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Joint statement on preventing and resolving ethical conflicts involving health care providers and persons receiving care

https://policybase.cma.ca/en/permalink/policy202
Last Reviewed
2019-03-03
Date
1998-12-05
Topics
Ethics and medical professionalism
  1 document  
Policy Type
Policy document
Last Reviewed
2019-03-03
Date
1998-12-05
Topics
Ethics and medical professionalism
Text
JOINT STATEMENT ON PREVENTING AND RESOLVING ETHICAL CONFLICTS INVOLVING HEALTH CARE PROVIDERS AND PERSONS RECEIVING CARE This joint statement was developed cooperatively and approved by the Boards of Directors of the Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association and the Catholic Health Association of Canada. Preamble The needs, values and preferences of the person receiving care should be the primary consideration in the provision of quality health care. Ideally, health care decisions will reflect agreement between the person receiving care and all others involved in his or her care. However, uncertainty and diverse viewpoints sometimes can give rise to disagreement about the goals of care or the means of achieving those goals. Limited health care resources and the constraints of existing organizational policies may also make it difficult to satisfy the person’s needs, values and preferences. The issues addressed in this statement are both complex and controversial. They are ethical issues in that they involve value preferences and arise where people of good will are uncertain of or disagree about the right thing to do when someone's life, health or well-being is threatened by disease or illness. Because everyone’s needs, values and preferences are different, and because disagreements can arise from many sources, policies for preventing and resolving conflicts should be flexible enough to accommodate a wide range of situations. Disagreements about health care decisions can arise between or among any of the following: the person receiving care, proxies,<1> family members, care providers and administrators of health care authorities, facilities or agencies. This joint statement deals primarily with conflicts between the person receiving care, or his or her proxy, and care providers. It offers guidance for the development of policies for preventing and resolving ethical conflicts about the appropriateness of initiating, continuing, withholding or withdrawing care or treatment. It outlines the basic principles to be taken into account in the development of such policies as well as the steps that should be followed in resolving conflicts. The sponsors of this statement encourage health care authorities, facilities and agencies to develop policies to deal with these and other types of conflict, for example, those that sometimes arise among care providers. I. Principles of the therapeutic relationship<2> Good therapeutic relationships are centered on the needs and informed choices of the person receiving care. Such relationships are based on respect and mutual giving and receiving. Observance of the following principles will promote good therapeutic relationships and help to prevent conflicts about the goals and means of care. 1. The needs, values and preferences of the person receiving care should be the primary consideration in the provision of quality health care. 2. A good therapeutic relationship is founded on mutual trust and respect between providers and recipients of care. When care providers lose this sense of mutuality, they become mere experts and the human quality in the relationship is lost. When persons receiving care lose this sense of mutuality, they experience a perceived or real loss of control and increased vulnerability. Because persons receiving care are often weakened by their illness and may feel powerless in the health care environment, the primary responsibility for creating a trusting and respectful relationship rests with the care providers. 3. Sensitivity to and understanding of the personal needs and preferences of persons receiving care, their family members and significant others is the cornerstone of a good therapeutic relationship. These needs and preferences are diverse and can be influenced by a range of factors including cultural, religious and socioeconomic backgrounds. 4. Open communication, within the confines of privacy and confidentiality, is also required. All those involved in decision-making should be encouraged to express their points of view, and these views should be respectfully considered. Care providers should ensure that they understand the needs, values and preferences of the person receiving care. To avoid misunderstanding or confusion, they should make their communications direct, clear and consistent. They should verify that the person receiving care understands the information being conveyed: silence should not be assumed to indicate agreement. The person receiving care should be provided with the necessary support, time and opportunity to participate fully in discussions regarding care. 5. The competent person<3> must be involved in decisions regarding his or her care. 6. The primary goal of care is to provide benefit to the person receiving care. The competent person has the right to determine what constitutes benefit in the given situation, whether with respect to physical, psychological, spiritual, social or other considerations. 7. Informed decision-making requires that the person receiving care or his or her proxy be given all information and support necessary for assessing the available options for care, including the potential benefits and risks of the proposed course of action and of the alternatives, including palliative care. 8. The competent person has the right to refuse, or withdraw consent to, any care or treatment, including life-saving or life-sustaining treatment. 9. Although parents or guardians are normally the primary decision-makers for their minor children, children should be involved in the decision-making process to the extent that their capacity allows, in accordance with provincial or territorial legislation. 