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The evolving professional relationship between Canadian physicians and our health care system: Where do we stand?

https://policybase.cma.ca/en/permalink/policy10389
Last Reviewed
2019-03-03
Date
2012-05-26
Topics
Ethics and medical professionalism
  1 document  
Policy Type
Policy document
Last Reviewed
2019-03-03
Date
2012-05-26
Topics
Ethics and medical professionalism
Text
This paper discusses the current state of the professional relationship between physicians and the health care system. A review of the concept of medical professionalism, and the tensions that can arise between the care of individual patients and a consideration of the broader needs of society, provides some basic groundwork. Our understanding of what it means to be a physician has evolved significantly over the years, and the medical profession is now being challenged to clarify the role it is willing to play in order to achieve transformation of our health care system. We have arrived at this point due to a convergence of several factors. Regionalization of health care has led to a change in the leadership roles played by practising physicians and to the opportunities they have for meaningful input into system change. Physicians are now also less likely to be involved in hospital-based care, which has resulted in a loss of collegiality and interactions with peers. Changing models of physician engagement status and changing physician demographics have also presented new and unique issues and challenges over the past few years. The Canadian Medical Association (CMA) suggests that its physician members and other stakeholders employ a "AAA" lens to examine the challenges and opportunities currently facing Canadian physicians as they attempt to engage with the health care system: Autonomy, Advocacy and Accountability. These important concepts are all underpinned by strong physician leadership. Leadership skills are fundamentally necessary to allow physicians to be able to participate actively in conversations aimed at meaningful system transformation. KEY CMA RECOMMENDATIONS ARE AS FOLLOWS: Physicians should be provided with the leadership tools they need, and the support required, to enable them to participate individually and collectively in discussions on the transformation of Canada's health care system. Physicians need to be provided with meaningful opportunities for input at all levels of decision-making, with committed and reliable partners, and must be included as valued collaborators in the decision-making process. Physicians have to recognize and acknowledge their individual and collective obligations (as one member of the health care team and as members of a profession) and accountabilities to their patients, to their colleagues and to the health care system and society. Physicians must be able to freely advocate when necessary on behalf of their patients in a way that respects the views of others and is likely to bring about meaningful change that will benefit their patients and the health care system. Physicians should participate on a regular and ongoing basis in well-designed and validated quality improvement initiatives that are educational in nature and will provide them with the feedback and skills they need to optimize patient care and outcomes. Patient care should be team based and interdisciplinary with smooth transition from one care setting to the next and funding and other models need to be in place to allow physicians and other health care providers to practise within the full scope of their professional activities. INTRODUCTION The concept of medical professionalism, at its core, has always been defined by the nature and primacy of the individual doctor-patient relationship, and the fiduciary obligation of physicians within this relationship. The central obligation of the physician is succinctly stated in the first tenet of the CMA Code of Ethics: Consider first the well-being of the patient.1 Since the latter half of the 20th century, however, there has been a growing emphasis on the need for physicians to also consider the collective needs of society, in addition to those of their individual patients. As stated in the CMA Code of Ethics: Consider the well-being of society in matters affecting health. This shift in thinking has happened for at least two reasons. First, there have been tremendous advances in medical science that now enable physicians to do much more to extend the length and quality of life of their patients, but these advances inevitably come at a cost which is ultimately borne by society as a whole. Second, since World War II, Canadian governments have been increasingly involved in the financing of health care through taxation revenues. As a result, there have been growing calls for physicians to be prudent in their use of health care resources, and to be increasingly accountable in the way these resources are employed. The 2002 American Board of Internal Medicine (ABIM) Foundation Charter on Medical Professionalism calls for physician commitment to a just distribution of finite resources: "While meeting the needs of individual patients, physicians are required to provide health care that is based on the wise and cost-effective management of limited clinical resources."2 This has also been described as civic professionalism. Lesser et al have put forward a systems view of professionalism that radiates out from the patient-physician relationship to broader interactions with members of the health care team, the training environment and to the external environment, dealing with payers and regulators and also addressing the socio-economic determinants of health.3 Understandably, given that the resources available for health care are finite, tensions will arise between the care of individual patients and the collective needs of society, and these tensions can at times be very difficult to resolve for individual medical practitioners. As stated in the CMA policy Medical Professionalism (Update 2005): Medical professionalism includes both the relationship between a physician and a patient and a social contract between physicians and society. Society grants the profession privileges, including exclusive or primary responsibility for the provision of certain services and a high degree of self-regulation. In return, the profession agrees to use these privileges primarily for the benefit of others and only secondarily for its own benefit. 4 Over time the delivery, management and governance of health care have become more complex, and as a result the health care sector now accounts for roughly one in 10 jobs in Canada. There are more than two dozen regulated health professions across Canada, as well as numerous professional managers employed in various capacities, many of whom have had little or no exposure to the everyday realities of the practice of clinical medicine. Notwithstanding the acknowledgement of the very real and important need for inter-professional collaboration and teamwork, inevitably this creates competition for influence in the health care system. The CMA 2005 update of its policy on medical professionalism acknowledges the need for change. While maintaining responsibility for care of the patient as a whole, physicians must be able to interact constructively with other health care providers within an interdisciplinary team setting. The relationship of physicians with their colleagues must be strengthened and reinforced. Patient care benefits when all health care practitioners work together towards a common goal, in an atmosphere of support and collegiality. Now, physicians are being challenged to clarify exactly what it is that they are prepared to do in order to advance the much-needed transformation of our health care system, and how they will partner with patients, other care providers and the system in order to achieve this common goal. This provides a significant opportunity for physicians to continue their leadership role in the health care transformation initiative in the interests of their patients, while at the same time redefining their relationship with the system (understood in this context as health care administrators, governments and their representatives, health districts, health care facilities and similar organizations) in order to ensure that they have a meaningful and valued seat at the decision-making table, now and in the future. BACKGROUND The common refrain among health administrators, health ministry officials and health policy analysts for the past decade and longer has been that physicians are "not part of the health care system", that they are independent contractors and not employees, and that they are too often part of the problem and not the solution. Over this period of time, several developments have resulted in a diminished role of physicians in clinical governance in Canada and have, to varying degrees, transformed the professional and collegial relationship between physicians and their health regions, health care facilities and communities to one that is increasingly governed by legislative fiat or regulation. Regionalization Beginning with New Brunswick in 1992, all jurisdictions except Ontario, the Yukon Territory and Nunavut have adopted a regional governance model. This change has eliminated all hospital and community services boards within a geographic region and replaced them with a single regional board. Clinical governance is now administered through a regional medical advisory committee (MAC). Some provinces such as Saskatchewan recognize the role of the district (regional) medical staff association. This has had a profound impact in reducing the number of physicians engaged in the clinical governance of health care institutions. Another by-product of regionalization is that in virtually all jurisdictions, physicians no longer sit on governing boards. While physicians continue to serve as department heads and section chiefs within regions and/or individual hospital facilities, the level of support and financial compensation to do so varies greatly, particularly outside major regions and institutions, and there has been a lack of physician interest in such positions in some places. Practice environment In addition to a diminished presence in clinical governance, physicians are less likely to be actively involved in hospitals than they were previously. Anecdotally, many physicians, particularly in larger urban communities, describe having been "pushed out" of the hospital setting, and of feeling increasingly marginalized from the decision-making process in these institutions. Another result of the diminished engagement with hospitals has been the loss of the professional collegiality that used to be fostered through interaction in the medical staff lounge or through informal corridor consultations. In the community setting, there have been some positive developments in terms of physician leadership and clinical governance. Ontario and Alberta have implemented new primary care funding and delivery models that promote physician leadership of multidisciplinary teams, and at least two-thirds of the family physicians in each of these jurisdictions have signed on. British Columbia has established Divisions of Family Practice, an initiative of the General Practice Services Committee (a joint committee of the BC Ministry of Health and the BC Medical Association), in which groups of family physicians organize at the local and regional levels and work in partnership with the Health Authority and the Ministry of Health to address common health care goals. Looking ahead, regionalization is also likely to affect physicians in community-based practice. There is a clear trend across Canada to require all physicians within a region to have an appointment with the health region if they want to access public resources such as laboratory and radiology services. In the future this may also result in actions such as mandated quality improvement activities which may be of variable effectiveness and will not necessarily be aligned with the learning needs of physicians. Physician engagement status Traditionally physicians have interfaced with hospitals through a privileges model. This model, which has generally worked well, aims to provide the physician with the freedom to reasonably advocate for the interests of the patient.5 In this model, legislation and regulations also require that there are minimum procedures in place for renewing, restricting, and terminating privileges, and that procedures are set out to ensure that this takes place within a fair and structured framework. The hospital's MAC generally reviews physician privileges applications and recommends appointment and reappointment. The MAC thus plays an integral role in ensuring the safety of care within the region or hospital.5 There has been increasing attention recently on engaging in other types of physician-hospital relationships, including employment or contractual arrangements. This type of arrangement can vary from an employment contract, similar to that used by other professional staff such as nurses and therapists, to a services agreement whereby the physician provides medical services to the hospital as an independent contractor.5 However, there are concerns, expressed by the Canadian Medical Protective Association (CMPA) and others, that many of the procedural frameworks and safeguards found in hospital bylaws pertaining to the privileges model may not necessarily extend to other arrangements, and that physicians entering into these contractual agreements may, in some cases, find their appointment at the hospital or facility terminated without recourse. Under such arrangements the procedural fairness and the right of appeal available under the privilege model may not be available to physicians. One relatively new approach is the appointment model, which aims to combine many of the protections associated with the privileges model with the advantages of predictability and specificity of the employment model. It generally applies the processes used to grant or renew privileges to the resolution of physician performance-related issues.5 It has been argued that changes in appointment status and relationship models can have a detrimental impact on the relationship between practitioners and health care facilities.6 While this has been reported specifically within the context of Diagnostic Imaging, the same may hold true for other specialties as well. It should also be noted that the issues raised in this paper are applicable to all members of the profession, regardless of their current or future practice arrangements or locations. Changing physician demographics and practice patterns It is well recognized that physician demographics and practice patterns have changed significantly over the past several years. Much has been written about the potential impact of these changes on medicine, and their impact on patient care, on waiting lists and on the ability of patients to access clinical services.7 It is also acknowledged that "lifestyle factors," that is to say the attempt by many physicians to achieve a healthier work-life balance, may play a role in determining the type and nature of clinical practice chosen by new medical graduates, the hours they will work and the number of patients they will see. All of these changes mean that clinical practices may have smaller numbers of patients and may be open shorter hours than in the past. Physicians are being increasingly challenged to outline their understanding of their commitment to ensuring that all patients have timely access to high quality health care within the Canadian public system, while balancing this with their ability to make personal choices that are in their best interests. Put another way, how can we assist physicians in adjusting their clinical practices, at least to some extent, based on the needs of the population? DISCUSSION While there are clearly challenges and barriers to physician participation in meaningful transformation of the health care system, there are also opportunities for engagement and dialogue, particularly when the doctors of Canada show themselves to be willing and committed partners in the process. Health care transformation cannot be deferred just because it involves difficult decisions and changes to the status quo. Regardless of how we have reached the current situation, relationships between physicians and other parties must evolve to meet future needs. Physicians need to be assisted in their efforts in this regard, both by local health boards and facilities, and by organizations such as the CMA and its provincial and territorial counterparts. Physicians, individually and collectively, need to demonstrate what they are willing to do to assist in the process and what they are willing to contribute as we move forward, and they need to commit to having the medical profession be an important part of the solution to the challenges currently facing the Canadian system. We examine some of these challenges through the "AAA" lens of Autonomy, Advocacy and Accountability, which are underpinned by the concept of Physician Leadership. Autonomy To a large extent, physicians continue to enjoy a significant degree of what is commonly termed clinical or professional autonomy, meaning that they are able to make decisions for their individual patients based on the specific facts of the clinical encounter. In order to ensure that this autonomy is maintained, physicians need to continue to embrace the concept of clinical standards and minimization of inter-practice variations, where appropriate, while also recognizing the absolute need to allow for individual differences in care based on the requirements of specific patients. Professional autonomy plays a vital role in clinical decision-making, and it is at the heart of the physician-patient relationship. Patients need to feel that physicians are making decisions that are in the best interest of the patient, and that physicians are not unduly limited by external or system constraints. As part of this decision-making, physicians may also need to consider carefully the appropriate balance between individual patient needs and the broader societal good. In recent years, governments have sometimes made use of the "legislative hammer" to force physicians to conform to the needs of the health system, thus undermining physicians' individual or personal autonomy. Historically, physicians have organized themselves to provide 24-hour coverage of the emergency room and other critical hospital services. This has proven increasingly challenging in recent years, particularly in the case of small hospitals that serve sparsely populated areas where there are few physicians. Physicians need to continue to make sure that they do not confuse personal with professional autonomy and that they continue to ensure that health care is truly patient-centred. Physicians have rights but also obligations in this regard and they need to make sure that they continue to use a collaborative approach to leadership and decision-making. This includes an ongoing commitment to the concept of professionally-led regulation and meaningful physician engagement and participation in this system. While physicians will continue to value and protect their clinical and professional autonomy, and rightly so as it is also in the best interests of their patients, they may need to consider which aspects of personal and individual autonomy they may be willing to concede for the greater good. For example, physicians may need to work together and collaboratively with administrators and with the system to ensure that call coverage is arranged and maintained so that it need not be legislatively mandated, or imposed by regions or institutions. They may need to consider changing the way they practice in order to serve a larger patient population so that patients in need of a primary care physician do not go wanting, and so that the overall patient care load is more evenly balanced amongst colleagues. New primary care models established in Ontario and Alberta over the past decade that provide greater out-of-hours coverage are one example of such an initiative. By working collaboratively, both individually and collectively, physicians are finding creative ways to balance their very important personal autonomy with the needs of the system and of their patients. These efforts provide a solid foundation upon which to build as the profession demonstrates its willingness to substantively engage with others to transform the system. To paraphrase from the discussion at the CMA's General Council meeting in August 2011: Physicians need to carefully examine their individual and collective consciences and show governments and other partners that we are willing to play our part in system reform and that we are credible partners in the process. All parties in the discussion, not only physicians, must be able to agree upon an appropriate understanding of professional autonomy if the health care system is to meet the current and future needs of Canadians. Advocacy Physician advocacy has been defined as follows: Action by a physician to promote those social, economic, educational and political changes that ameliorate the suffering and threats to human health and well-being that he or she identifies through his or her professional work and expertise.8 This can consist of advocacy for a single patient to assist them in accessing needed funding for medications, or lobbying the government for changes at a system level. How and when individual physicians choose to undertake advocacy initiatives depends entirely on that individual practitioner, but physicians as a collective have long recognized their obligation to advocate on behalf of their individual patients, on behalf of groups of patients, and at a societal level for changes such as fairer distribution of resources and adequate pandemic planning. Traditionally, physicians have served as advocates for their patients in a number of arenas; however, various factors such as provincial/territorial legislation, regulatory authorities, and hospital contracts have combined