Health-care professionals across the provinces and territories are united in their efforts to provide Canadians infected with COVID-19 with safe, accessible, and timely medical attention. At the same time, Canadians continue to require the advice of health-care professionals to meet their day-to-day medical needs. Virtual care technologies (such as videoconferencing, virtual care apps messaging apps, telephone advice, etc.) can play an important role in the current pandemic by keeping patients with non-urgent medical needs away from higher risk areas while also complying with requirements for social distancing.
To this end, there may be an influx of new “virtual care” roles, and an increase in virtual care adoption across the health sector. For example, community health clinics or private primary care clinics, upon the advice of government and public health officials, may have transferred to a virtual care model to address non-urgent medical needs. Other commercial organizations may also invite primary care providers such as nurse practitioners to enter into arrangements to provide virtual care using the organization’s proprietary software. There are, however, important legal considerations to take into account before entering into practice in a virtual care setting.
1. Will you be providing virtual care on behalf of an organization or individual that normally provides health care services (hospital, clinic, other health care provider) or with a commercial entity or individual that is not otherwise a licensed or regulated health care provider?
3. Who will act as the custodian/trustee of personal health information? If the contracting party is not a regulated care provider or licensed health care organization, can it operate as a custodian of personal health information?
9. Does the written agreement recognize that not all health care conditions can be appropriately managed by way of virtual care and that the limitations to your services given the risks associated with providing virtual care services?
Organizations that normally provide health care services, such as hospitals and physician offices will be required to comply with the stringent legal and regulatory requirements applicable to most aspects of the provision of health care services. Hospitals and clinics operated by regulated health care providers have already integrated, as part of their operating procedures, requirements related to licensure, inter-jurisdictional practice, record-keeping and access, as well as limitations on the custodianship of health care records and limitations on advertising. They understand the need for reliable systems for follow-up care, and generally the need for an adequate infrastructure (including the necessary equipment, appropriately calibrated) to provide health care. When becoming affiliated with these organizations, it is usually reasonable to expect, absent indications to the contrary, that the infrastructure necessary for the provision of healthcare services will comply with all applicable requirements.
The same cannot necessarily be said when becoming affiliated with non-licensed commercial entities that do not normally operate within the health-care sector. These organizations may not be bound by the same stringent legal requirements. The systems, safeguards and limitations that normally contribute to the establishment of a safe framework for professional practice may not readily exist to the same extent in a commercial context.
This may, in turn, increase the responsibility of the health-care professionals who provide care on behalf of these organizations to ensure that they can provide care in accordance with their standards of practice and that the legal requirements applicable to privacy, the custodianship, retention and management of personal health information, follow-up care etc. are met.
When providing care on behalf of an organization that is not operated by health-care professionals or licensed as a health care organization, there should be a clear, documented understanding, in advance of providing care, as to which party (the commercial entity or yourself) will be responsible to ensure that an appropriate infrastructure (record-keeping system, communication tools, follow-up system, appropriate limitations on advertisement, client management system) is in place. This understanding should normally be documented in a contract for professional services.
If virtual care is intended to serve as a temporary measure to address patient needs during the pandemic, it may be appropriate to proceed on the basis of clinical tools that are less sophisticated, understanding that the determination of your ability to provide care in any given circumstances will be in part contingent on the adequacy of the tools made available to you. If you are contemplating engaging in a virtual care practice as a means of providing ongoing services to clients, it would be prudent to clearly ascertain that the tools at your disposal comply with the applicable requirements, and understand their limitations. In any case, if you contemplate providing virtual care services on behalf of an entity using a virtual platform provided by that organization, the following questions may help you understand the extent of the clinical supports that the practice setting will put to your disposal.
- Does the technology allow for an adequate visual assessment when required?
- How will you be able to confirm the client’s identity and location?
- Does the technology allow for clear, confidential communication?
- Will the virtual care consultation be recorded, and if so, where will the recording be kept?
- Is there an information management or record-keeping system to ensure the safe storage and encryption of personal health information? How will your notes detailing communications with patients be protected?
- Will you have access to the client’s existing personal health information or will it be limited to the information provided by the patient at the time of the consultation?
- How will the system be structured to order diagnostic tests and to ensure appropriate and timely follow-up of results?
- Will there be a continuity of care between you and the patients, or will patients be referred to a roster of different professionals, based on availability?
Of particular interest if the contracting party or facility is not a regulated care provider or licensed health care organization:
- Have patients been notified that an in-person consultation may have to be arranged in the event that the condition cannot be appropriately managed by way of virtual care?
- What type of policies and procedures will apply to the virtual care consultation, and if possible, can you review them before entering into a written agreement with the contracting party?
- Does the contracting party have its own prescription system, or is this your responsibility to implement? If so, how will you, and the contracting party monitor the prescriptions of patients and ensure that information is accurately logged and managed?