10. When the person receiving care is incompetent, that is, lacking in adequate decision-making capacity with respect to care and treatment, every effort must be made to ensure that health care decisions are consistent with his or her known preferences. These preferences may be found in an advance directive or may have been communicated orally. In jurisdictions where the issue of decision-making concerning care and medical treatment for incompetent persons is specifically addressed in law, the requirements of that legislation should be met. 11. When an incompetent person’s preferences are not known and there is no family member or proxy to represent the person, decisions must be based on an attempt to ascertain the person's best interests, taking into account: (a) the person's diagnosis, prognosis and treatment options, (b) the person's known needs and values, (c) information received from those who are significant in the person's life and who could help in determining his or her best interests, and (d) aspects of the person's culture, religion or spirituality that could influence care and treatment decisions. 12. When conflicts arise despite efforts to prevent them, they should be resolved as informally as possible, moving to more formal procedures only when informal measures have been unsuccessful. 13. In cases of disagreement or conflict, the opinions of all those directly involved should be given respectful consideration. 14. Disagreements among health care providers about the goals of care and treatment or the means of achieving those goals should be clarified and resolved by the members of the health care team so as not to compromise their relationship with the person receiving care. Disagreements between health care providers and administrators with regard to the allocation of resources should be resolved within the facility or agency and not be debated in the presence of the person receiving care. Health care authorities, facilities and agencies should develop conflict resolution policies for dealing with such issues and monitor their use. 15. When the needs, values and preferences of the person receiving care cannot be met, he or she should be clearly and frankly informed of the reasons for this, including any factors related to resource limitations. 16. Health care providers should not be expected or required to participate in procedures that are contrary to their professional judgement<4> or personal moral values or that are contrary to the values or mission of their facility or agency.<5> Health care providers should declare in advance their inability to participate in procedures that are contrary to their professional or moral values. Health care providers should not be subject to discrimination or reprisal for acting on their beliefs. The exercise of this provision should never put the person receiving care at risk of harm or abandonment. 17. Health care providers have a responsibility to advocate together with those for whom they are caring in order that these persons will have access to appropriate treatment. II. Guidelines for the resolution of ethical conflicts Health care organizations should have a conflict resolution process in place to address problems that arise despite efforts to prevent them. There may be need for variations in the process to accommodate the needs of different settings (e.g., emergency departments, intensive care units, palliative care services, home or community care, etc.). The conflict resolution policy of a health care authority, facility or agency should incorporate the following elements, the sequence of which may vary depending on the situation. The policy should designate the person responsible for implementing each element. That person should work closely with the person receiving care or his or her proxy. Anyone involved in the conflict may initiate the resolution process. 1. Clarify the need for an immediate decision versus the consequences of delaying a decision. If, in an emergency situation, there is insufficient time to fully implement the process, it should be implemented as soon as possible. 2. Gather together those directly involved in the conflict; in addition to the person receiving care and/or his or her proxy, this might include various health care providers, family members, administrators, etc. 3. If necessary, choose a person not party to the conflict to facilitate discussions. It is imperative that this person be acceptable to all those involved and have the skills to facilitate open discussion and decision-making. 4. Identify and agree on the points of agreement and disagreement. While ensuring confidentiality, share among those involved all relevant medical and personal information, interpretations of the relevant facts, institutional or agency policies, professional norms and laws. 5. Establish the roles and responsibilities of each participant in the conflict. 6. Offer the person receiving care, or his or her proxy, access to institutional, agency or community resources for support in the conflict resolution process, e.g., a patient representative, chaplain or other resource person. 7. Determine if the group needs outside advice or consultation, e.g., a second opinion, use of an ethics committee or consultant or other resource. 8. Identify and explore all options and determine a time line for resolving the conflict. Ensure that all participants have the opportunity to express their views; the lack of expressed disagreement does not necessarily mean that decision-making is proceeding with the support or consent of all involved. 9. If, after reasonable effort, agreement or compromise cannot be reached through dialogue, accept the decision of the person with the right or responsibility for making the decision. If it is unclear or disputed who has the right or responsibility to make the decision, seek mediation, arbitration or adjudication. 