to make them more reluctant to take on this important role and as a result overall patient care may suffer and the patient-physician relationship may be threatened. Increasingly, hospital bylaws urge or require physicians to consult with their institution or health region before going public with any advocacy statements, and in at least one health region physicians are required to sign a confidentiality agreement. Because of this, many physicians fear reprisal when they decide to act as an advocate. The ability to undertake advocacy initiatives is a fundamental concept and principle for Canadian physicians. Indeed, the CMA Code of Ethics encourages physicians to advocate on behalf of the profession and the public. Patients need to feel that their concerns are heard, and physicians need to feel safe from retribution in bringing those concerns forward. A well-functioning and respectful advocacy environment is essential to health care planning. Health care is about making choices every day. Governments struggling to balance budgets should be aware that the public can accept that hard choices must and will get made - but they are less likely to be supportive if physicians and their patients do not feel that their opinions are sought and considered as part of the process. Frontline health care providers, many of whom work in relative isolation in an office or community setting, also need to feel that they have a voice. The CMA supports the need for a forum where primary care physicians can speak with one voice (and make sure that this voice is heard and respected) in a community setting. In addition to advocating for issues related directly to patient care, physicians, as community leaders, may also be called upon to advocate for other issues of societal importance, such as protection of the environment or social determinants of health. These advocacy undertakings can also be of great importance. There can be a fine line between advocacy that is appropriate and is likely to affect important and meaningful change, and advocacy that others will perceive as being obstructive or counterproductive in nature. To further complicate matters, what might be seen as appropriate advocacy in one circumstance might not be in a different setting. Physicians should be clear on whose behalf they are speaking and whether they have been authorized to do so. If they have any questions about the possible medicolegal implications of their advocacy activities, they may also wish to contact their professional liability protection provider (e.g., CMPA) for advice in these instances. Depending on the facts of the individual circumstances, physicians may need to consider other factors as well when deciding if, when and how to undertake advocacy activities. They should also be aware that their representative medical organizations, such as national specialty societies, provincial and territorial medical associations and the CMA, may be able to assist them with their initiatives in certain situations. Physicians should not feel alone when advocating for their patients, particularly when this is done in a reasonable manner and in a way that is likely to effect meaningful and important change. Accountability Physician accountability can be seen to occur at three levels: accountability to the patients they serve, to society and the health care system and to colleagues and peers. Accountability to patients The physician-patient relationship is a unique one. Based on, optimally, absolute trust and openness, this relationship allows for a free exchange of information from patient to physician and back again. Physicians often see patients at their most vulnerable, when they are struggling with illness and disease. While other health care providers make essential contributions to patient care, none maintain the unique fiduciary relationships that are at the heart of the physician's role and which are recognized by law. Physicians are accountable to their individual patients in a number of important ways. They provide clinical services to their patients and optimize their availability so that patients can be seen and their needs addressed in a timely fashion. They follow up on test results. They facilitate consultations with other physicians and care providers and follow up on the results of these consultations when needed. They ensure that patients have access to after hours and emergency care when they are not personally available. Physicians can also fulfill their obligation to be accountable to patients in other ways. They can participate in accreditation undertakings to ensure that their practices meet accepted standards. They can ensure, through lifelong learning and maintenance of competency activities, that they are making clinical decisions based on the best available evidence. They can undertake reviews of their prescribing profiles to ensure that they are consistent with best current standards. All of these activities can also be used to maximize consistencies within and between practices and minimize inter-practice variability where appropriate. Accountability to society and the health care system Physician accountability at this level is understandably more complex. In general, society and the health care system in Canada provide physicians with financial compensation, with a significant degree of clinical autonomy as reflected by professionally-led regulation, and with a high level of trust. In some cases, physicians are also provided with a facility in which to practice and with access to necessary resources such as MRIs and operating rooms. In return, physicians agree to make their own individual interests secondary in order to focus on those of their patients, and they agree to provide necessary medical services. Accountability then can be examined based on the extent that these necessary services are provided (i.e. patients have reasonable access to these services) and also the level of quality of those services. Clearly, neither access nor quality can be considered in isolation of the system as a whole, but for the purposes of this paper the focus will be on the role of the physician. The issue of level and comprehensiveness of service provision has been considered to some extent above under the concept of physician autonomy. Physicians as individuals and as a collective need to ensure that patients have access to timely medical care and follow up. They also need to make sure that the transition from one type of care to another (for example, from the hospital to the community setting) is as seamless as possible, within the current limitations of the system. Collectively and individually, physicians also have an obligation to make sure that the quality of the care they provide is of the highest standard possible. They should strive for a "just culture of safety", which encourages learning from adverse events and close calls to strengthen the system, and where appropriate, supports and educates health care providers and patients to help prevent similar events in the future.9 Thousands of articles and hundreds of books have been published on the subjects of quality assurance and quality improvement. From a physician perspective, we want to be able to have access to processes and resources that will provide us with timely feedback on the level of quality of our clinical care in a way that will help us optimize patient outcomes and will be seen as educational in nature rather than punitive. As a self-regulated profession, medicine already has strong accountability mechanisms in place to ensure the appropriate standards of care are maintained. To ensure that physicians are able to meet their obligation to be accountable to the health care system for high quality care, the CMA has developed a series of recommendations for Continuous Quality Improvement (CQI) activities (see box below). Physicians need to take ownership of the quality agenda. New medical graduates are entering practice having come from training systems where they have access to constant feedback on their performance, only to find themselves in a situation where feedback is non-existent or of insufficient quality to assist them in caring for their patients. While regulators and health care facilities have a legitimate interest in measuring and improving physician performance, ultimately physicians themselves must take responsibility for ensuring that they are providing their patients with the highest possible standard of care, and that mechanisms are in place to ensure that this is in fact the case. Accountability to colleagues Physicians are also accountable to their physician peers and to other health care providers. While much of this accountability is captured by the concept of "collegiality," or the cooperative relationship of colleagues, there are other aspects as well. Anecdotal evidence suggests strongly that many physician leaders find themselves marginalized by their peers. They describe being seen as having "gone over to the other side" when they decide to curtail or forego their clinical practices in order to participate in administrative and leadership activities. Physicians should instead value, encourage and support their peers who are dedicating their time to important undertakings such as these. As well, physicians should actively engage with their administrative colleagues when they have concerns or suggestions for improvement. Collaboration is absolutely vital to the delivery of safe and quality care. Physicians also need to make sure that they do everything they can to contribute to a "safe" environment where advocacy and CQI activities can be undertaken. This can mean encouraging physician colleagues to participate in these initiatives, as well as serving as a role model to peers by participating voluntarily in CQI undertakings. Physicians are also accountable to ensure that transition of care from one physician to another occurs in as seamless a manner as possible. This includes participating in initiatives to improve the quality and timeliness of both consultation requests and results, as well as ensuring professional and collegial communications with other physicians and with all team members. Finally, physicians need to support each other in matters of individual health and well-being. This can include support and care for colleagues suffering from physical or psychological illness, as well as assisting with accommodation and coverage for duty hours and professional responsibilities for physicians who are no longer able to meet the demands of full-time practice for whatever reason. Physician Leadership "You will not find a high performing health system anywhere in the world that does not have strong physician leadership." Dan Florizone, Deputy Minister of Saskatchewan Health As we can see from the discussion above, having strong physician leaders is absolutely critical to ensuring that the relationship between physicians and the health care system is one of mutual benefit. Physicians as a collective have an obligation to make sure that they support both the training required to produce strong physician leaders, as well as providing support for their colleagues who elect to undertake this increasingly important role. Physicians are well-positioned to assume leadership positions within the health care system. They have a unique expertise and experience with both the individual care of patients, as well as with the system as a whole. As a profession, they have committed to placing the needs of their patients above those of their own, and this enhances the credibility of physicians at the leadership level as long as they stay committed to this important value. Leadership is not just about enhancing the working life of physicians, but is about helping to ensure the highest possible standard of patient care within an efficient and well-functioning system. As part of their leadership activities, physicians need to ensure that they are consistently engaged with high quality and reliable partners, who will deliver on their promises and commitments, and that their input is carefully considered and used in the decision-making process. These partners can include those at the highest level of government, and must also include others such as medical regulators and senior managers. Without ensuring that they are speaking with the right people, physicians cannot optimize their leadership initiatives. Physician leadership activities must be properly supported and encouraged. Many physicians feel increasingly marginalized when important meetings or training opportunities are scheduled when they are engaged in direct patient care activities. Non-clinician administrators have time set aside for these activities and are paid to participate, but physicians must either miss these discussions in order to attend to the needs of their patients, or cancel clinics or operating room times. This means that patient care is negatively impacted, and it presents a (sometimes significant) financial disincentive for physicians to participate. Some jurisdictions have recognized this as a concern and are ensuring that physicians are compensated for their participation. Patients want their physicians to be more involved in policy-making decisions and this must be enabled through the use of proper funding mechanisms, reflective learning activities, continuing professional development credits for administrative training and participation, assisting in the appropriate selection of spokespersons including guidelines on how to select them, and guidelines for spokespersons on how to provide meaningful representation of the profession's views. Physician leadership training must take place throughout the continuum of medical education, from the early days of medical school through to continuing professional development activities for those in clinical practice. Physicians with an interest in and aptitude for leadership positions should ideally be identified early on in their careers and encouraged to pursue leadership activities and training through means such as mentorship programs and support from their institutions to attend training courses and meetings where they will be able to enhance and refine their leadership skills. There has been action on several fronts to support the organized professional development of physicians in leadership roles. Since the 1990s the Royal College of Physicians and Surgeons of Canada (RCPSC) has been implementing its CanMEDs framework of roles and competencies in the postgraduate medical training programs across Canada, and this has also been adopted by the College of Family Physicians of Canada (CFPC). The CanMEDs framework sets out seven core roles for physicians. Two that are most pertinent to the relationship between physicians and the health care system are those of manager and health advocate.10 These roles highlight the importance of physician involvement in leadership and system engagement activities, and are relevant for physicians in training as well as those in practice. As managers, physicians are integral participants in health care organizations, organizing sustainable practices, making decisions about allocating resources, and contributing to the effectiveness of the health care system. As health advocates, physicians responsibly use their expertise and influence to advance the health of individual patients, communities and populations. A number of key enabling competencies have been identified for each role, and the RCPSC has developed a variety of resource materials to support the framework. For almost 30 years, the CMA has been offering the Physician Manager Institute (PMI) program in order to provide training for physicians pursuing leadership and management positions. PMI is offered in "open enrolment" format in major cities across Canada, and also "in house" through longstanding associations with hospitals and health regions (e.g., Calgary zone of Alberta Health Services [AHS]). In 2010 the CMA and the Canadian Society of Physician Executives introduced the Canadian Certified Physician Executive (CCPE) Program. The CCPE is a peer-assessed credential that can be attained either through an academic route that is based on completion of PMI courses or through a practice-eligibility route based on formal leadership experience.11 The CMA also partners with several provincial and territorial medical associations to provide leadership training. Currently CMA has agreements with the Saskatchewan, Ontario and Quebec medical associations and this will extend to the four Atlantic medical associations and the Alberta Medical Association/AHS in 2012. In addition, a number of university business schools have developed executive program offerings for health leaders. During the past decade, a number of physicians have taken up CEO positions in Canada's major academic health organizations. Internationally, it has been recognized that physician leadership is critical to the success of efforts to improve health services.12, 13 Having well trained and qualified physicians in leadership roles is critical in making sure that physicians continue to play a central role in the transformation of the Canadian health care system. The CMA and its membership unreservedly support our physician colleagues who dedicate their time and energies to these leadership activities and the CMA will continue to play an integral part in supporting and training the physician leaders of the future. CONCLUSION: THE CMA'S VISION OF THE NEW PROFESSIONAL RELATIONSHIP BETWEEN CANADIAN PHYSICIANS AND OUR HEALTH CARE SYSTEM We have explored the factors that have brought us to this point, as well as the issues that must be examined and addressed to enable us to move forward. It is now time for the physicians of Canada to commit to meaningful participation in the process of transforming our health care system. This can only be achieved through the concerted efforts of all parties, including governments, health authorities, health care facilities, physicians and other health care providers. It will not be easy, and it is not likely that this transformation will take place without commitment and sacrifice on our part. However, now is the time for physicians to demonstrate to their patients, to their colleagues and to society that they are willing to do their share and play their role in this critically important process, at this critically important time. Doing so will help them to achieve the CMA's vision of the new professional relationship between Canadian physicians and the health care system. In this vision: Physicians are provided with the leadership tools they need, and the support required, to enable them to participate individually and collectively in discussions on the transformation of Canada's health care system. Physicians are provided with meaningful opportunities for input at all levels of decision-making, with committed and reliable partners, and are included as valued collaborators in the decision-making process. Physicians recognize and acknowledge their individual and collective obligations (as one member of the health care team and as members of a profession) and accountabilities to their patients, to their colleagues and to the health care system and society. Physicians are able to freely advocate when necessary on behalf of their patients in a way that respects the views of others and is likely to bring about meaningful change that will benefit their patients and the health care system. Physicians participate on a regular and ongoing basis in well-designed and validated quality improvement initiatives that are educational in nature and will provide them with the feedback and skills they need to optimize patient care and outcomes. Patient care is team based and interdisciplinary with seamless transition from one care setting to the next and funding and other models are in place to allow physicians and other health care providers to practise within the full scope of their professional activities. REFERENCES __________________________ 1. Canadian Medical Association. CMA Code of Ethics. http://policybase.cma.ca/PolicyPDF/PD04-06.pdf. Accessed 05/20/11. 2. ABIM Foundation. Medical professionalism in the new millennium: a physician charter. Annals of Internal Medicine 2002; 136(3): 243-6. 3. Lesser C, Lucey C, Egener B, Braddock C, Linas S, Levinson W. A behavioral and systems view of professionalism. JAMA 2010; 304(24): 2732-7. 4. Canadian Medical Association. Medical professionalism 2005 update. http://policybase.cma.ca/dbtw-wpd/Policypdf/PD06-02.pdf. Accessed 06/03/11. 5. Canadian Medical Protective Association. Changing physician : hospital relationships. Managing the medico-legal implications of change. 2011. https://www.cmpa-acpm.ca/cmpapd04/docs/submissions_papers/com_2011_changing_physician-e.cfm. Accessed 02/07/12. 6. Thrall JH. Changing relationship between radiologists and hospitals Part 1: Background and major issues. Radiology 2007; 245: 633-637. 7. Reichenbach L, Brown H. Gender and academic medicine: impact on the health workforce. BMJ. 2004; 329: 792-795. 8. Earnest MA, Wong SL, Federico SG. Perspective: Physician advocacy: what is it and how do we do it? Acad Med 2010 Jan; 85(1): 63-7. 9. Canadian Medical Protective Association. Learning from adverse events: Fostering a just culture of safety in Canadian hospitals and health care institutions. 2009. http://www.cmpa-acpm.ca/cmpapd04/docs/submissions_papers/com_learning_from_adverse_events-e.cfm. Accessed 02/07/12. 10. Royal College of Physicians and Surgeons of Canada. CanMEDS 2005 Framework. http://rcpsc.medical.org/canmeds/bestpractices/framework_e.pdf. Accessed 05/20/11. 11. Canadian Society of Physician Executives and Canadian Medical Association. Canadian Certifies Physician Executive. Candidate Handbook. http://www.cma.ca/multimedia/CMA/Content_Images/Inside_cma/Leadership/CCPE/2012CCPE-Handbook_en.pdf. Accessed 05/20/11. 12. Ham C. Improving the performance of health services: the role of clinical leadership. Lancet 2003; 361: 1978-80. 13. Imison C, Giordano R. Doctors as leaders. BMJ 2009; 338: 979-80.
Documents
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Evaluation of clinical practice guidelines