- Will the contracting party be responsible for arranging appointments with patients?
- Are there any representations (i.e. advertising) made to the client by the service provider about the care that you will provide? Are you comfortable with those statements?
- Are you able to decline a consultation if you determine it is not appropriate for a virtual assessment?
If you are contemplating providing virtual case services by selecting your own virtual care platform:
- Is the virtual care platform compatible with the legal requirements applicable to the management of personal care information?
Nurses may at times be custodians of health information (also known as “trustees” in some provinces) by application of the law, whether or not they have previously agreed to undertake these responsibilities. All provinces and territories have now adopted legislation governing the management of personal health information. Under this legislation, custodians are generally responsible for ensuring that personal health information is, for example:
- Held in a secure location;
- Collected only as necessary to provide health-care services or with the consent of the individual to whom it relates;
- Accessed only by authorized staff members; and
- Used, disclosed and retained in accordance with the specific requirements of the legislation.
In some provinces and territories, organizations that are not primarily health-care organizations or that are not expressly identified in the legislation may not be authorized to act as custodians. If you practice on behalf of such an organization, or if you are an independent practitioner, the law may designate you as the custodian of health care information. This means that you would be personally responsible for the management of personal health information, and this obligation may continue even if you choose to no longer practice at that location.
In such circumstances, the law may allow a custodian to enter into an agreement with another organization to enable the organization to manage personal health information on behalf of the custodian. However, even in those instances, the law may provide that the custodian retains control over the information and the ultimate responsibility to ensure compliance with the law.
If you provide virtual care (a) on behalf of an individual who is not a regulated health care provider legally authorized to act as a custodian, (b) on behalf of an organization that not licensed as a health care organization or (c) using a commercial virtual care platform, it will be important to consider the following:
- Can the individual, organization or commercial supplier of the virtual care platform act as a custodian/trustee of personal health information, and if so, what is the legal authority for doing so (the provision of the statute that authorizes the custodianship)?
- If the individual, organization or commercial supplier intends to act more so as an intermediary between a patient and a nurse, is there a provision in the statute that permits the corporation to be an information manager?
- If the individual, organization or commercial supplier is an information manager, is there a written agreement (there usually must be one) and if so, is the written agreement in compliance with legislation?
It is important to understand this before you join an organization so that you can determine whether you are prepared to undertake the responsibilities of custodianship, and whether there are more practical options if you are not. If you know that you are (or will be) legally designated as a custodian of personal health information, and are prepared to undertake that responsibility, you will be able to understand, plan for and fulfill your legal obligations.
You may wish to review your regulator’s standards and guidelines on confidentiality of personal health information, as well as the resources from your jurisdiction’s Information and Privacy Commissioner or Ombudsman. Additionally, the CNPS has a number of resources about confidentiality.
It is important to consider whether you will be expected to provide virtual care to individuals outside the province or territory in which you presently practise. If that is contemplated, it would be prudent for you to contact the nursing regulator in that jurisdiction before providing services to these residents to determine the extent of any registration requirements. If you provide nursing services to a patient residing outside of your province or territory, the nursing regulatory body in the patient’s jurisdiction may consider you to be practicing nursing in that jurisdiction and may require you to be duly licensed or registered in that jurisdiction, in addition to the jurisdiction in which you are physically located. This issue is also relevant as the CNPS assistance is generally only available with respect to nursing services provided in a Canadian jurisdiction while the nurse was duly licensed to practice in that jurisdiction.
Depending on the nature of the consultation, virtual care may carry inherent limitations. For example, the increased reliance on clients to describe problems that the nurse may not have the ability to appropriately assess visually and physically could result in incomplete assessments. Furthermore, the ability to conduct an assessment may also be limited, for instance, in assessing a breast lump, conducting a throat swab, taking vital signs, or even to assess a wound.
In the context of the pandemic, in determining whether virtual care is an appropriate means of providing care, these risks will have to be weighed against other considerations, such as any applicable emergency or public health order, the vulnerability of the individual to an infection and the general risks associated with an in-person assessment. Nonetheless, it is advisable that the inherent risks of providing care electronically be explained and acknowledged by the patient.
In the case of a sophisticated virtual care system, a written consent form may be integrated in the use of the platform. Otherwise, a written consent form may be used to document the patient’s consent. We have adapted, with the permission of the Canadian Medical Protective Association a template for a comprehensive consent form that can be easily adapted for use in a nursing practice. If, during the pandemic, you temporarily turn to virtual care as an alternative to in person consultations in compliance with public health recommendations, a written document may not be easy to incorporate in your practice. In the context of the pandemic, it would be appropriate to obtain the patient’s informed consent to the use of the virtual care platform (please become familiar with the most important limitations of the platform that you propose to use so that you may inform the patient), and document that discussion and the patient’s consent as part of your consultation. Please note that obtaining the patient or client’s consent for the use of a virtual platform would not be sufficient to shield you from liability if a court were to find that the patient required urgent care and even taking into account the circumstances of the pandemic, it was not possible to provide the appropriate standard of care with the use of a virtual platform.