10. If the person receiving care or his or her proxy is dissatisfied with the decision, and another care provider, facility or agency is prepared to accommodate the person's needs and preferences, provide the opportunity for transfer. 11. If a health care provider cannot support the decision that prevails as a matter of professional judgement or personal morality, allow him or her to withdraw without reprisal from participation in carrying out the decision, after ensuring that the person receiving care is not at risk of harm or abandonment. 12. Once the process is completed; review and evaluate: (a) the process, (b) the decision reached, and (c) implementation of the decision. The conclusions of the evaluation should be recorded and shared for purposes of education and policy development. III. Policy development Health care authorities, facilities and agencies are encouraged to make use of an interdisciplinary committee to develop two conflict resolution policies: one for conflicts among health care providers (including administrators) and the other for conflicts between care providers and persons receiving care. Membership on the committee should include care providers, consumers and administrators, with access to legal and ethics consultation. The committee should also develop a program for policy implementation. The successful implementation of the policy will require an organizational culture that encourages and supports the principles of the therapeutic relationship as outlined in this joint statement. The implementation program should include the education of all those who will be affected by the policy with regard to both the principles of the therapeutic relationship and the details of the conflict resolution policy. It should also include measures to ensure that persons receiving care and their families or proxy decision-makers have access to the policy and its use. The policy should be reviewed regularly and revised when necessary in light of relevant clinical, ethical and legal developments. Because policies and guidelines cannot cover all possible situations, appropriate consultation mechanisms should be available to address specific issues promptly as they arise. Notes 1. The term "proxy" is used broadly in this joint statement to identify those people who are entitled to make a care and treatment decision for an incompetent person (in some provinces or territories, the definition of proxy is provided in legislation). This decision should be based on the decision the person would have made for himself or herself, to the best of the proxy’s (substitute decision maker’s) knowledge; or if this is unknown, the decision should be made in the person’s best interest. 2. The term "therapeutic relationship" is used broadly in this document to include all professional interactions between care providers, individually or as a team, and recipients of care. 3. Competence can be difficult to assess because it is not always a constant state. A person may be competent to make decisions regarding some aspects of life but not others; as well, competence can be intermittent: a person may be lucid and oriented at certain times of the day and not at others. The legal definition and assessment of competence are governed by the provinces or territories. Health care providers should be aware of existing laws relevant to the assessment and documentation of incompetence (e.g., capacity to consent and age-of-consent legislation). 4. Professional judgement will take into account the standard of care that a facility or agency is committed to provide. 5. On this matter, cf. Guiding Principle 6 of the Joint Statement on Resuscitative Interventions (Update 1995), developed by the Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association and the Catholic Health Association of Canada, “There is no obligation to offer a person futile or nonbeneficial treatment. Futile and nonbeneficial treatments are controversial concepts when applied to CPR (cardiopulmonary resuscitation). Policymakers should determine how these concepts should be interpreted in the policy on resuscitation, in light of the facility's mission, the values of the community it serves, and ethical and legal developments. For the purposes of this joint document and in the context of resuscitation,'futile' and 'nonbeneficial' are understood as follows. In some situations a physician can determine that a treatment is 'medically' futile or nonbeneficial because it offers no reasonable hope of recovery or improvement or because the person is permanently unable to experience any benefit. In other cases the utility and benefit of a treatment can only be determined with reference to the person's subjective judgement about his or her overall well-being. As a general rule a person should be involved in determining futility in his or her case. In exceptional circumstances such discussions may not be in the person's best interests. If the person is incompetent the principles for decision making for incompetent people should be applied.” © 1999, Canadian Healthcare Association, Canadian Medical Association, Canadian Nurses Association and Catholic Health Association of Canada. Permission is granted for noncommercial reproduction only. Copies of the joint statement can be obtained by contacting: Membership Services, Canadian Medical Association, PO Box 8650, Ottawa ON K1G 0G8, tel 888 855-2555, fax 613 236-8864 or by visiting the Web site www.cma.ca/inside/policybase (English) or www.cma.ca/inside-f/policybase (French); or Customer Services, Canadian Healthcare Association, 17 York Street, Ottawa ON K1N 0J6, tel 613 241-8005, x253, fax 613 241-9481, or by visiting the Web site www.canadian-healthcare.org; or Publication Sales, Canadian Nurses Association, 50 The Driveway, Ottawa ON K2P 1E2, tel 613 237-2133, fax 613 237-3520, or by visiting the Web site www.cna-nurses.ca; or Publications, Catholic Health Association of Canada, 1247 Kilborn Place, Ottawa ON K1H 6K9, 613 731-7148, fax 613 731-7797, or by visiting the Web site www.net-globe.com/chac/.