https://policybase.cma.ca/en/permalink/policy10448
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Health systems, system funding and performance
Resolution
GC12-21
The Canadian Medical Association calls for evidence-based evaluation of clinical practice guidelines in terms of patient outcomes, appropriateness and cost-effectiveness.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Health systems, system funding and performance
Resolution
GC12-21
The Canadian Medical Association calls for evidence-based evaluation of clinical practice guidelines in terms of patient outcomes, appropriateness and cost-effectiveness.
Text
The Canadian Medical Association calls for evidence-based evaluation of clinical practice guidelines in terms of patient outcomes, appropriateness and cost-effectiveness.
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Clinical practice guidelines

https://policybase.cma.ca/en/permalink/policy10456
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Physician practice/ compensation/ forms
Ethics and medical professionalism
Resolution
GC12-19
The Canadian Medical Association will propose deployment strategies to ensure maximum use of clinical practice guidelines by physicians.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Physician practice/ compensation/ forms
Ethics and medical professionalism
Resolution
GC12-19
The Canadian Medical Association will propose deployment strategies to ensure maximum use of clinical practice guidelines by physicians.
Text
The Canadian Medical Association will propose deployment strategies to ensure maximum use of clinical practice guidelines by physicians.
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Registry of physician-managed health care transformation projects

https://policybase.cma.ca/en/permalink/policy10462
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Health systems, system funding and performance
Resolution
GC12-29
The Canadian Medical Association will create a registry of physician-managed health care transformation projects.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Health systems, system funding and performance
Resolution
GC12-29
The Canadian Medical Association will create a registry of physician-managed health care transformation projects.
Text
The Canadian Medical Association will create a registry of physician-managed health care transformation projects.
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Physician leadership

https://policybase.cma.ca/en/permalink/policy10467
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health systems, system funding and performance
Ethics and medical professionalism
Resolution
GC12-42
The Canadian Medical Association will examine physician leadership and engagement in system transformation across the country.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health systems, system funding and performance
Ethics and medical professionalism
Resolution
GC12-42
The Canadian Medical Association will examine physician leadership and engagement in system transformation across the country.
Text
The Canadian Medical Association will examine physician leadership and engagement in system transformation across the country.
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Best practices in physician leadership

https://policybase.cma.ca/en/permalink/policy10468
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health systems, system funding and performance
Ethics and medical professionalism
Resolution
GC12-43
The Canadian Medical Association will facilitate knowledge transfer of best practices in physician leadership and engagement across the country.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health systems, system funding and performance
Ethics and medical professionalism
Resolution
GC12-43
The Canadian Medical Association will facilitate knowledge transfer of best practices in physician leadership and engagement across the country.
Text
The Canadian Medical Association will facilitate knowledge transfer of best practices in physician leadership and engagement across the country.
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Health care institution policies on intimidation and harassment

https://policybase.cma.ca/en/permalink/policy10472
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Resolution
GC12-60
The Canadian Medical Association supports regular review of health care institution policies on intimidation and harassment to ensure they are kept up-to-date and effectively promoted and enforced.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Resolution
GC12-60
The Canadian Medical Association supports regular review of health care institution policies on intimidation and harassment to ensure they are kept up-to-date and effectively promoted and enforced.
Text
The Canadian Medical Association supports regular review of health care institution policies on intimidation and harassment to ensure they are kept up-to-date and effectively promoted and enforced.
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Transition of resident physicians into practice

https://policybase.cma.ca/en/permalink/policy10477
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Health human resources
Physician practice/ compensation/ forms
Resolution
GC12-67
The Canadian Medical Association supports programs which facilitate the transition of resident physicians into practice.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Health human resources
Physician practice/ compensation/ forms
Resolution
GC12-67
The Canadian Medical Association supports programs which facilitate the transition of resident physicians into practice.
Text
The Canadian Medical Association supports programs which facilitate the transition of resident physicians into practice.
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Advocating for health system improvement

https://policybase.cma.ca/en/permalink/policy10492
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Resolution
GC12-40
The Canadian Medical Association insists that physicians be protected from intimidation when engaging in health and health care system related advocacy.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Resolution
GC12-40
The Canadian Medical Association insists that physicians be protected from intimidation when engaging in health and health care system related advocacy.
Text
The Canadian Medical Association insists that physicians be protected from intimidation when engaging in health and health care system related advocacy.
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Global health issues

https://policybase.cma.ca/en/permalink/policy10493
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Physician practice/ compensation/ forms
Resolution
GC12-59
The Canadian Medical Association supports efforts to encourage physician awareness of and participation in global health issues throughout their career.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Ethics and medical professionalism
Physician practice/ compensation/ forms
Resolution
GC12-59
The Canadian Medical Association supports efforts to encourage physician awareness of and participation in global health issues throughout their career.
Text
The Canadian Medical Association supports efforts to encourage physician awareness of and participation in global health issues throughout their career.
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Self-regulation

https://policybase.cma.ca/en/permalink/policy10507
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health systems, system funding and performance
Ethics and medical professionalism
Resolution
GC12-86
The Canadian Medical Association will review the ability of provincial/territorial physician regulatory bodies to self-regulate independently.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health systems, system funding and performance
Ethics and medical professionalism
Resolution
GC12-86
The Canadian Medical Association will review the ability of provincial/territorial physician regulatory bodies to self-regulate independently.
Text
The Canadian Medical Association will review the ability of provincial/territorial physician regulatory bodies to self-regulate independently.
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In-house duty call

https://policybase.cma.ca/en/permalink/policy10523
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health human resources
Ethics and medical professionalism
Physician practice/ compensation/ forms
Resolution
GC12-79
The Canadian Medical Association supports the six recommendations pertaining to in-house duty call as put forward in a Canadian Association of Internes and Residents’ position paper, “Canadian Patient and Physician Safety and Wellbeing: Resident Duty Hours.”
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2012-08-15
Topics
Health human resources
Ethics and medical professionalism
Physician practice/ compensation/ forms
Resolution
GC12-79
The Canadian Medical Association supports the six recommendations pertaining to in-house duty call as put forward in a Canadian Association of Internes and Residents’ position paper, “Canadian Patient and Physician Safety and Wellbeing: Resident Duty Hours.”
Text
The Canadian Medical Association supports the six recommendations pertaining to in-house duty call as put forward in a Canadian Association of Internes and Residents’ position paper, “Canadian Patient and Physician Safety and Wellbeing: Resident Duty Hours.”
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Examination of adverse events

https://policybase.cma.ca/en/permalink/policy11692
Last Reviewed
2019-03-03
Date
2008-08-20
Topics
Health systems, system funding and performance
Health care and patient safety
Ethics and medical professionalism
Resolution
GC08-115
The Canadian Medical Association calls on regulatory agencies, hospitals, health regions and others to utilize a non-punitive quality improvement approach to the examination of adverse events while still acknowledging individual accountability.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2008-08-20
Topics
Health systems, system funding and performance
Health care and patient safety
Ethics and medical professionalism
Resolution
GC08-115
The Canadian Medical Association calls on regulatory agencies, hospitals, health regions and others to utilize a non-punitive quality improvement approach to the examination of adverse events while still acknowledging individual accountability.
Text
The Canadian Medical Association calls on regulatory agencies, hospitals, health regions and others to utilize a non-punitive quality improvement approach to the examination of adverse events while still acknowledging individual accountability.
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Resident principles on physician health human resources to better serve Canadians

