Expert Legal Advice for Physician Assistants

We had a lawyer come in for a session on legal advice. 60% of the audience was from Ontario, and 40% were from Manitoba.

Professional practice is a term to all professions. To conduction and work a professional rendered within framework of framework of recognized professional, ethics, standards and applicable requirements;

No matter which province you practice, there is a set of ethics, standards and legal requirements, including:

• Laws, regulations and policies
• Scope of practice
• Professional standards of practice
• Professional obligations and responsibilities
• Professional and personal rights
• Provision of safe, ethical quality of care.

Professionals are involved in determining rules that governs the profession (e.g. being involved as a CAPA Board of Directors, sit on counsels and vote, participate in regulation)

College seres as an intermediary, between professional and government. Professionals are accountable for their own behaviour (e.g. they are accountable to self regulation) with a regulatory College providing assistance and oversight. A regular College is mandated to reduce the risk of harm to members of the public.

A professional association puts the professional’s interests first.

CAPA – However CAPA is a federal association has a larger than typical role (i.e. CanMDS PA, quasi regulatory function plus member advocacy). This means we have a chance to effect change and direction, through working with CAPA.

Entry to Practice / Practice Requirements across Canada

• These requirements differ province to province and your ability to serve in certain models
• This impacts your legal obligations
• This does not impact your obligations to patients or to the profession.

Standards of Practice

• Derived form laws, written texts, norms, policies, best practices and expectation of the profession and members of the public, associated professionals, delegation, directives and agreements with physicians.
• These standards may evolve with time
• Differ from jurisdictions to jurisdictions
• Differs from standard of care: Courts will determine standards of care only with the assistance of an expert in the field.

CanMeds-PA

• Is a set of minimum competency standards for entry to practice
• Contains a scope of practice statement
• a guide for the Canadian National Certification Exam
• A resource for continuing professional development
• See the full Can-Meds PA

In court, they look at standards of care. An expert PA will review clinical notes to see if standard of care was violated.

Ethics: Ethics are a system to explain or justify decision-making, and to help guide you making complex health ethics. CAPA’s code of ethics more closely resembles of relevant rules and best practices. It helps you identify where there may be conflicts of interest, which may prevent you from best perceiving patients.

Privacy is paramount: Canadians abide by PHIPA, the Personal Health Information Protection Act.

Conflicts of Interest: A situation in which a person is involved in multiple interests, financial or otherwise, one of which could possibly corrupt the motivation or decision-making of that individual or organization. A conflict of interest prevent or can be reasonably regarded as having the effect of preventing the PA from properly exercising his or her professional judgement or referral to patient.

• To address this conflicts of interest:
  • Consider your own personal connections and influence on decision to treat (e.g. refusing to treat a patient, or certain religions/culture that prevent administering particular treatments).
  • Consider parties involved, yourself, the patient, supervising vision or others.
  • generally early full disclosure can resolve a  conflict of interest.
• Conflicts of interest need not be actual but merely perceived conflict
• Record keeping and medical documentation is important: Documenting patient encounters, the better and more detailed your conversations, the better. If you have to refer to someone else or colleague, document the referral.

The Assisted-Death law is an example of a potential for Conflict of Interest.

Example of Conflict of Interest: Employer/Employee Struggle

• Your supervising physician asks you to do something:
  • Not in interest of patient and you know it
  • Outside your scope of practice and you know it
  • Something for which you lack the skill, judgement and experience
  • For which the physician stands to personally gain, at the expense of the patient
  • Forbidden for some other reason, but if you refuse your job is on the line.

How do you make legal, ethically, sound decisions that are in your patient’s best interest?

• Consider your legal obligations (laws, regulations, standards of practice)
• Consider your scope of practice
• Know your limits (of knowledge, skill, experience.
  • Refuse to perform an act if you lack knowledge, skill, experience
• Understand your conflicts of interest
  • Identify the conflicts of interest
  • Avoid conflicts of interest
  • Determine best manner to deal with conflict
  • Communicate that there is a conflict of interest
  • Do not act while in conflict (unless its emergency)
  • Extricate yourself from the conflict
• Record keep, Record keep, record keep.

1. Informed consent is a process
2. Informed includes all material information not just material risks
3. Understanding and appreciation
4. Encourage questions
5. Delegation
6. Consent forms – gives evidence that informed consent was obtained.
7. List of risks and side effects
8. Detailed charting and documentation
9. Standardized practice

Issues that may result form Informed Consent includes capacity to consent, including age, mental capacity, language and cultural capacities. For example, if a family member translates – how accurate is the translation? does family member who is translating have the same views as the patient regarding treatment? Its important to consider these issues.

• In every instance of delegation, the primary consideration must be the best interest of the patient
• An act undertaken thru delegation must be safe and effective as it had been performed by the delegating physician
• Responsibility for a delegated controlled act always remains with the delegating physician.

Delegation: Refusing an Order

Can a PA refuse an order by a physician? If so under what circumstances?  What should the PA do? What documentation is required?

• Consider: if you refuse, will you be “abandoning the position?” Consult your supervising physician, colleagues and peers.
• Overarching answer is, YES you can refuse, but you have to think of repercussions.

Agreements are central to any profession. Interestingly, agreements involving PAs are intertwined:

Elements of PA Contract

• who will be supervising physician
• from who the order will come
• will you work under a directive
• what will be PA activities
• whom the PA reports
  • are they employee to MD or facility
• Support and resources available to PA at place of employment
• workplace time management, expectations (i.e. time give n for record keeping, patient care, workload, research)
• Who will conduct PA performance review
• Who will consider expanded duties/role of the PA
• What are thee requirements re: continuing education
• Don’t forget to review CanMEDS-PA for guidelines.

Determine General Employment Issues:

• Employee s contractor
• rate/calculation of pay, manner of pay, frequency of pay
• benefits, if any
• regular hours of work
• scheduling, seniority and hours
• vacation, sick days, etc.
• start date
• location of work
• confidentiality clauses
• Restrictive convenants, non-compete clauses
• Terms re; termination notice
• other clauses?

Changes to the Contract

Should you have lawyer review the contract?

What if I’m already working and there is no written contract or it is inadequate or my employer now ants me to enter a “new” contract”

• Constructive dismissal: legal advice is important
• Rehire/new hire?
• Does a union work environment affect you?

Limiting Professional and Personal Liabilities

• Keep current (i.e. continuing medical education)
• Attend seminars about legal practice / advice
• stay within scope of practice
• understand and maintain the standard of practice
• maintain proper record keeping
• identify and communicate conflicts of interest
• Purchase and maintain proper insurance coverage
• If there is a conflict, get a legal advice. Best advice is to consult with a competent lawyer in your jurisdiction regarding relevant issues before they fester . When in doubt, early lawyer can lead to early resolution and the protection of your rights!

Jonah Arnold, lawyer
Weinman, Arnold LLP
healthlawfirm.ca
Tel: 416-640-0508