Documents
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Health Care Coverage for Migrants: An Open Letter to the Canadian Federal Government

https://policybase.cma.ca/en/permalink/policy13940
Date
2018-12-15
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Ethics and medical professionalism
  1 document  
Policy Type
Policy endorsement
Date
2018-12-15
Topics
Population health/ health equity/ public health
Health systems, system funding and performance
Ethics and medical professionalism
Text
Dear Prime Minister Trudeau & Ministers Taylor and Hussen, We are writing to you today as members of the health community to urge your action on a crucial matter pertaining to health and human rights. You will no doubt be aware that the United Nations Human Rights Committee (UNHRC) recently issued a landmark decision condemning Canada for denying access to essential health care on the basis of immigration status based on the case of Nell Toussaint. Nell is a 49-year-old woman from Grenada who has been living in Canada since 1999, and who suffered significant negative health consequences as a result of being denied access to essential health care services. The UNHRC’s decision condemns Canada’s existing discriminatory policies, and finds Canada to be in violation of both the right to life, as well as the right to equality and freedom from discrimination. Based on its review of the International Covenant on Civil and Political Rights, the UNHRC has declared that Canada must provide Nell with adequate compensation for the significant harm she suffered. As well, they have called on Canada to report on its review of national legislation within a 180-day period, in order “to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life”. The United Nations Special Rapporteur has pushed for the same, calling on the government “to protect health-related rights to life, security of the person, and equality of individuals and groups in situations of vulnerability”. Nell is one of an estimated half million people in Ontario alone who are denied access to health coverage and care on the basis of their immigration status, putting their health at risk. As members of Canada’s health community, we are appalled by the details of this case as well as its broad implications, and call on the government to: 1. Comply with the UNHRC’s order to review existing laws and policies regarding health care coverage for irregular migrants. 2. Ensure appropriate resource allocation, so that all people in Canada are provided universal and equitable access to health care services, regardless of immigration status. 3. Provide Nell Toussaint with adequate compensation for the significant harm she has suffered as a result of not receiving essential health care services. For more information on this issue, please see our backgrounder here: https://goo.gl/V9vPyo. Sincerely, Arnav Agarwal, MD, Internal Medicine Resident, University of Toronto, Toronto ON Nisha Kansal, BHSc, MD Candidate, McMaster University, Hamilton ON Michaela Beder, MD, Psychiatrist, Toronto ON Ritika Goel, MD, Family Physician, Toronto ON This open letter is signed by the following organizations and individuals: Bathurst United Church TOPS 1. Arnav Agarwal, MD, Internal Medicine Resident, University of Toronto, Toronto ON 2. Nisha Kansal, BHSc, MD Candidate, McMaster University, Hamilton ON 3. Michaela Beder, MD FRCPC, Psychiatrist, Toronto ON 4. Ritika Goel, MD, Family Physician, Toronto ON 5. Gordon Guyatt, MD FRCPC, Internal Medicine Specialist, McMaster University, Hamilton ON 6. Melanie Spence, RN, Nursing, South Riverdale Community Health Centre, Toronto ON 7. Yipeng Ge, BHSc, Medical Student, University of Ottawa, Ottawa ON 8. Stephen Hwang, MD, Professor of Medicine, University of Toronto, Toronto ON 9. Gigi Osler, BScMed, MD, FRCSC, Otolaryngology-Head and Neck Surgery, Canadian Medical Association, Ottawa ON 10. Anjum Sultana, MPH, Public Policy Professional, Toronto ON 11. Danyaal Raza, MD, MPH, CCFP, Family Medicine, Toronto ON 12. P.J. Devereaux, MD, PhD, Cardiologist, McMaster University, Brantford ON 13. Mathura Karunanithy, MA, Public Policy Researcher, Toronto ON 14. Philip Berger, MD, Family Physician, Toronto ON 15. Nanky Rai, MD MPH, Primary Care Physician, Toronto ON 16. Michaela Hynie, Prof, Researcher, York University, Toronto ON 17. Meb Rashid, MD CCFP FCFP, Family Physician, Toronto ON 18. Sally Lin, MPH, Public Health, Victoria BC 19. Jonathon Herriot, BSc, MD, CCFP, Family Physician, Toronto ON 20. Carolina Jimenez, RN, MPH, Nurse, Toronto ON 21. Rushil Chaudhary, BHSc, Medical Student, Toronto ON 22. Nisha Toomey, MA (Ed), PhD Student, University of Toronto, Toronto ON 23. Matei Stoian, BSc, BA, Medical Student, McMaster University, Hamilton ON 24. Ruth Chiu, MD, Family Medicine Resident, Kingston ON 25. Priya Gupta, Medical Student, Hamilton ON 26. The Neighbourhood Organization (TNO), Toronto, ON 27. Mohammad Asadi-Lari, MD/PhD Candidate, University of Toronto, Toronto ON 28. Kathleen Hughes, MD Candidate, McMaster University, Hamilton ON 29. Nancy Vu, MPA, Medical Student, McMaster University, Hamilton ON 30. Ananthavalli Kumarappah, MD, Family Medicine Resident, University of Calgary, Calgary AB 31. Renee Sharma, MSc, Medical Student, University of Toronto, Toronto ON 32. Daniel Voloshin, Medical Student , McMaster Medical School , Hamilton ON 33. Sureka Pavalagantharajah, Medical Student, McMaster University, Hamilton ON 34. Alice Cavanagh , MD/PhD Student, McMaster University, Hamilton ON 35. Krish Bilimoria, MD(c), Medical