https://policybase.cma.ca/en/permalink/policy11696
Last Reviewed
2019-03-03
Date
2013-08-21
Topics
Ethics and medical professionalism
Physician practice/ compensation/ forms
Health systems, system funding and performance
Resolution
GC13-29
The Canadian Medical Association supports the six guiding principles in the Canadian Association of Internes and Residents' "Resident Principles on Physician Health Human Resources to Better Serve Canadians" informing the realignment of the postgraduate medical education system supporting a national strategy to meet future societal health care needs.
Policy Type
Policy resolution
Last Reviewed
2019-03-03
Date
2013-08-21
Topics
Ethics and medical professionalism
Physician practice/ compensation/ forms
Health systems, system funding and performance
Resolution
GC13-29
The Canadian Medical Association supports the six guiding principles in the Canadian Association of Internes and Residents' "Resident Principles on Physician Health Human Resources to Better Serve Canadians" informing the realignment of the postgraduate medical education system supporting a national strategy to meet future societal health care needs.
Text
The Canadian Medical Association supports the six guiding principles in the Canadian Association of Internes and Residents' "Resident Principles on Physician Health Human Resources to Better Serve Canadians" informing the realignment of the postgraduate medical education system supporting a national strategy to meet future societal health care needs.
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CMA’s formal submission to the Federal External Panel on assisted dying

https://policybase.cma.ca/en/permalink/policy11750
Last Reviewed
2019-03-03
Date
2015-10-19
Topics
Ethics and medical professionalism
  1 document  
Policy Type
Parliamentary submission
Last Reviewed
2019-03-03
Date
2015-10-19
Topics
Ethics and medical professionalism
Text
Dear Members of the Federal External Panel: On behalf of the Canadian Medical Association (CMA), I appreciate the opportunity to provide input toward the Federal External Panel's national consultation to support the federal government's legislative response following the Supreme Court of Canada's ruling in Carter v. Canada. As the national professional association representing Canada's physicians, the CMA has played an important role in leading the public dialogue on end-of-life care, including assisted dying. In 2014, the CMA led a national consultation on end-of-life care which included a series of public and member town hall consultations across the country. This national dialogue focused on three main issues: advance care planning, palliative care, and physician-assisted dying. As highlighted in the summary report (enclosed as Appendix 1), the Canadian public emphasized the need for strict protocols and safeguards if the law on physician-assisted dying were to change. This initial consultation provided valuable insights to inform the concurrent CMA's in-depth and comprehensive consultation with its membership as well as medical and health stakeholders as an intervener before the Supreme Court and following the Carter decision. This consultation included engagement of the CMA's Ethics Committee, policy debates as part of the CMA's Annual Meetings in 2014 and 2015, in-person member forums across the country, and an online dialogue. The consultation was critical to the development of the CMA's Principles-based Recommendations for a Canadian Approach to Assisted Dying (enclosed as Appendix 2). These recommendations, guided by a set of ten foundational principles, address patient eligibility for access to and assessment for assisted dying, procedural safeguards for eligibility criteria, the roles and responsibilities of the attending and consulting physicians, and the issue of conscientious objection. Taken together, these recommendations form the CMA's position on the forthcoming legislative and regulatory framework to govern assisted dying in Canada. In addition to our recommendations, we would like to highlight key points that are of particular relevance to physicians: NATIONAL, PAN-CANADIAN LEGISLATIVE AND REGULATORY FRAMEWORK The CMA strongly recommends the establishment of national and coordinated legislative and regulatory processes and systems in response to the Carter decision. The CMA is deeply concerned that in the absence of federal action to support the establishment of national guidelines for assisted dying, a patchwork of differing and potentially conflicting approaches could emerge across jurisdictions. Legislative action at the federal level is needed to provide further clarity for physicians and their patients and support the promulgation of a coordinated and consistent approach across all jurisdictions in Canada. The CMA has been working with the medical regulatory colleges at the national level to mitigate this risk through the development of the CMA's Principles-based Recommendations for a Canadian Approach to Assisted Dying which has encouraged similar efforts by the regulatory colleges. In addition to these initiatives, federal action is required. CONSCIENTIOUS OBJECTION As the Federal External Panel is aware, the Carter decision emphasizes that any regulatory or legislative response must seek to reconcile the Charter rights of patients (wanting to access assisted dying) and physicians (who choose not to participate in assisted dying on grounds of conscientious objection). The notion of conscientious objection is not monolithic. While some conceptions of conscience encompass referral, others view referral as being connected to, or as akin to participating in, a morally objectionable act. It is the CMA's position that an effective reconciliation is one that respects, and takes account of, differences in conscience, while facilitating access on the principle of equity. To this end, the CMA's membership strongly endorses the recommendation on conscientious objection as set out in section 5.2 of the CMA's enclosed Principles-based Recommendations for a Canadian Approach to Assisted Dying. ADDITIONAL SUPPORTS The CMA recognizes, and supports addressing, the need to develop education materials for physicians. To this end, the CMA is actively developing education modules for physicians following an environmental scan of existing courses and discussions with other jurisdictions (e.g., the Royal Dutch Medical Association). The CMA has the support of the Royal College of Physicians and Surgeons of Canada, the College of Family Physicians of Canada, and the Canadian Medical Protective Association to lead this initiative. Finally, as previously stated, the CMA strongly encourages the federal government to make the report of the Federal External Panel publicly available once final. The CMA urges the members of the Federal External Panel to support this recommendation to the federal government. Thank you once again for the opportunity to provide input. The CMA looks forward to our meeting with the Federal External Panel on October 20, 2015. Sincerely, Cindy Forbes, MD, CCFP, FCFP President Jeff Blackmer MD, MHSc, FRCPC Vice-President, Medical Professionalism Enclosed: Appendix 1 - Summary Report: End-of-Life Care A National Dialogue (please see pdf for link to document) Appendix 2 - CMA's Principles-based Recommendations for a Canadian Approach to Assisted Dying Principles-based Recommendations for a Canadian Approach to Assisted Dying On Feb. 6, 2015, the Supreme Court of Canada unanimously struck down the law prohibiting assisted dying. The court suspended that decision for 12 months. This has provided an opportunity for the Canadian Medical Association (CMA) to build on its past work and pursue further consultation with provincial and territorial medical associations, medical and non-medical stakeholders, members, legislatures and patients for processes, whether legal, regulatory or guidelines, that respect patients' needs and reflects physicians' perspectives. The goal of this process is twofold: (a) discussion and recommendations on a suite of ethical-legal principles and (b) input on specific issues that are particularly physician-sensitive and are worded ambiguously or not addressed in the Court's decision. The touch points are reasonable accommodation for all perspectives and patient-centeredness. For purposes of clarity, CMA recommends national and coordinated legislative and regulatory processes and systems. There should be no undue delay in the development of these laws and regulations. The principles are not designed to serve as a tool for legislative compliance in a particular jurisdiction or provide a standard of care. Rather, the CMA wishes to provide physicians with guidance and a vision of what physicians might strive for to further their professional and legal obligations in a complex area. The CMA recommends adopting the following principles-based approach to assisted dying in Canada: Foundational principles The following foundational principles underpin CMA's recommended approach to assisted dying. Proposing foundational principles is a starting point for ethical reflection, and their application requires further reflection and interpretation when conflicts arise. 1. Respect for patient autonomy: Competent adults are free to make decisions about their bodily integrity. Specific criteria are warranted given the finality of assisted dying. 2. Equity: To the extent possible, all those who meet the criteria for assisted dying should have access to this intervention. Physicians will work with relevant parties to support increased resources and access to high quality palliative care, and assisted dying. There should be no undue delay to accessing assisted dying, either from a clinical, system or facility perspective. To that end, the CMA calls for the creation of a separate central information, counseling, and referral service. 3. Respect for physician values: Physicians can follow their conscience when deciding whether or not to provide assisted dying without discrimination. This must not result in undue delay for the patient to access these services. No one should be compelled to provide assistance in dying. 4. Consent and capacity: All the requirements for informed consent must clearly be met, including the requirement that the patient be capable of making that decision, with particular attention to the context of potential vulnerabilities and sensitivities in end of life circumstances. Consent is seen as an evolving process requiring physicians to continuously communicate with the patient. 5. Clarity: All Canadians must be clear on the requirements for qualification for assisted dying. There should be no "grey areas" in any legislation or regulations. 6. Dignity: All patients, their family members or significant others should be treated with dignity and respect at all times, including throughout the entire process of care at the end of life. 7. Protection of patients: Laws and regulations, through a carefully designed and monitored system of safeguards, should aim to minimize harm to all patients and should also address issues of vulnerability and potential coercion. 8. Accountability: An oversight body and reporting mechanism should be identified and established in order to ensure that all processes are followed. Physicians participating in assisted dying must ensure that they have appropriate technical competencies as well as the ability to assess decisional capacity, or the ability to consult with a colleague to assess capacity in more complex situations. 9. Solidarity: Patients should be supported and not abandoned by physicians and health care providers, sensitive to issues of culture and background, throughout the dying process regardless of the decisions they make with respect to assisted dying. 10. Mutual respect: There should be mutual respect between the patient making the request and the physician who must decide whether or not to perform assisted dying. A request for assisted dying is only possible in a meaningful physician-patient relationship where both participants recognize the gravity of such a request. Recommendations Based on these principles, the Supreme Court decision in Carter v. Canada (2015)1 and a review of other jurisdictions' experiences, CMA makes the following recommendations for potential statutory and regulatory frameworks with respect to assisted dying. We note that this document is not intended to address all potential issues with respect to assisted dying, and some of these will need to be captured in subsequent regulations. 1. Patient eligibility for access to assisted dying 1.1 The patient must be a competent adult who meets the criteria set out by the Supreme Court of Canada decision in Carter v. Canada (2015. 1.2 Informed decision * The attending physician must disclose to the patient information regarding their health status, diagnosis, prognosis, the certainty of death upon taking the lethal medication, and alternatives, including comfort care, palliative and hospice care, and pain and symptom control. 1.3 Capacity * The attending physician must be satisfied that: - the patient is mentally capable of making an informed decision at the time of the request(s) - the patient is capable of giving consent to assisted dying, paying particular attention to the potential vulnerability of the patient in these circumstances - communications include exploring the priorities, values and fears of the patient, providing information related to the patient's diagnosis and prognosis, treatment options including palliative care and other possible interventions and answering the patient's questions * If either or both the attending physician or the consulting physician determines that the patient is incapable, the patient must be referred for further capacity assessment. * Only patients on their own behalf can make the request while competent. 1.4 Voluntariness * The attending physician must be satisfied, on reasonable grounds, that all of the following conditions are fulfilled: - The patient's decision to undergo assisted dying has been made freely, without coercion or undue influence from family members, health care providers or others. - The patient has a clear and settled intention to end his/her own life after due consideration. - The patient has requested assisted dying him/herself, thoughtfully and repeatedly, in a free and informed manner. 2. Patient eligibility for assessment for decision-making in assisted dying Stage 1: Requesting assisted dying 1. The patient submits at least two oral requests for assisted dying to the attending physician over a period of time that is proportionate to the patient's expected prognosis (i.e., terminal vs non-terminal illness). CMA supports the view that a standard waiting period is not appropriate for all requests. 2. CMA recommends generally waiting a minimum of 14 days between the first and the second oral requests for assisted dying. 3. The patient then submits a written request for assisted dying to the attending physician. The written request must be completed via a special declaration form that is developed by the government/department of health/regional health authority/health care facility. 4. Ongoing analysis of the patient's condition and ongoing assessment of requests should be conducted for longer waiting periods. Stage 2: Before undertaking assisted dying 5. The attending physician must wait no longer than 48 hours, or as soon as is practicable, after the written request is received. 6. The attending physician must then assess the patient for capacity and voluntariness or refer the patient for a specialized capacity assessment in more complex situations. 7. The attending physician must inform the patient of his/her right to rescind the request at any time. 8. A second, independent, consulting physician must then also assess the patient for capacity and voluntariness. 9. Both physicians must agree that the patient meets eligibility criteria for assisted dying to proceed. 10. The attending physician must fulfill the documentation and reporting requirements. Stage 3: After undertaking assisted dying 11. The attending physician, or a physician delegated by the attending physician, must take care of the patient until the patient's death. 3. Role of the physician 3.1 The attending physician must be trained to provide assisted dying. 3.2 Patient assessment * The attending physician must determine if the patient qualifies for assisted dying under the parameters stated above in Section 1. * The attending physician must ensure that all reasonable treatment options have been considered to treat physical and psychological suffering according to the patient's need, which may include, independently or in combination, palliative care, psychiatric assessment, pain specialists, gerontologists, spiritual care, and/or addiction counseling. 3.3 Consultation requirements * The attending physician must consult a second physician, independent of both the patient and the attending physician, before the patient is considered eligible to undergo assisted dying. * The consulting physician must - Be qualified by specialty or experience to render a diagnosis and prognosis of the patient's illness and to assess their capacity as noted in Stage 2 above. 3.4 Opportunity to rescind request * The attending physician must offer the patient an opportunity to rescind the request at any time; the offer and the patient's response must be documented. 3.5 Documentation requirements * The attending physician must document the following in the patient's medical record: - All oral and written requests by a patient for assisted dying - The attending physician's diagnosis and prognosis, and their determination that the patient is capable, acting voluntarily and has made an informed decision - The consulting physician's diagnosis and prognosis, and verification that the patient is capable, acting voluntarily and has made an informed decision - A report of the outcome and determinations made during counseling - The attending physician's offer to the patient to rescind the request for assisted dying - A note by the attending physician indicating that all requirements have been met and indicating the steps taken to carry out the request 3.6 Oversight body and reporting requirements * There should be a formal oversight body and reporting mechanism that collects data from the attending physician. * Following the provision of assisted dying, the attending physician must submit all of the following items to the oversight body: - Attending physician report - Consulting physician report - Medical record documentation - Patient's written request for assisted dying * The oversight body would review the documentation for compliance * Provincial and territorial jurisdictions should ensure that legislation and/or regulations are in place to support investigations related to assisted dying by existing provincial and territorial systems * Pan-Canadian guidelines should be developed in order to provide clarity on how to classify the cause on the death certificate 4. Responsibilities of the consulting physician * The consulting physician must verify the patient's qualifications including capacity and voluntariness. * The consulting physician must document the patient's diagnosis, prognosis, capacity, volition and the provision of information sufficient for an informed decision. The consulting physician must review the patient's medical records, and should document this review. 5. Moral opposition to assisted dying 5.1 Moral opposition by a health care facility or health authority * Hospitals and health authorities that oppose assisted dying may not prohibit physicians from providing these services in other locations. There should be no discrimination against physicians who decide to provide assisted dying. 5.2 Conscientious objection by a physician * Physicians are not obligated to fulfill requests for assisted dying. There should be no discrimination against a physician who chooses not to participate in assisted dying. In order to reconcile physicians' conscientious objection with a patient's request for access to assisted dying, physicians are expected to provide the patient with complete information on all options available to them, including assisted dying, and advise the patient on how they can access any separate central information, counseling, and referral service. 1 Carter v. Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 (CanLII)
Documents
Less detail

