health law

Being Deployed to the Front Lines of Health Care: What if I don't feel Safe or Competent?

Ontario Medical Review

In these extraordinary times, healthcare workers, chief among them physicians, are routinely called upon to do extraordinary things. From working around-the-clock, to practising medicine in areas in which they have little training or experience, to potentially exposing themselves and their loved ones to a life-threatening disease, the recent demands on health professionals have been just that--extraordinary. Having devoted their entire professional lives to caring for others, it is hardly surprising that physicians are among the very first to volunteer and “step up”, often at great personal risk. 

But what happens when physicians who are being asked or directed to serve on the very front lines of this pandemic, feel uncomfortable either due to a lack of specialized training or experience or due to their potential exposure to a virus that could affect their ability to care for dependents? What of those physicians who might understandably choose not to serve because of their own health concerns?

Like so many other questions raised by this pandemic, the answers are complicated and unclear.

The College of Physicians and Surgeons of Ontario (“CPSO”) has issued no less than seven (7) different policy statements related to these questions. The Ontario Hospital Association has also made a number of additional policy pronouncements. All of these policies must be read in the context of recent Legislative enactments.

On March 21, 2020 the Ontario government passed O. Reg. 74/20 under the Emergency Management and Civil Protection Act, R.S.O. 1990, c.E.9 (the “Regulation”). 

Initially intended to run for a period of only fourteen (14) days, the Regulation has been twice renewed. It provides, amongst other things, that the Administration of public hospitals has the power to redeploy “staff” within different locations of the hospital. 

Notably, neither the Regulation nor the government news release which accompanied its coming-into-force define the word "staff". While the press release concludes by thanking all “nurses, doctors and frontline care workers”, nowhere does it expressly provide that the Regulation has any application to physicians.   

Moreover, the various references to "bargaining units" and "collective agreements" in the Regulation suggest that these new powers may only be applicable to the non-physician employees of a hospital. This is because physicians hold annual grants of medical staff privileges, which privileges are granted not pursuant to union-negotiated rights, but pursuant to a hospital's medical staff bylaws and the Public Hospitals Act, R.S.O. 1990, c.P.40.

Even if the new Regulation does not expressly apply to physicians, what happens when a Division Chief, Department Chief, or the Chief of Staff of a public hospital directs front line coverage, but those so directed do not feel competent to serve in that capacity? What of the psychiatrist who is ordered to perform COVID-19 intake assessments, or the rheumatologist who is asked to assume care for ventilated patients? What of the physician who fears exposure because they are responsible to care for their elderly parent?

The policy statements by the CPSO, when read together, appear to support the proposition that while there is an expectation that physicians “pitch in” and help out, each physician will have to exercise their own judgment in determining what role they are comfortable playing.

A physician certainly should not jeopardize patient health or safety by attempting to provide care in an area of practice in which they are not qualified by lack of training, lack of experience, or both. Merely fearing for one's own personal safety may be a less obvious basis for exempting a physician from such service.

However, when the concern is clearly legitimate, for example because of an inability to access personal protective equipment coupled with a legitimate concern over infecting aged or immuno-compromised family members, the decision not to serve may well be justified. The CPSO’s policy statements are clear that in such cases physicians would need to be prepared to serve in alternative, lower-risk roles such as hospital administration.

Still, does the legitimacy of the concern, either in respect of medical competence in a particular area or in respect of potential exposure to the virus and harm to others, in any way guarantee that a hospital will not take steps to discipline a member of its medical staff who refuses as directed? Of course not. Does it guarantee that the CPSO will not seek to prosecute such a physician for professional misconduct? Of course not. Could a physician’s medical staff privileges at a public hospital be suspended in such cases? A hospital could certainly try.  

Indeed, any physician who refuses to serve as asked may well run each of these risks.

However, both in the case of a hospital privilege dispute and in the case of a CPSO disciplinary prosecution, the physician may well be able to avail themselves of a meaningful defence. No doubt, each case will turn on its own unique facts.   

In the absence of a clear regulatory pronouncement, whether such defences will prove successful will likely be a matter for determination by the Courts.

Neil M. Abramson is the Head of the Litigation Department at Torkin Manes. He is double certified as a specialist in health law and civil litigation and he routinely represents physicians and other health professionals before their professional Colleges and in hospital privilege disputes. If you have any questions about physician rights and obligations during COVID-19 pandemic, we encourage you to contact Neil M. Abramson. For more information about dealing with COVID-19, please visit our COVID-19 Resource Center.