Student, University of Toronto, North York ON 36. Bilal Bagha, HBSc, Medical Student, St. Catharines ON 37. Rana Kamhawy, Medical Student, Hamilton ON 38. Annie Yu, Medical Student, Toronto ON 39. Samantha Rossi, MA, Medical Student, University of Toronto, Toronto ON 40. Carlos Chan, MD Candidate, Medical Student, McMaster University, St Catharines ON 41. Jacqueline Vincent, MA, Medical Student, McMaster, Kitchener ON 42. Eliza Pope, BHSc, Medical Student, University of Toronto, Toronto ON 43. Cara Elliott, MD, Medical Student, Toronto ON 44. Antu Hossain, MPH, Public Health Professional, East York ON 45. Lyubov Lytvyn, MSc, PhD Student in Health Research, McMaster University, Burlington ON 46. Michelle Cohen, MD, CCFP, Family Physician, Brighton ON 47. Serena Arora, Medical Student, Hamilton ON 48. Saadia Sediqzadah, MD, Psychiatrist, Toronto ON 49. Maxwell Tran, Medical Student, University of Toronto, Toronto ON 50. Asia van Buuren, BSc, Medical Student, Toronto ON 51. Darby Little, Medical Student, University of Toronto, Toronto ON 52. Ximena Avila Monroy, MD MSc, Psychiatry Resident, Sherbrooke QC 53. Abeer Majeed, MD, CCFP, Family Physician, Toronto ON 54. Oluwatobi Olaiya, RN, Medical Student, Hamilton ON 55. Ashley Warnock, MSc, HBSc, HBA, Medical Student, McMaster University, Hamilton ON 56. Nikhita Singhal, Medical Student, Hamilton ON 57. Nikki Shah, MD Candidate, Medical Student, Hamilton ON 58. Karishma Ramjee, MD Family Medicine Resident , Scarborough ON 59. Yan Zhang, MSc, Global Health Professional, Toronto ON 60. Megan Saunders, MD, Family Physician, Toronto ON 61. Pooja Gandhi, MSc, Speech Pathologist, Mississauga ON 62. Julianna Deutscher, MD, Resident, Toronto ON 63. Diana Da Silva, MSW, Social Worker, Toronto ON Health Care Coverage for Migrants: An Open Letter to the Canadian Federal Government Sign here - https://goo.gl/forms/wAXTJE6YiqUFSo8x1 The Right Honourable Justin Trudeau, Prime Minister of Canada The Honourable Ginette P. Taylor, Minister of Health The Honourable Ahmed D. Hussen, Minister of Immigration, Refugees and Citizenship CC: Mr. Dainius Puras, United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health Dear Prime Minister Trudeau & Ministers Taylor and Hussen, We are writing to you today as members of the health community to urge your action on a crucial matter pertaining to health and human rights. You will no doubt be aware that the United Nations Human Rights Committee (UNHRC) recently issued a landmark decision condemning Canada for denying access to essential health care on the basis of immigration status based on the case of Nell Toussaint. Nell is a 49-year-old woman from Grenada who has been living in Canada since 1999, and who suffered significant negative health consequences as a result of being denied access to essential health care services. The UNHRC’s decision condemns Canada’s existing discriminatory policies, and finds Canada to be in violation of both the right to life, as well as the right to equality and freedom from discrimination. Based on its review of the International Covenant on Civil and Political Rights, the UNHRC has declared that Canada must provide Nell with adequate compensation for the significant harm she suffered. As well, they have called on Canada to report on its review of national legislation within a 180-day period, in order “to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life”. The United Nations Special Rapporteur has pushed for the same, calling on the government “to protect health-related rights to life, security of the person, and equality of individuals and groups in situations of vulnerability”. Nell is one of an estimated half million people in Ontario alone who are denied access to health coverage and care on the basis of their immigration status, putting their health at risk. As members of Canada’s health community, we are appalled by the details of this case as well as its broad implications, and call on the government to: 1. Comply with the UNHRC’s order to review existing laws and policies regarding health care coverage for irregular migrants. 2. Ensure appropriate resource allocation, so that all people in Canada are provided universal and equitable access to health care services, regardless of immigration status. 3. Provide Nell Toussaint with adequate compensation for the significant harm she has suffered as a result of not receiving essential health care services. For more information on this issue, please see our backgrounder here: https://goo.gl/V9vPyo. Sincerely, Arnav Agarwal, MD, Internal Medicine Resident, University of Toronto, Toronto ON Nisha Kansal, BHSc, MD Candidate, McMaster University, Hamilton ON Michaela Beder, MD, Psychiatrist, Toronto ON Ritika Goel, MD, Family Physician, Toronto ON
Documents
Less detail

Best practices for smartphone and smart-device clinical photo taking and sharing

https://policybase.cma.ca/en/permalink/policy13860
Date
2018-03-03
Topics
Health information and e-health
Ethics and medical professionalism
-principles-for-the-protection-of-patient-privacy-pd18-02-e.pdf © 2018 Canadian Medical Association
  1 document  
Policy Type
Policy document
Date
2018-03-03
Topics
Health information and e-health
Ethics and medical professionalism
Text