Statement to the Canadian panel on violence against women Ottawa -September, 1992

https://policybase.cma.ca/en/permalink/policy11956
Last Reviewed
2019-03-03
Date
1992-09-15
Topics
Health care and patient safety
Ethics and medical professionalism
  1 document  
Policy Type
Parliamentary submission
Last Reviewed
2019-03-03
Date
1992-09-15
Topics
Health care and patient safety
Ethics and medical professionalism
Text
The CMA is pleased to have this opportunity to address the Canadian Panel on Violence Against Women. As a professional organization with a leadership role in societal issues affecting health, it is both appropriate and important for the CMA to be actively involved in addressing the problems associated with violence. The extremely high incidence of abuse, the associated severe physical, mental and psychological health problems and the significant role played by physicians in recognizing and caring for victims make this a priority for organized medicine. The CMA has significant experience and expertise in this field. In 1984, the CMA General Council passed a resolution stating: "That Health and Welfare Canada and the Provincial Ministries of Health and Education alert the Canadian public to the existence of family violence, including wife assault, child abuse, and elder abuse, and to the services available which respond to these problems, and that organized medicine (through such vehicles as professional journals, newsletters, conferences and formal medical education) alert the physicians of Canada to the problem and that all physicians learn to recognize the signs of family violence in their daily contact with patients and undertake the care and management of victims using available community resources." (Resolution #84-47) The CMA calls the Panel's attention to four major areas of concern: Recognition and Treatment, Education and Training, Protocol Development and Research. 1. Recognition and Treatment: Recognition includes acknowledging the existence and prevalence of abuse and identifying victims of violence. Violence against women is clearly a health issue and one that should be given a very high priority. Statistics indicate that nearly one in eight Canadian women will be subject to spousal violence in her lifetime and that one in five will be a victim of sexual assault. Violence against women is a major determinant of both short -and long-term health problems including traumatic injury, physical and psychological illnesses, alcohol/drug addiction and death. Furthermore, although it is critically important to recognize that abuse crosses all racial and socio-economic boundaries, there are strong indications that certain groups are particularly vulnerable to abusive acts (e.g., pregnant, disabled and elderly women). Recognition includes acknowledging and understanding the social context within which violence occurs. Violence is not an isolated phenomenon, but is part of the much broader issue of societal abuse of women. Physicians are often the first point of contact for patients who have been abused physically, sexually, mentally and/or psychologically. They have a vital role to play in identifying victims and providing treatment and supportive intervention including appropriate referral. Abuse is not always readily apparent, however, and may go undetected for extended periods of time. Numerous studies have shown that both physicians and patients often fail to identify abuse as an underlying cause of symptoms. Such delays can result in devastating and sometimes fatal consequences for patients. Even in those cases where abuse is apparent, both physicians and patients often feel uncomfortable talking openly about the abuse and the circumstances surrounding it. It is the physician's role and responsibility to create a safe and supportive environment for the disclosure and discussion of abuse. Furthermore, the lack of resources for support services or the lack of awareness of what services are available to provide immediate and follow-up care to patients in need may discourage physicians from acknowledging the existence of abuse and identifying victims. It is clear that improvement in the ability and the degree to which victims of abuse are recognized and given appropriate assistance by physicians and other caring professionals in a non-threatening environment is urgently required. Individuals who are abused usually approach the health care system through primary contact with emergency departments or other primary care centres. The care available in such settings is acute, fragmented and episodic. Such settings are not appropriate for the victims of violence. The challenge that we, as physicians, recognize is to be able to provide access in a coordinated way to medical, social, legal and other support services that are essential for the victim of violence. This integration of services is essential at the point of initial recognition and contact. The CMA has been involved with eight other organizations in the Interdisciplinary Project on Domestic Violence (IPVD), the primary goal of which is to promote interdisciplinary co-operation in the recognition and management of domestic violence. 2. Education and Training: The spectrum of abuse is complex; the victims are diverse; expertise in the field is developing. The current system of medical education neither provides health care personnel with the knowledge or skills nor does it foster the attitude to deal adequately with this issue. Some of CMA's divisions have played an active role in this area. For instance, the Ontario Medical Association has developed curriculum guidelines and medical management of wife abuse for undergraduate medical students. It is ,important that there be more involvement by relevant medical groups in developing educational and training programs and more commitment from medical educators to integrate these programs and resources into the curriculum. Programs must be developed and instituted at all levels of medical education in order that physicians can gain the requisite knowledge and skills and be sensitive to the diversity of victims of violence. The CMA believes that the educational programs must result in: 1) understanding of the health consequences of violence; 2) development of effective communication skills; and, 3) understanding of the social context in which violence occurs. Understanding of the social context in which violence occurs will require an examination of the values and attitudes that persist in our society, including a close consideration of the concepts of gender role socialization, sexuality and power. This is required in order to dispel the pervasive societal misconceptions held by physicians and others which act as barriers to an effective and supportive medical response to patients suffering the effects of violence. 3. Development of Protocols: The CMA recognizes the need for more effective management and treatment of the spectrum of problems associated with violence against women. Health care facilities, professional organizations and other relevant groups are challenged to formulate educational and policy protocols for integrated and collaborative approaches to dealing with prevention of abuse and the management of victims of violence. The CMA and a number of its divisions have been active in this area:
In 1985, the CMA prepared and published Family Violence: Guidelines for Recognition and Management (Ghent, W.R., Da Sylva, N.P., Farren, M.E.), which dealt with the signs and symptoms, assessment and management, referral assistance and medical records with respect to wife battering, child abuse and abuse of the elderly;
The Ontario Medical Association published Repons on Wife Assault in January 1991. This document, endorsed by the CMA, examines the problem of wife assault from a medical perspective and outlines approaches to treatment of the male batterer and his family;
The Medical Society of Nova Scotia has developed a handbook entitled Wife Abuse: A Handbook for Physicians, advising on the identification and management of cases involving the battering of women;
The New Brunswick Medical Society has produced a series of discussion papers on violence and in conjunction with that province's Advisory Council on the Status of Women, has produced a graphic poster depicting physical assault on pregnant women as a way of urging physicians to be alert for signs of violence against women; The Medical Society of Prince Edward Island has worked cooperatively with the provincial Department of Health and Social Services and the Interministerial Committee on Family Violence to produce a document entitled Domestic Violence: A Handbook for Physicians. The CMA encourages continued involvement by the medical profession in the development of initiatives such as these and welcomes the opportunity to work in collaboration with other professionals involved in this area. 4. Research The CMA has identified violence against women as a priority health issue. Like rriany other areas in women's health, there is a need for research focusing on all aspects of violence and the associated problems. More specifically, the CMA maintains that there should be more research on the incidence of abuse (particularly as it relates to particular groups), on ways to facilitate the disclosure by victims of abuse and on the effectiveness of educational and prevention programs. The CMA recognizes that the medical profession must show a greater commitment to ending abuse of women and providing more appropriate care and support services to those who are victims of violence. The CMA possesses unique skills and expertise in this area and welcomes the opportunity to work with the Panel on this challenging social and health problem.
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Supporting the enactment of Bill C-14, Medical Assistance in Dying

https://policybase.cma.ca/en/permalink/policy13693
Last Reviewed
2019-03-03
Date
2016-05-02
Topics
Ethics and medical professionalism
  1 document  
Policy Type
Parliamentary submission
Last Reviewed
2019-03-03
Date
2016-05-02
Topics
Ethics and medical professionalism
Text
In this submission to the House of Commons Standing Committee on Justice and Human Rights, the CMA’s feedback is focused on three of the legislative objectives of Bill C-14, given their relevance to the CMA’s Principles-based Recommendations for a Canadian Approach to Assisted Dying. On behalf of its more than 83,000 members and the Canadian public, the CMA performs a wide variety of functions. Key functions include advocating for health promotion and disease/injury prevention policies and strategies, advocating for access to quality health care, facilitating change within the medical profession, and providing leadership and guidance to physicians to help them influence, manage and adapt to changes in health care delivery. i) Robust Safeguards First, the CMA supports the legislative objective of ensuring a system of robust safeguards to the provision of medical assistance in dying. The safeguards proposed by Bill C-14 include: patient eligibility criteria, process requirements to request medical assistance in dying, as well as monitoring and reporting requirements. The CMA is a voluntary professional organization representing the majority of Canada’s physicians and comprising 12 provincial and territorial divisions and over 60 national medical organizations. ii) Consistent, Pan-Canadian Framework Second, the CMA supports the legislative objective that a consistent framework for medical assistance in dying in Canada is desirable. In addition to robust safeguards, key measures proposed by Bill C-14 support the promulgation of a consistent framework across jurisdictions include legislating definitions for “medical assistance in dying” and “grievous and irremediable condition.” The CMA’s Principles-based Recommendations reflect on the subjective nature of what constitutes “enduring and intolerable suffering” and a “grievous and irremediable condition” as well as the physician’s role in making an eligibility determination. iii) End-of-Life Care Coordination System Thirdly, the CMA supports the objective to develop additional measures to support the provision of a full range of options for end-of-life care and to respect the personal convictions of health care providers. The fulfilment of these commitments with federal non-legislative measures will be integral to supporting the achievement of access to care, respecting the personal convictions of health care providers, and developing a consistent, pan-Canadian framework. The CMA encourages the federal government to rapidly advance its commitment to engage the provinces and territories in developing a pan-Canadian end-of-life care coordinating system. It will be essential for this system to be in place for June 6, 2016. At least one jurisdiction has made a system available to support connecting patients with willing providers. Until a pan-Canadian system is available, there will be a disparity of support for patients and practitioners across jurisdictions. iv) Respect Personal Convictions Finally, it is the CMA’s position that Bill C-14, to the extent constitutionally possible, must respect the personal convictions of health care providers. In the Carter decision, the Supreme Court of Canada emphasized that any regulatory or legislative response must seek to reconcile the Charter rights of patients wanting to access assisted dying and physicians who choose not to participate in medical assistance in dying on grounds of conscientious objection. The CMA’s Principles-based Recommendations achieves an appropriate balance between physicians’ freedom of conscience and the assurance of effective and timely patient access to a medical service. From the CMA’s significant consultation with our membership, it is clear that physicians who are comfortable providing referrals strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not. While the federal government has achieved this balance with Bill C-14, there is the potential for other regulatory bodies to implement approaches that may result in a patchwork system. The CMA’s position is that the federal government effectively mitigate this outcome by rapidly advancing the establishment of the pan-Canadian end-of-life care coordinating system. CMA Supports Cautious Approach for “Carter Plus” The CMA must emphasize the need for caution and careful study in consideration of “Carter Plus”, which includes: eligibility of mature minors, eligibility with respect to sole mental health conditions, and advance care directives. The CMA supports the federal government’s approach not to legislate these issues, rather to study them in greater detail. Word count: 750
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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/.
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Principles concerning physician information

