commercial entities, the issue of custodianship becomes more complex as not all provinces allow corporations who are not otherwise engaged in the provision of health care to be custodians of personal health information. It will be important to identify the custodian of the health records and to confirm which provincial or territorial laws apply.

Is there a conflict of interest?

When providing private health services, it is important to be mindful of conflicts of interest. A conflict of interest “occurs when a nurse’s personal, business, commercial, political, academic or financial interests, or the interests of the nurse’s family or friends, interfere with the nurse’s professional responsibilities or a client’s best interests. A conflict of interest may exist whether or not a nurse is actually influenced by the competing interest.”³

When providing telehealth services, a nurse should consider whether the client is aware of (free) alternative options, and whether telepractice is the appropriate and best forum for the client. It is important for nurses to avoid situations where personal gain is in conflict with their client’s best interest. CNPS encourages nurses concerned about conflicts of interest to call and speak with CNPS legal counsel.

Are there privacy concerns?

One of the benefits to using technology is the speed at which information can be relayed. However, in a health care setting this can also pose a significant risk. Having personal health information on mobile devices increases the risk of the information being inappropriately accessed and shared. Consider whether all devices used in telepractice comply with the applicable privacy legislation, whether your conversation can be overheard and whether that poses a risk to the clients’ privacy.

What limitations can create additional risk in telepractice?

In telepractice, the following constraints may create additional risk:

• No direct observation of the client.An increased reliance on clients to describe problems and that the nurse may not have the ability to appropriately assess visually and physically, could result in incomplete assessments.
• Communication style. We all communicate differently over the phone than in person. Much of our communication skills and style is non-verbal; this is all lost when communicating over the phone. It is therefore prudent to be aware of your communication style both in how you speak (avoiding medical jargon, abbreviations, unconscious bias) and how you listen.  When speaking with clients who are nervous or do not speak your language as a first language, it would be especially important to tailor your communication style accordingly.

Managing the risks associated with telepractice

In most circumstances, nurses would be expected to meet the applicable standards of care, whether attending to a patient in person or by telepractice. The following strategies can assist in managing the risks associated with telepractice:

• Stay within your scope of practice, and recognize when telepractice is not appropriate (e.g., when a physical exam is required) or when a client’s needs exceed your knowledge, skill and judgment;
• Avoid conflicts of interest;
• Comply with professional standards ;
• Know how to use telepractice technology safely and in compliance with privacy legislation;
• Develop and maintain effective communication skills;
• Prepare accurate, complete documentation.

Case study:  Poole v. Mills Memorial Hospital⁵

The case of Poole v. Mills Memorial Hospital highlights the importance of taking time and care to deal with a telephone call.  In this case, an emergency room nurse spoke on the telephone with a man who asked what would happen if someone took six 50 mg tablets of Imipramine. The nurse knew nothing about Imipramine other than it was an antidepressant. As she researched information about the drug, she noticed a doctor sitting at the nursing station. She decided to ask him what would happen if someone took six 50 mg Imipramine. The doctor replied that 300 mg was within therapeutic range. The nurse relayed this information to the man on the telephone who then asked whether the drug could cause hallucinations or confusion. The nurse told him, “If it did, the person would sleep it off”, and the telephone conversation ended.

Shortly thereafter, the doctor decided to call the man back to find out more information only to discover that the nurse had not asked the caller any questions, including his name and number.

Meanwhile, at the caller’s home, the man continued to check on his wife who had recently been diagnosed with severe depression and had been hospitalized. While the wife had stopped taking the Imipramine that had been prescribed to her, she still had 90 pills left in her possession at home. On the day of the call, her husband found her hallucinating and disoriented. The Imipramine bottle which he had recently seen containing about 90 pills, was now empty. When he questioned his wife, she told him she had taken a different number of pills, but less than 10 in all.  The man decided to call the poison control centre, which was the local emergency room.

Within an hour of his call inquiring about Imipramine, the man brought his unconscious, cyanotic wife to hospital. Resuscitation attempts failed. An autopsy revealed she had taken over 80 tablets of Imipramine. In the ensuing civil action, the nurse was found negligent for failing to pursue the matter further by asking pertinent questions of the caller.

Summary

Nurses should be familiar with their nursing regulator’s guidelines and professional standards relating to the provision of telehealth.

CNPS beneficiaries can call 1-800-267-3390 to speak with CNPS legal counsel if they have further questions about liability issues related to telepractice and other areas of their nursing practice.

Additional Resources:

Many nursing regulators have specified standards of practice for telehealth:

• CRNA –  Telepractice and Virtual Care
• CRNS – Documentation: Guidelines for Registered Nurses and Telehealth Nursing Practice
• CRNM – Telepractice
• CRPNM – Telepractice
• NSCN – Practice Guidelines for Nurses: Telenursing
• CRNNL – Virtual Nursing Practice
• CNO – Telepractice Practice Guideline
• CANNN – Documentation Guidelines(page 11) and Telehealth FAQ
• NANB – Guideline for Telenursing Practice
• ANBLPN – Documentation: Professional Practice Series(page 14)
• CRNPEI – Practice Directive: Telehealth Nursing Practice
• OIIQ – Qu’est-ce que la télésanté?and Des services cliniques en télésanté

1. College of Registered Nurses of Manitoba, Telepractice; May 2018.
2. For more information about the role of the custodian of health information, please read “Are you a custodian or trustee of health records?”
3. The College of Registered Psychiatric Nurses of Manitoba, “Telepractice“, retrieved May 2023.
4. “Antibiotic Prescribing During Pediatric Direct-to-Consumer Telemedicine Visits” by Kristin N. Ray, Zhuo-Shi, Courtney A. Gidengil, Sabrina J. Poon, Lori Usher-Pines and Ateev Mehrotra. Pediatrics, May 2019.
5. Poole Estate v. Mills Memorial Hospital, [1994] BCJ No 635 (BCSC).

May 2020

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.