Clinical photography is a valuable tool for physicians. Smartphones, as well as other devices supporting network connectivity, offer a convenient, efficient method to take and share images. However, due to the private nature of the information contained in clinical photographs there are concerns as to the appropriate storage, dissemination, and documentation of clinical images. Confidentiality of image data must be considered and the dissemination of these images onto servers must respect the privacy and rights of the patient. Importantly, patient information should be considered as any information deriving from a patient, and the concepts outlined therefore apply to any media that can be collected on, or transmitted with, a smart-device. Clinical photography can aid in documenting form and function, in tracking conditions and wound healing, in planning surgical operations, and in clinical decision-making. Additionally, clinical photographs can provide physicians with a valuable tool for patient communication and education. Due to the convenience of this type of technology it is not appropriate to expect physicians to forego their use in providing their patients with the best care available. The technology and software required for secure transfer, communication, and storage of clinical media is presently available, but many devices have non-secure storage/dissemination options enabled and lack user-control for permanently deleting digital files. In addition, data uploaded onto server systems commonly cross legal jurisdictions. Many physicians are not comfortable with the practice, citing security, privacy, and confidentiality concerns as well as uncertainty in regards to regional regulations governing this practice.1 Due to concern for patient privacy and confidentiality it is therefore incredibly important to limit the unsecure or undocumented acquisition or dissemination of clinical photographs. To assess the current state of this topic, Heyns et al. have reviewed the accessibility and completeness of provincial and territorial medical regulatory college guidelines.2 Categories identified as vital and explored in this review included: Consent; Storage; Retention; Audit; Transmission; and Breach. While each regulatory body has addressed limited aspects of the overall issue, the authors found a general lack of available information and call for a unified document outlining pertinent instructions for conducting clinical photography using a smartphone and the electronic transmission of patient information.2 The discussion of this topic will need to be ongoing and it is important that physicians are aware of applicable regulations, both at the federal and provincial levels, and how these regulations may impact the use of personal devices. The best practices supported here aim to provide physicians and healthcare providers with an understanding of the scope and gravity of the current environment, as well as the information needed to ensure patient privacy and confidentiality is assessed and protected while physicians utilize accessible clinical photography to advance patient care. Importantly, this document only focusses on medical use (clinical, academic, and educational) of clinical photography and, while discussing many core concepts of patient privacy and confidentiality of information, should not be perceived as a complete or binding framework. Additionally, it is recommended that physicians understand the core competencies of clinical photography, which are not described here. The Canadian Medical Association (CMA) suggests that the following recommendations be implemented, as thoroughly as possible, to best align with the CMA policy on the Principles for the Protection of Patient Privacy (CMA Policy PD2018-02). These key recommendations represent a non-exhaustive set of best practices - physicians should seek additional information as needed to gain a thorough understanding and to stay current in this rapidly changing field. KEY RECOMMENDATIONS 1. CONSENT * Informed consent must be obtained, preferably prior, to photography with a mobile device. This applies for each and any such encounter and the purpose made clear (i.e. clinical, research, education, publication, etc.). Patients should also be made aware that they may request a copy of a picture or for a picture to be deleted. * A patient's consent to use electronic transmission does not relieve a physician of their duty to protect the confidentiality of patient information. Also, a patient's consent cannot override other jurisdictionally mandated security requirements. * All patient consents (including verbal) should be documented. The acquisition and recording of patient consent for medical photography/dissemination may be held to a high standard of accountability due to the patient privacy and confidentiality issues inherent in the use of this technology. Written and signed consent is encouraged. * Consent should be considered as necessary for any and all photography involving a patient, whether or not that patient can be directly recognized, due to the possibility of linked information and the potential for breach of privacy. The definition of non-identifiable photos must be carefully considered. Current technologies such as face recognition and pattern matching (e.g. skin markers, physical structure, etc.), especially in combination with identifying information, have the potential to create a privacy breach. * Unsecure text and email messaging requires explicit patient consent and should not be used unless the current gold standards of security are not accessible. For a patient-initiated unsecure transmission, consent should be clarified and not assumed. 