https://policybase.cma.ca/en/permalink/policy208
Last Reviewed
2019-03-03
Date
2002-06-02
Topics
Health information and e-health
Ethics and medical professionalism
  1 document  
Policy Type
Policy document
Last Reviewed
2019-03-03
Date
2002-06-02
Topics
Health information and e-health
Ethics and medical professionalism
Text
Principles concerning physician information (CMA policy – approved June 2002) In an environment in which the capacity to capture, link and transmit information is growing and the need for fuller accountability is being created, the demand for physician information, and the number of people and organizations seeking to collect it, is increasing. Physician information, that is, information that includes personal health information about and information that relates or may relate to the professional activity of an identifiable physician or group of physicians, is valuable for a variety of purposes. The legitimacy and importance of these purposes varies a great deal, and therefore the rationale and rules related to the collection, use, access and disclosure of physician information also varies. The Canadian Medical Association (CMA) developed this policy to provide guiding principles to those who collect, use, have access to or disclose physician information. Such people are termed “custodians,” and they should be held publicly accountable. These principles complement and act in concert with the CMA Health Information Privacy Code (1), which holds patient health information sacrosanct. Physicians have legitimate interests in what information about them is collected, on what authority, by whom and for what purposes it is collected, and what safeguards and controls are in place. These interests include privacy and the right to exercise some control over the information; protection from the possibility that information will cause unwarranted harm, either at the individual or the group level; and assurance that interpretation of the information is accurate and unbiased. These legitimate interests extend to information about physicians that has been rendered in non-identifiable or aggregate format (e.g., to protect against the possibility of individual physicians being identified or of physician groups being unjustly stigmatized). Information in these formats, however, may be less sensitive than information from which an individual physician can be readily identified and, therefore, may warrant less protection. The purposes for the use of physician information may be more or less compelling. One compelling use is related to the fact that physicians, as members of a self-regulating profession, are professionally accountable to their patients, their profession and society. Physicians support this professional accountability purpose through the legislated mandate of their regulatory colleges. Physicians also recognize the importance of peer review in the context of professional development and maintenance of competence. The CMA supports the collection, use, access and disclosure of physician information subject to the conditions outlined below. Purpose(s): The purpose(s) for the collection of physician information, and any other purpose(s) for which physician information may be subsequently used, accessed or disclosed, should be precisely specified at or before the collection. There should be a reasonable expectation that the information will achieve the stated purpose(s). The policy does not prevent the use of information for purposes that were not intended and not reasonably anticipated if principles 3 and 4 of this policy are met. Consent: As a rule, information should be collected directly from the physician. Subject to principle 4, consent should be sought from the physician for the collection, use, access or disclosure of physician information. The physician should be informed about all intended and anticipated uses, accesses or disclosures of the information. Conditions for collection, use, access and disclosure: The information should: be limited to the minimum necessary to carry out the stated purpose(s), be in the least intrusive format required for the stated purpose(s), and its collection, use, access and disclosure should not infringe on the physician’s duty of confidentiality with respect to that information. Use of information without consent: There may be justification for the collection, use, access or disclosure of physician information without the physician’s consent if, in addition to the conditions in principle 3 being met, the custodian publicly demonstrates with respect to the purpose(s), generically construed, that: the stated purpose(s) could not be met or would be seriously compromised if consent were required, the stated purpose(s) is(are) of sufficient importance that the public interest outweighs to a substantial degree the physician’s right to privacy and right of consent in a free and democratic society, and that the collection, use, access or disclosure of physician information with respect to the stated purpose(s) always ensures justice and fairness to the physician by being consistent with principle 6 of this policy. Physician’s access to his or her own information: Physicians have a right to view and ensure, in a timely manner, the accuracy of the information collected about them. This principle does not apply if there is reason to believe that the disclosure to the physician will cause substantial adverse effect to others. The onus is on the custodian to justify a denial of access. 6. Information quality and interpretation: Custodians must take reasonable steps to ensure that the information they collect, use, gain access to or disclose is accurate, complete and correct. Custodians must use valid and reliable collection methods and, as appropriate, involve physicians to interpret the information; these physicians must have practice characteristics and credentials similar to those of the physician whose information is being interpreted. 7. Security: Physical and human safeguards must exist to ensure the integrity and reliability of physician information and to protect against unauthorized collection, use, access or disclosure of physician information. 8. Retention and destruction: Physician information should be retained only for the length of time necessary to fulfill the specified purpose(s), after which time it should be destroyed. 9. Inquiries and complaints: Custodians must have in place a process whereby inquiries and complaints can be received, processed and adjudicated in a fair and timely way. The complaint process, including how to initiate a complaint, must be made known to physicians. 10. Openness and transparency: Custodians must have transparent and explicit record-keeping or database management policies, practices and systems that are open to public scrutiny, including the purpose(s) for the collection, use, access and disclosure of physician information. The existence of any physician information record-keeping systems or database systems must be made known and available upon request to physicians. 11. Accountability: Custodians of physician information must ensure that they have proper authority and mandate to collect, use, gain access to or disclose physician information. Custodians must have policies and procedures in place that give effect to the principles in this document. Custodians must have a designated person who is responsible for monitoring practices and ensuring compliance with the policies and procedures. (1) Canadian Medical Association. Health Information Privacy Code. CMAJ 1998;159(8):997-1016.
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Putting Patients First : Comments on Bill C 6 (Personal Information Protection and Electronic Documents Act) : Submission to the Senate Standing Committee on Social Affairs, Science and Technology