Nurses can provide nursing services as an employee, or as a self-employed individual, known in legal terms as an independent contractor.
If you are entering into a virtual care role as an employee, it is generally expected that your employer will provide you the supplies necessary to fulfill your responsibilities, and that you will be expected to comply with employer policies and procedures, to the extent that they are consistent with your professional obligations. It is also likely that your employer will provide you with a form of professional liability protection.
In contrast, as an independent contractor, you will instead likely be viewed as financially independent from the contracting party’s operations, and therefore responsible for your own costs, including the payment of taxes. You will also be generally expected to maintain your own professional liability protection. This distinction is significant, and ought to be clarified from the outset.
The characteristics that distinguish an employee from an independent contractor are not always clear. If you are contemplating entering into an agreement to provide virtual care as an independent contractor, and you are not already familiar with the financial and legal implications of practising as an independent contractor, it would be prudent to first consult a business advisor and review any independent practice guidelines published by your regulatory body.
This consideration may be of less relevance to employees of health-care institutions temporarily operating through a virtual care model as a result of the pandemic. However, for those who wish to take on a new role through a virtual care platform, it would not be prudent to proceed without it. As a first consideration, the written agreement with the contracting party offering you this position will generally indicate if you are to become an employee or an independent contractor.
The written agreement should also clearly delineate your responsibilities and those of the other party. This is important, particularly if you are entering into an arrangement as an independent contractor with an organization that is not a licensed health care organization. For instance, it will ensure that there are clear expectations as to who will be responsible to provide the virtual care platform, what form it will take, who will manage access to personal health information, etc. This may prove particularly important should an adverse event occur to determine whether each party complied with their respective obligations.
Professional services agreements may contain terms that aim to shield a contracting party from any liability. This language is typically contained in limitation of liability clauses, or indemnification clauses. These kinds of clauses often shift the weight of legal and professional responsibility for adverse events from the business onto the nursing professional.
If you agree to limitation of liability or indemnification clauses in a written agreement, you may be accepting a broader exposure to liability than the applicable principles of law would otherwise provide and that your professional liability provider would be prepared to pay on your behalf.
A written agreement should expressly acknowledge that not all health care conditions can be appropriately treated by way of virtual care, and that you may have an obligation to decline the consultation and recommend an alternative course of action.
For further information, you may wish to review the CNPS articles on Telepractice. You should also be familiar with your nursing regulator’s standards/guidelines on telepractice and/or virtual care (these terms are often used interchangeably), as well as the contracting party’s policies and procedures.
Decisions made as a nursing professional should be motivated by the best interest of your patient. A conflict of interest generally describes circumstances where other factors could interfere or be perceived as interfering with the exercise of your professional judgement in the best interest of your patient. In the context of the provision of virtual care, a conflict of interest may be found in the following cases, as well as others:
- Compensation arrangements based on number of consultations/assessments and prescriptions;
- Paying kickbacks for referrals;
- Offering packages of sessions at a discounted rate;
- Bonuses based on patient satisfaction
It is also important to avoid “perceived” conflicts of interest. In other words, would an objective third party view the decision making process as potentially influenced by external considerations?
Professional liability protection refers to the provision of legal representation to a professional who faces allegations of professional negligence in a claim or lawsuit, along with the payment, on behalf of the professional of any damages ordered to be paid by the court following a trial.
If you intend to rely solely on your employer as a source of professional liability protection, it is advisable to inquire about the extent of this coverage. Employers typically rely on insurance policies that are subject to specific terms and conditions, and you should be aware of the extent and limitations of the protection made available in the event of a legal proceeding.
In most Canadian provinces and territories, CNPS professional liability protection is made available individually at the time of licensure or registration with your regulatory body. You may verify if this applies to you here. CNPS professional liability protection extends in the normal course to nursing services provided by way of virtual care, provided that the nursing professional meets the registration requirements in the relevant provinces and territories.
The CNPS also offers an optional Supplementary Protection program for assistance in the case of a complaint made to a nursing regulator. Please note that you must apply for Supplementary protection, it comes at an extra cost and is not included within CNPS core services.
CNPS assistance extends to you personally. Should you operate a business, it would be generally advisable for your business to carry separate protection. Your business financial or legal advisor may assist you in determining the type and extent of protection or coverage that would be appropriate for your business. You may also need “business-type” coverage for risks associated with your infrastructure if you are an independent contractor or with the management of personal health information, if you become a custodian of personal health information. Self-employed nurses providing virtual care should consider purchasing cyber liability insurance. If you are unsure whether you operate a business or whether you are an independent contractor, you can contact the CNPS for more information.
CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.
Published 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.