2. TRANSMISSION * Transmission of photos and patient information should be encrypted as per current-day gold standards (presently, end-to-end encryption (E2EE)) and use only secure servers that are subject to Canadian laws. Explicit, informed consent is required otherwise due to privacy concerns or standards for servers in other jurisdictions. Generally, free internet-based communication services and public internet access are unsecure technologies and often operate on servers outside of Canadian jurisdiction. * Efforts should be made to use the most secure transmission method possible. For data security purposes, identifying information should never be included in the image, any frame of a video, the file name, or linked messages. * The sender should always ensure that each recipient is intended and appropriate and, if possible, receipt of transmission should be confirmed by the recipient. 3. STORAGE * Storing images and data on a smart-device should be limited as much as possible for data protection purposes. * Clinical photos, as well as messages or other patient-related information, should be completely segregated from the device's personal storage. This can be accomplished by using an app that creates a secure, password-protected folder on the device. * All information stored (on internal memory or cloud) must be strongly encrypted and password protected. The security measures must be more substantial than the general password unlock feature on mobile devices. * Efforts should be made to dissociate identifying information from images when images are exported from a secure server. Media should not be uploaded to platforms without an option for securely deleting information without consent from the patient, and only if there are no better options. Automatic back-up of photos to unsecure cloud servers should be deactivated. Further, other back-up or syncing options that could lead to unsecure server involvement should be ascertained and the risks mitigated. 4. Cloud storage should be on a Canadian and SOCII certified server. Explicit, informed consent is required otherwise due to privacy concerns for servers in other jurisdictions. 5. AUDIT & RETENTION * It is important to create an audit trail for the purposes of transparency and medical best practice. Key information includes patient and health information, consent type and details, pertinent information regarding the photography (date, circumstance, photographer), and any other important facts such as access granted/deletion requests. * Access to the stored information must be by the authorized physician or health care provider and for the intended purpose, as per the consent given. Records should be stored such that it is possible to print/transfer as necessary. * Original photos should be retained and not overwritten. * All photos and associated messages may be considered part of the patient's clinical records and should be maintained for at least 10 years or 10 years after the age of majority, whichever is longer. When possible, patient information (including photos and message histories between health professionals) should be retained and amalgamated with a patient's medical record. Provincial regulations regarding retention of clinical records may vary and other regulations may apply to other entities - e.g. 90 years from date of birth applies to records at the federal level. * It may not be allowable to erase a picture if it is integral to a clinical decision or provincial, federal, or other applicable regulations require their retention. 6. BREACH * Any breach should be taken seriously and should be reviewed. All reasonable efforts must be made to prevent a breach before one occurs. A breach occurs when personal information, communication, or photos of patients are stolen, lost, or mistakenly disclosed. This includes loss or theft of one's mobile device, texting to the wrong number or emailing/messaging to the wrong person(s), or accidentally showing a clinical photo that exists in the phone's personal photo album. * It should be noted that non-identifying information, when combined with other available information (e.g. a text message with identifiers or another image with identifiers), can lead to highly accurate re-identification. * At present, apps downloaded to a smart-device for personal use may be capable of collecting and sharing information - the rapidly changing nature of this technology and the inherent privacy concerns requires regular attention. Use of specialized apps designed for health-information sharing that help safeguard patient information in this context is worth careful consideration. * Having remote wipe (i.e. device reformatting) capabilities is an asset and can help contain a breach. However, inappropriate access may take place before reformatting occurs. * If a smartphone is strongly encrypted and has no clinical photos stored locally then its loss may not be considered a breach. * In the event of a breach any patient potentially involved must be notified as soon as possible. The CMPA, the organization/hospital, and the Provincial licensing College should also be contacted immediately. Provincial regulations regarding notification of breach may vary. Approved by the CMA Board of Directors March 2018 References i Heyns M†, Steve A‡, Dumestre DO‡, Fraulin FO‡, Yeung JK‡ † University of Calgary, Canada ‡ Section of Plastic Surgery, Department of Surgery, University of Calgary, Canada 1 Chan N, Charette J, Dumestre DO, Fraulin FO. Should 'smart phones' be used for patient photography? Plast Surg (Oakv). 2016;24(1):32-4. 2 Unpublished - Heyns M, Steve A, Dumestre DO, Fraulin FO, Yeung J. Canadian Guidelines on Smartphone Clinical Photography.