https://policybase.cma.ca/en/permalink/policy1979
Last Reviewed
2019-03-03
Date
1999-11-25
Topics
Ethics and medical professionalism
Health care and patient safety
Health information and e-health
  2 documents  
Policy Type
Parliamentary submission
Last Reviewed
2019-03-03
Date
1999-11-25
Topics
Ethics and medical professionalism
Health care and patient safety
Health information and e-health
Text
CMA commends the federal government for taking this important first step that begins the debate on privacy and the protection of personal information. The issues are complex and the interests at stake significant. CMA welcomes the opportunity to provide comments on Bill C-6 and hopes that its input will strengthen the Bill by ensuring that patient privacy and the confidentiality of medical records are adequately protected. CMA’s chief concern with Bill C-6 is the inadequacy of its provisions to protect the right of privacy of patients and the confidentiality of their health information. The right of privacy encompasses both the right to keep information about ourselves to ourselves if we so choose and to exercise control over what subsequently happens to information we confide in trust for the purpose of receiving health care. In recent years, this right, and the ability of physicians to guarantee meaningful confidentiality, have becoming increasingly threatened. Computerization of health information facilitates easy transfer, duplication, linkage and centralization of health information. Captured in electronic form, patient information is potentially more useful for the purpose of providing care. However, thus captured, it also becomes much more valuable and technically accessible to various third parties -- private and public, governmental and commercial -- wishing to use this information for other purposes unrelated to providing direct care. An additional concern is that the demand for health information, referred to by some commentators as ‘data lust’, is growing, partly as a consequence of ‘information hungry’ policy trends such as population health. There is also a disturbing tendency toward ‘function creep’, whereby information collected for one purpose is used for another, often without consent or even knowledge of the individual concerned and without public knowledge or scrutiny. Furthermore, initiatives concerning health information technology tend to be dominated by those who seek access to this information for secondary purposes. From this perspective, privacy may appear less as a fundamental right than as a hindrance or even roadblock. As we move further into the information age there is some danger that we will become so spell-bound by the promise of information centralization and database linkages that we lose sight of the patients who confided this information or reduce them to impersonal ‘data subjects’. To avoid this danger and the allure of the technology we need to ground the application of information technology and practices in well-tested, enduring principles. We need to put privacy first rather than treat it as a nuisance or impediment. Rules and regulatory regimes concerning health information should be based on the principle of patient privacy because ultimately health information technology is not about ‘bits and bytes’ or ‘data’ or even ‘data subjects’ but about patients, and patients deserve to be treated with respect and dignity and to have their wishes and choices valued and respected. If we are to put patients first the right of privacy must be given primacy in rules concerning health information. This does not mean that this right is absolute. What it does mean is that the burden of proof must rest with those whose purposes, however compelling they may be, encroach upon the right of privacy. It means that we value patient privacy at least enough to demand explicit justification of any proposal that would diminish privacy. Bill C-6 begins with the right premise: that “rules to govern information collection, use and disclosure” should recognize the “right of privacy”. However, it fails to recognize the special nature of health information and to tailor its provisions accordingly. In consequence there is confusion and uncertainty about Bill C-6's application to health care. Even more seriously, however, Bill C-6 fails to recognize that health information requires stronger or greater privacy protection than other types of information. The inadequacy of Bill C-6 for health care is not surprising because clearly it was not drafted with health information in mind. Rather, it is written from the perspective of encouraging commerce. It appears to have access to information as its dominant value. The world of health care is very different from that of commerce and consequently requires distinct rules that are more protective of privacy. Confiding information to your physician under the trust of the patient-physician relationship is not on par with giving your address to a salesclerk when you purchase a toaster or rent a movie. Health information is special by nature. Canadians know this. In a recent Angus Reid poll commissioned by CMA Canadians told us loudly and clearly that they regard their health information as especially sensitive. However, the obvious sensitivity of health information is not the only thing that makes it special and in virtue of which it warrants distinct rules to strengthen privacy protection. It is important to recognize that this information is typically collected under the trust patients vest in their physicians. Patients confide their information for the purpose of receiving care and in the expectation that it will be held in the strictest confidence. This purpose, and the preservation of this trust, should be given primacy in rules concerning health information. It is also important to recognize that the trust under which patients confide in their physicians is fundamental to the patient-physician relationship. If patients can not trust their physicians to protect their information and keep it secret they will not confide it as freely as they do. In consequence, the ability of physicians to provide the care needed would be severely diminished. Rules relating to health information must be developed in recognition of its special nature and the circumstances of trust and vulnerability in which it is initially collected or confided. Patients confide in their physicians for the purpose of receiving care. The potential that the information thus confided may subsequently be used for other purposes must not impede the therapeutic purpose or diminish the trust and integrity of the patient-physician relationship. In recent years the secondary use of information for purposes other than those for which it was collected has been increasing without adequate oversight or public knowledge. This ‘function creep’ undermines the trust of patient-physician relationship. Collection and use beyond the therapeutic context and for purposes unrelated to the provision of direct care should be subjected to rigorous scrutiny before they are permitted to occur. To the extent that they are permitted to occur without patient consent they should be explicitly authorized in legislation to ensure transparency and adequate oversight. Putting patients first means ensuring that health information, in all but exceptional and justifiable circumstances, is used only under the strict control of the patient. The patient must be able to exercise control through voluntary, informed consent. Moreover, a distinction must be made between a patient’s right to know what can or must happen to health information and the right to consent to such use. Bill C-6 permits the collection, use and disclosure of information without knowledge or consent on grounds such as expediency, practicality, public good, research, offence investigation, historic importance and artistic purpose. The laxness and breadth of these exemptions as applied to health information is unacceptable. These uses, without the patient’s consent (or even knowledge), reduce the patient to a means to someone else’s end, however worthwhile that end may be. Moreover, the absence of consent (or even knowledge) undermines the integrity of the patient-physician relationship and has the potential to erode the trust patients have in their physicians - a trust that is essential to patients’ willingness to provide the complete information needed to provide them with care. CMA has developed and adopted a Health Information Privacy Code (Appendix A) in recognition of the special nature of health information and to give primacy to patients and to the right of privacy. This Code begins from the same starting point as Bill C-6, the Canadian Standards Association (CSA) Code which the Bill includes as Schedule 1. However, unlike Bill C-6, the CMA Code tailors the CSA Code to the specific circumstances of health information. The CMA Health Information Privacy Code, therefore, is able to address issues specific to health information that Bill C-6 either fails to address or, even worse, exacerbates. In light of the clear deficits in Bill C-6 and the inadequate protection of patient privacy and health information confidentiality, CMA urges this committee to accept the recommendations put forward in this brief to strengthen the Bill’s provisions for protecting privacy and to accept the amendment (Appendix B) CMA has prepared to give effect to these recommendations. CMA believes that Canadians desire and deserve no less than this as concerns the right of privacy with respect to health information. I. Introduction The Canadian Medical Association is the national voice of Canadian physicians. Our mission is to provide leadership for physicians and to promote the highest standard of health and health care for Canadians. The CMA is a voluntary professional organization representing the majority of Canada's physicians and comprising 12 provincial and territorial divisions and 43 affiliated medical organizations. On behalf of its 46,000 members and the Canadian public, CMA performs a wide variety of functions, including addressing the emerging issue of electronic health information and confidentiality and privacy. It is in this capacity that we present our position on Bill C 6, The Personal Information Protection and Electronic Documents Act. CMA commends the federal government for taking this important first step of beginning the debate on privacy and the protection of personal information. The issues are complex and the interests at stake significant. CMA welcomes the opportunity to provide comments on Bill C-6 and hopes that its input will strengthen the Bill by ensuring that patient privacy and the confidentiality of medical records are adequately protected. In preparing this brief CMA has had the benefit of the final report of the federal Advisory Council on Health Infostructure, Canada Health Infoway: Paths to Better Health: Final Report. (“Advisory Council Report”) Where appropriate, CMA cites the findings contained in the Report. CMA wishes to underscore the key themes of its brief: A. Health information is special by its nature. Rules relating to health information must be developed in recognition of its special nature. Ensuring protection of privacy and confidentiality of the patient record must take precedence over other considerations. Bill C-6 fails to do this. Bill C-6 is written from the perspective of encouraging commerce. It appears to have access to information as its dominant value. The world of health care is very different from that of commerce and consequently requires distinct rules. B. Typically, health information is confided in the context of the therapeutic relationship and under the trust upon which this relationship is built. Rules concerning health information -- and in particular its collection, disclosure and use for purposes unrelated to the provision of direct care -- must be consistent with the expectations of patients about confidentiality and must not exploit the trust patients have in their physicians or compromise the ability of physicians to earn and maintain this trust. C. Health information must, in all but exceptional and justifiable circumstances, be used only under the strict control of the patient. The patient must be able to exercise control through voluntary, informed consent. Moreover, a distinction must be made between a patient’s right to know what can or must happen to health information and the right to consent to such use. Bill C-6 permits the collection, use and disclosure of information without knowledge or consent on grounds such as expediency, practicality, public good, research, offence investigation, historic importance and artistic purpose. The laxness and breadth of these exemptions as applied to health information is unacceptable. These uses, without the patient’s consent (or even knowledge), reduce the patient to a means to someone else’s end, however worthwhile that end may be. Moreover, the absence of consent (or even knowledge) undermines the integrity of the patient-physician relationship and has the potential to erode the trust patients have in their physicians - a trust that is essential to patients’ willingness to provide the complete information needed to provide them with care. D. The root of most of the problems in applying Bill C-6 to health care information is its failure to distinguish among purposes for the collection, use and disclosure of health information. In particular, the Bill fails to distinguish between the primary purpose, which is to deliver care to and for the benefit of an individual patient, and secondary purposes, which are not for the direct benefit of the patient (and indeed may even use the patient’s information to his or her detriment). Provisions to protect privacy should give recognition to the difference between these purposes and should not hinder the ability of physicians and others to provide care consistent with the patient’s wishes. Moreover, the Bill has no effective mechanism to distinguish legitimate purposes, which should be permitted, from illegitimate purposes, which should not, notwithstanding the limitation to “purposes that a reasonable person would consider are appropriate in the circumstances” in Section 5(3). E. In recent years the secondary use of information for purposes other than the purpose for which it was collected has been increasing without adequate oversight or public knowledge. This ‘function creep’ undermines the trust of patient-physician relationship. Collection and use beyond the therapeutic context and for purposes unrelated to the provision of direct care should be subjected to rigorous scrutiny before they are permitted to occur. To the extent that they are permitted to occur without patient consent they should be explicitly authorized in legislation to ensure transparency and adequate oversight. This Brief will first look at the apparent rationale of Bill C-6 and its potential application to health information. The brief will then describe why CMA considers health information to be special in nature and worthy of special protection. Finally, the brief reviews the difference in approach between Bill C-6 and CMA’s Health Information Privacy Code to illustrate that Bill C-6 provides inadequate protection to patient privacy and medical confidentiality. II. Rationale and Scope of Bill C-6 A. Rationale of Bill C-6 The driving force behind Bill C-6 is the support and promotion of electronic commerce. The second part of the Bill is devoted to permitting electronic versions of documents and signatures to be legitimate or ‘originals’ if the provisions of the Act are followed. Part 2 of the Bill is quite distinct from Part 2 and both parts could stand alone as separate pieces of legislation. Part 2 simply allows electronic versions of documents and signatures to be recognized as legitimate. On its face, this has little to do with the protection of personal information except to the extent that storage of documents in electronic form provides greater ability to access, link and merge information. Certainly, the Bill appears to draw on this connection by including, in its statement of purpose, the provision of a right of privacy in an era in which technology increasingly facilitates the collection and free flow of information. Part 1 concerns all forms of personal information, electronic and otherwise. It gives some protection to personal information by requiring consent in some instances. In CMA’s view, a fundamental difficulty with Part 1 and with the Bill in general is that its goal is to promote commerce and thus all information is implicitly considered as falling within the ‘commercial’ realm. In the case of health information this is surely not the case or the only consideration. Moreover, this creates a clash of values when applied to a health care system that is a public system. The Advisory Council Report takes a firm stand on this issue and states that legislation respecting the privacy protection of health information, “should also contain a clear prohibition against all secondary commercial use of personal health information.”Moreover, Bill C-6 fails to distinguish and priorize different purposes for collecting, using and disclosing information and in doing so treats all purposes as more or less equal and subject to the same rules. CMA takes a quite a different view when it comes to health information and will expound its view throughout this brief. B. Scope - Application to Health Records CMA has argued from the outset that C 6 (and its predecessor C 54) will apply to some health information. This view now appears to be widely accepted. Nevertheless, it is unclear as to what extent Bill C 6 will apply to health records. The full name of the Act states, in part: An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances . . . . What are these circumstances? Section 4(1) states that Part 1 (the part protecting personal information) applies in respect of personal information that: (a) the organization collects, uses or discloses in the course of commercial activities; or (b) is about an employee of the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business. The definition of commercial activity given in 2(1) that commercial activity Ameans any particular transaction, act or conduct or any regular course of conduct that is of a commercial character@ is circular and does nothing to clarify uncertainties concerning the Bill’s scope. There are two points to be made here as concerns the application of this Bill to health information. The first concerns clarity around where commercial ends and health care begins. Which health care settings that operate for profit are excluded from the Act? This question speaks to the difficulty of delineating what activity is considered health care and what activity is considered commercial. Moreover the increase in public/private partnerships and joint funding of endeavours within the health care sector, which the government appears to be promoting, may make it increasingly difficult to make this distinction; for example in the area of research. The second concerns the specification of different regimes for information protection and privacy rights, depending on whether the information is deemed to come under commercial activity. This is clearly not desirable. However, the solution to this problem is not to reduce the privacy rules for all health information to the lowest common denominator but to raise them to a higher level of protection than is afforded commercially acquired information. Subjecting all health information to the regime laid out in the CMA Health Information Privacy Code would achieve this objective. In preparing this brief CMA has assumed that the Bill will provide a scheme that applies to at least some health information. Three years after it is in force it will apply equally to activities that occur strictly within the provinces, unless there is legislation in the province that is substantially similar to the Bill (see sections 27(2)(b) and 30). No doubt the extent of the federal government’s ability to legislate in this area generally will be the subject of extensive debate. However, CMA has no comment on this debate and provides its opinion in the interests of ensuring that the rules that relate to health information are compatible with preserving the integrity of the patient physician relationship and the protection of patient privacy and health information confidentiality. The federal government has an opportunity to provide Canadians with strong privacy rights in health information. It is incumbent upon the government to do so. C. Scope - Government Excluded Bill C-6 expressly excludes a large part of government activity from its ambit. Although government activity is to some extent governed by the Privacy Act, R.S.C. 1985, P-21, the rules of this Act provide less protection than those of Bill C-6. Government should subject itself to at least the same rules that it requires of the private sector in so far as it is a collector and user of information. Indeed, government’s practices relating to the collection, storage, merging, transfer and use of health information should be subject to more stringent rules than those found in either the Privacy Act or Bill C-6. The Advisory Council Report also calls for the same rules to apply to the public and private sectors, rules that are more stringent than those found in the Privacy Act or Bill C-6. Therefore, CMA recommends: That, at least in connection with health information, the provisions of the Bill apply equally to the public and the private sectors. III. Considerations Regarding Patient Privacy and Confidentiality: Medical Context Versus Commercial Context A. CMA’s Position The world of health care is very different from that of commerce and consequently requires distinct rules that are more protective of privacy. Confiding information to your physician under the trust of the patient-physician relationship is not on par with giving your address to a salesclerk when you purchase a toaster or rent a movie. Health information is special by nature. Canadians know this. In a recent Angus Reid poll commissioned by CMA Canadians told us loudly and clearly that they regard their health information as especially sensitive. However, the obvious sensitivity of health information is not the only thing that makes it special and in virtue of which it warrants distinct rules to strengthen privacy protection. It is important to recognize that this information is typically collected under the trust patients vest in their physicians. Patients confide their information for the purpose of receiving care and in the expectation that it will be held in the strictest confidence. This purpose, and the preservation of this trust, should be given primacy in rules concerning health information It is also important to recognize that the trust under which patients confide in their physicians is fundamental to the patient-physician relationship. If patients could not trust their physicians to protect their information and keep it secret they would not confide it as freely as they do. In consequence, the ability of physicians to provide the care needed would be severely diminished. Rules relating to health information must