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Federal monitoring of medical assistance in dying regulations

https://policybase.cma.ca/en/permalink/policy13856
Date
2018-02-13
Topics
Ethics and medical professionalism
  1 document  
Policy Type
Response to consultation
Date
2018-02-13
Topics
Ethics and medical professionalism
Text
The Canadian Medical Association (CMA) is pleased to provide input on the proposed regulations of the federal monitoring of Medical Assistance in Dying in Canada. The CMA fully supports the proposed intent of the regulations, in particular, public accountability and transparency and safeguards for vulnerable patient populations. Tracking trends and carrying out research is very important to monitor the implementation and implications of medical assistance in dying. The CMA further supports the intent to provide electronic reporting and guidance documents, and to leverage any synergies between the federal and provincial/territorial governments, especially to prevent duplication and to promote consistency in reporting across the country. The CMA would like to raise the following critical areas for your consideration: 1. Definitions/parameters of terms There continues to be a need to more clearly define several terms to ensure consistency of reporting. For example: a. Who constitutes a “practitioner”? One can argue that there is a broad scope of who is “a medical practitioner or nurse practitioner”. Is it the practitioner who provides MAiD? Or he practitioner who first reads a patient’s request for MAiD? Or is the first practitioner? Or second practitioner who assesses the patient? b. What constitutes a therapeutic relationship (as one of the eight proposed items to be collected about the practitioner)? A therapeutic relationship is not required to access MAiD. This criterion should be removed and if not, given the differences in opinion in the health professions as to what constitutes a therapeutic relationship includes, it should be clearly defined. c. What constitutes a request, a written request, the receipt of a request? If reporting obligations are “triggered” by a patient’s “written request”, at what point is that request actually triggered? The very first practitioner who receives the patient’s written request? Or the practitioner who conducts the eligibility assessment upon receipt of the written request? Or the practitioner who provides the prescription or carries out the procedure? d. On a related point, without clear definitions, any future comparative analysis of research or trends will be difficult as there will be no common starting point. e. There continues to be confusion on how to count or when to start counting the required 10 clear days. There are many reasons why this requires more clarity. 2. Collection and protection of data We applaud Health Canada for further reducing and revising data requirements. We submit, however, that further reductions are required for several reasons, including adherence to privacy best practices that require the collection of the least amount of data necessary to achieve reasonable purposes. In particular: a. In view of the quantity and highly personal and sensitive data that will be collected about patients and practitioners, data sharing agreements should be required; for example, agreements between the federal government and provincial/territorial governments or between researchers and others requesting use of the data to facilitate the appropriate sharing of data. b. Collection of personal information should be limited to what is relevant to the purpose of monitoring medical assistance in dying. Personal information, such as the patient’s full postal code, marital status, or principal occupation is beyond the scope of the eligibility criteria outlined in the legislation and thus beyond the scope of the purpose of monitoring the impact of the legislation. c. Any “characteristics” of the patient should refer only to the eligibility criteria. If other data will be collected beyond that scope, the justification for doing so, and the characteristics themselves, should be clearly outlined. d. The scope of the information collected about the practitioner could be narrowed. As is, it is very broad – a list of eight items – while the Quebec regulations, as a comparator, have only three-four items that must be collected in relation to the physician who administers MAiD. 3. Additional requirements Schedule 4 [section 2(i)] of the proposed regulations requires that the practitioner opine as to whether the patient met, or did not meet, all of the eligibility criteria outlined in the legislation – with two significantly expanded requirements; the requirements that the practitioner: 1) provide an estimate as to the amount of time MAiD shortened the patient’s life; and 2) indicate the anticipated likely cause of natural death of the patient. These additional requirements are beyond the letter and spirit of the legislation and, in many ways, are in direct contradiction to the legislation. The Legislature was not unaware when it drafted the Act that it did not follow other jurisdictions’ criteria requiring either a terminal illness or a prognosis of time within which the practitioner believed the patient would die, e.g., “within the next 6 months”. It is specifically the lack of a timeframe that makes the legislation unique and provides flexibility for both patients and practitioners. By adding these two additional criteria for reporting, in effect, they become additional criteria for eligibility which is, as stated above, beyond the scope, and in contradiction to, the legislation. 4. Lack of clarity of reasons for ineligibility There is a potential for misunderstanding as to whether reasons are required when the patient does not meet the criteria under Schedule 4, section 2(a) – (h). The introduction to section 2 speaks to the practitioner giving an indication as to (a) whether the patient met or (b) did not meet the criteria. However, in the itemized criteria [2(a)-(h)] it only speaks to the practitioner having to provide reasons when the patient meets the criteria (and not when the patient has not met the criteria). It would be helpful to specify that reasons should be required when the patient does and does not meet the criteria. This is also crucial for the publication of the Minister of Health’s annual report requiring that the reasons, and which eligibility criteria were not met, be addressed. Conclusion The CMA recognizes the importance of regulations to capture the provision, collection, use, and disposal of information for the purpose of monitoring MAiD. The CMA cautions against introducing reporting requirements that are beyond the scope of the legislation. As noted in the legislation, practitioners who fail to provide information under the regulations may be found guilty under the Criminal Code and subject to possible imprisonment. It is thus imperative that the federal government drafts clear regulations that respect the legislation, privacy, research ethics, and a de minimus approach. .
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