be developed in recognition of its special nature and the circumstances of trust and vulnerability in which it is initially collected or confided. Patients confide in their physicians for the purpose of receiving care. The potential that the information thus confided may subsequently be used for other purposes must not impede the therapeutic purpose or diminish the trust and integrity of the patient-physician relationship. In recent years the secondary use of information for purposes other than those for which it was collected has been increasing without adequate oversight or public knowledge. This ‘function creep’ undermines the trust of patient-physician relationship. Collection and use beyond the therapeutic context and for purposes unrelated to the provision of direct care should be subjected to rigorous scrutiny before they are permitted to occur. To the extent that they are permitted to occur without patient consent they should be explicitly authorized in legislation to ensure transparency and adequate oversight. Putting patients first means ensuring that health information, in all but exceptional and justifiable circumstances, is used only under the strict control of the patient. The patient must be able to exercise control through voluntary, informed consent. Moreover, a distinction must be made between a patient’s right to know what can or must happen to health information and the right to consent to such use. Bill C-6 permits the collection, use and disclosure of information without knowledge or consent on grounds such as expediency, practicality, public good, research, offence investigation, historic importance and artistic purpose. The laxness and breadth of these exemptions as applied to health information is unacceptable. These uses, without the patient’s consent (or even knowledge), reduce the patient to a means to someone else’s end, however worthwhile that end may be. Moreover, the absence of consent (or even knowledge) undermines the integrity of the patient-physician relationship and has the potential to erode the trust patients have in their physicians - a trust that is essential to patients’ willingness to provide the complete information needed to provide them with care. CMA has developed and adopted a Health Information Privacy Code (Appendix A) in recognition of the special nature of health information and to give primacy to patients and to the right of privacy. In commenting on this Code the Advisory Council Report notes: The Code represents an important contribution to the deliberations of Canadians and legislators on how to safeguard privacy across the health domain. In his 1998-99 Annual Report, the Federal Privacy Commissioner writes in support of the Health Information Privacy Code: Legislators looking for guidance on health information privacy law need not re-invent the wheel; the Canadian Medical Association’s Health Information Privacy Code is a comprehensive benchmark for achieving a high national level of protection for personal information. The Code could be the basis for drafting legislation. Given the grumblings that the Code sets the bar too high, perhaps some Health Infoway funds should be used to study the impact of its implementation. The patients at the heart of this system deserve no less. There are several key principles that guided the development of the Health Information Privacy Code and upon which it is based: 1. The provision of health care to all Canadians irrespective of social circumstances or health status is a highly regarded value in Canadian society. The system is publicly funded and universally accessible. 2. The right of privacy is fundamental to a free and democratic society. 3. Rules relating to health information must recognize its special nature. Health information has a high level of sensitivity and is confided or collected in circumstances of vulnerability and trust for the primary purpose of benefiting the patient. 4. The hallmark of the medical profession since the time of Hippocrates has been the willingness and ability to hold information confided secret. 5. The patient-physician relationship is one of trust. A central feature of this trust is the belief of patients that information confided in or collected by physicians and other health care providers will be kept secret. 6. Patients believe that the information they disclose or that is gathered as a result of their seeking health care will be used to provide them with health care. Use beyond the provision of health care without knowledge or consent goes beyond what a patient’s reasonable expectations were when information was confided or collected and therefore is a breach of the trust patients place in their physicians. 7. Except in very limited circumstances, consent is required for health information collection, use, disclosure or access for any purpose. 8. Information required to provide patients with the health care sought should be readily available to those who require it to provide an aspect of care as consistent with the wishes of the patient. 9. Uses of health information for purposes other than the provision of health care to the person seeking care should be subject to rules that: - protect and promote privacy and confidentiality; - generally require express consent; - can be justified according to specific criteria. 10. Patients should know the uses to which their health information may be put prior to disclosing it. 11. Patients may be reluctant to disclose information if they are concerned about the uses to which the information is put or the persons entitled to access it. B. Public Opinion To determine the public’s views on issues concerning privacy and health information, CMA commissioned Angus Reid to conduct research in two forms, quantitative (survey) and qualitative (focus groups), and has found the following: 1. Canadians believe that health information is the most sensitive type of information, and indeed more sensitive than their financial information. 1. 2. Canadians believe that their health information will be kept confidential and consider this to be important. 3. Canadians believe it important to know and control how their health information is shared with others. 4. Canadians do not want their health information released to third parties (including governments and researchers) without their knowledge and consent. 5. Canadians have concerns about the release of delinked or anonymous information to third parties without their consent. 6. Some Canadians are reluctant to confide information to their physicians due to concerns about it subsequently being disclosed to others without their consent. 7. Patients believe that privacy rules should apply equally to the public and the private sector. These findings are consistent with the published literature and other findings relating to the public’s concerns about privacy and confidentiality. The CMA Health Information Privacy Code was developed in consideration of these views. Once developed, its principles were subsequently tested with the public in a series of cross-country focus groups and it was found that the Code appears to enjoy considerable public support. C. The Advisory Council Report The Advisory Council Report relates to the electronic health record. However, given the direction towards the greater use of technology and the underlying principles informing the Advisory Council, its recommendations are generalizable to all health information. A key principle of the Advisory Council Report is that access by health care professionals should be based on a need-to-know basis under the strict control of the patient. The Council, like CMA, calls for scrutiny and justification of secondary uses of health information. The Council is opposed to the use of multipurpose identifiers on the grounds that it becomes too easy for government officials from one department to gain access to a person’s health record or to combine a number of records to assemble a comprehensive profile. (Anecdotal evidence suggests that this concern may be justified and that there are insufficient safeguards preventing the flow of health information among government departments.) The Council recommends that all governments ensure that they have legislation to address privacy protection specifically aimed at protecting personal health information through explicit and transparent mechanisms. Included in these mechanisms are: * The provision of a precise definition of free and informed consent, as well as a statement of principle that informed consent should be the basis for sharing personal health information; * Any exemption to the requirement of informed consent should be clearly set out in law. More specifically, legislative guidance should be provided on how to balance the right of privacy with the public good for research purposes to implement a coherent and harmonized pan-Canadian system for independent, ethical review. * There should be provisions regulating secondary uses of non-identifiable health information. These provisions should address privacy concerns surrounding the degree to which data might be linked back to an identifiable individual. * Legislation should set clear limits on access to and use of health information by third parties outside the health care system. To prevent the serious invasions of privacy that can result from the unrestricted linking of personal health information with other kinds of information on the same individual, the legislation should contain provisions prohibiting the use for any other purpose of unique personal identifiers in health information systems. D. The Approach in Bill C-6 Bill C-6 begins with the right premise: that “rules to govern information collection, use and disclosure” should recognize the “right of privacy”. However, it fails to recognize the special nature of health information and to tailor its provisions accordingly. In consequence, there is confusion and uncertainty about Bill C-6's application to health care. Even more seriously, however, Bill C-6 fails to recognize that health information requires stronger or greater privacy protection than other types of information. The Bill makes a cursory attempt at distinguishing among varying types of personal information and gives inadequate additional protection to information that is highly sensitive (such as health information), notwithstanding the provisions in Paragraph 4.3.4 of Schedule 1 concerning consent which do provide some latitude for more stringent requirements in the case of sensitive information. The Bill permits the collection, use and disclosure of information without knowledge or consent on grounds such as expediency, practicality, public good, research, offence investigation, historic importance and artistic purposes. In the context of health information, these grounds should be subject to intense scrutiny to determine their relevance and legitimacy. Some of these grounds would not withstand scrutiny if subjected to the tests established in the CMA’s Health Information Privacy Code. E. Conclusion CMA believes that health information is special and deserves a higher level of privacy protection than other types of information. The Advisory Council Report also recognizes that distinct rules, more protective of privacy, are required for health information. The Council’s Report places strong emphasis on the protection of privacy, recognizes that, as a general rule, the flow of health information should be on a need-to-know basis and under the control of the patient through the exercise of free and informed consent, and requires limits on the secondary use of health information. The inadequacy of Bill C-6 for health care is not surprising because clearly it was not drafted with health information in mind. Rather, it is written from the perspective of encouraging commerce. It appears to have access to information as its dominant value. However, the world of health care is very different from that of commerce and distinct rules that are more protective of privacy. The CMA Health Information Privacy Code begins from the same starting point as Bill C-6, the Canadian Standards Association (CSA) Code which the Bill includes as Schedule 1. However, unlike Bill C-6, the CMA Code tailors the CSA Code to the specific circumstances of health information. The CMA Health Information Privacy Code, therefore, is able to address issues specific to health information that Bill C-6 either fails to address or, even worse, creates. It offers a template for the protection that should be specifically accorded to the right of privacy in health information, a template that appears to have considerable public support and is designed to uphold patient confidence in their physicians and the health care system. Amending Bill C-6 to incorporate the principles in the CMA Code would ensure adequate privacy protection. CMA recommends: That Bill C-6 be amended to incorporate specific provisions relating to health information and that the provisions of the CMA Health Information Privacy Code provide the basis of such provisions. CMA developed the Health Information Privacy Code in recognition of trends and developments that pose new threats to patient privacy and the trust of the therapeutic relationship. In recent years the secondary use of information for purposes other than the purposes for which it was collected has been increasing without adequate oversight or public knowledge. This ‘function creep’ undermines the trust of patient-physician relationship. Collection and use beyond the therapeutic context and for purposes unrelated to the provision of direct care should be subjected to rigorous scrutiny before they are permitted to occur. To the extent that they are permitted to occur without patient consent they should be explicitly authorized in legislation to ensure transparency and adequate oversight. CMA’s Health Information Privacy Code provides a test to which legislation addressing health information should be subjected. This test (found in section 3.6 of the CMA Code) states: Any proposed or existing legislation or regulation made under legislative authority that permits or requires health information collection, use, disclosure or access shall be subjected to the following legislative test: (a) There must be demonstration that: (i) a patient privacy impact assessment has been conducted, the analysis has been made public and has been duly considered prior to the introduction of legislation [section 3.5 of the Code provides guidance with respect to the patient privacy impact assessment]; (ii) collection, use, disclosure and access will be limited to the greatest degree possible to ensure that * the collection of health information by persons external to the therapeutic context will neither trade on nor compromise the trust of the patient-physician relationship; * patients are not likely to be inhibited from confiding information for primary purposes; * the ability of physicians to discharge their fiduciary duties to patients will not be compromised; and, * patient vulnerability will not be exploited; (iii) collection, use, disclosure and access will be restricted to what is necessary for the identified purpose(s) and will not impede the confiding or collection of information for primary purposes; (iv) provisions exist for ensuring that patients are provided with knowledge about the purpose(s) and that, subject to 3.6(b), patient consent is clearly voluntary; (v) the means used are proportionate and the collection will be limited to purposes consented to or made known to the patient; (vi) the patient’s privacy will be intruded upon to the most limited degree possible in light of the purpose(s) consented to or made known to the patient; (vii) linkage of the health information will be limited; and (viii) unless clear and compelling reasons exist: * all reasonable steps will be taken to make health information anonymous; and * if it has been demonstrated that making health information anonymous would render it inadequate for legitimate uses, the information will be collected and stored in a deidentified-relinkable format. (b) When nonconsensual collection, use, disclosure or access is permitted or required by legislation or regulation that meets the requirements of the Code, the following conditions must also be met: (i) the right of privacy has to be violated because the purpose(s) could not be met adequately if patient consent is required; and (ii) the importance of the purpose(s) must be demonstrated to justify the infringement of the patient’s right of privacy in a free and democratic society. (c) Any legislative provision or regulation that permits or requires health information collection, use, disclosure or access nonconsensually shall not, without compelling reasons, be applied retroactively to existing health information. In its current form, Bill C-6 would not pass the scrutiny of the test. Consequently, CMA recommends: That the proposed rules for health legislation be subject to the legislative test found in CMA’s Health Information Privacy Code and formulated in light of this process. IV. Specific Comments on Bill C-6 From the Perspective of CMA’s Health Information Privacy Code This section highlights some key distinctions between the approach taken by Bill C-6 and CMA’s Health Information Privacy Code. It uses examples to illustrate divergent approaches taken for the purpose of demonstrating that Bill C-6 is inadequate in the protection it accords health information and to show how the CMA Health Information Privacy Code would address the issues adequately. A. General Bill C-6 and CMA’s Health Information Privacy Code are based on the Canadian Standards Association’s Model Code for the Protection of Personal Information (CSA Code). Bill C-6 and the CMA Code also augment the CSA Code’s provisions where considered necessary. The need to extend the provisions of the CSA Code demonstrates that the CSA Code, being general in nature, provides inadequate protection to information in many instances. The CSA recognized this at the time it developed its Code and specifically issued additional, specific guidance for health information in the form of an appendix to the Workbook for applying the Code. The Workbook begins: Information regarding one’s health and health records may be among the most sensitive of all personal data. Individuals are concerned that inappropriate disclosure of such information could unduly affect their employment status or their lives in general. . . Some health information is obtained directly from health care providers who have been given a patient’s private information with the expectation that this information will remain as a private communication. Health care providers . . . in turn, feel that such concerns could influence individuals to withhold vital information or avoid treatment to ensure their private information remains as such. Implementation of privacy procedures that adhere to the principles in the CSA Code and rigid applications of such procedures are essential steps for organizations that require access to health information, to maintain an individual’s trust that sensitive personal information remains confidential. In designing and implementing such procedures, organizations should recognize the sensitive nature of such information and also the fact that the primary reason that health care providers maintain records is to ensure that safe and efficacious care is provided. The Workbook goes on to list 7 interpretative points to augment the CSA Code, providing additional privacy protection as it applies to health information, including the following: requirements for the individual’s knowledge and consent be rigidly followed. Consent to acquire and disclose health information should be undertaken with the individual’s full knowledge of the scope of information to be requested. Bill C-6 does not include these additional interpretive points. It does not give due recognition that health information, because of its high sensitivity, deserves even stronger protection than is provided in the CSA Code as appended in Schedule 1 of the Bill (which even the Committee that drafted the CSA Code recognized). Although Bill C-6 and the CMA Code are based on the CSA Code, each takes a different approach to the ultimate protection accorded information and to the right of privacy. This divergence demonstrates that there are many ways to resolve issues left unresolved by the CSA Code. In other words, it is not a foregone conclusion that basing provisions on the CSA Code will result in appropriate or adequate protection of information. Rather, resolution of issues requires thought and deliberation and will depend in some measure on the primacy given to certain values. Bill C-6 appears to have given access primacy in the pursuit of commerce, whereas CMA gives privacy protection primacy in the pursuit of the provision of health care in accordance with physicians’ fiduciary obligations to patients and the integrity of the patient-physician relationship. CMA did not develop its approach in a vacuum. It reviewed, and was inspired by, the report of the House of Commons Standing Committee on Human Rights and the Status of Persons with Disabilities, entitled Privacy: Where Do We Draw the Line? This report articulates and makes explicit many of the issues that should be informing the current debate on Bill C-6. In addition, the Report of the Advisory Council takes a very different approach than Bill C-6. The Report recognizes the need to pay more than lip service to protecting privacy and confidentiality and recommends specific measures aimed at doing this. B. Primacy of the Therapeutic Purpose The root of most of the problems in applying Bill C-6 to health care is its failure to distinguish among purposes for the collection, use and disclosure of health information. In particular, the Bill fails to distinguish between the primary purpose, which is to deliver care to and for the benefit of an individual patient, and secondary purposes, which are not for the direct benefit of the patient and indeed may even involve using the patient’s information to his or her detriment. Under Bill C-6, the same rules apply equally to both the primary and to secondary purposes. In other sectors this failure to distinguish different purposes and to fashion rules in light of salient differences may not pose problems. In the health care sector, however, the consequences could be quite serious. As applied to secondary purposes, the provisions in Bill C-6 fail to limit access appropriately. Access to information may occur in ways that are inappropriate and violate the privacy of patients. As applied to the primary purpose -- the use of a person`s information to provide that person with care -- the rules in the Bill, if rigidly construed, may inhibit access that would otherwise be appropriate and consistent with the patient`s right of privacy. For example, the consent provisions in the Bill could create impediments to information flow where various members of a ‘health care team’ require information about the patient in order to be effective for the patient’s benefit; the provisions in the Bill that seek to limit the extent of information collection could inhibit physicians from being as extensive as they sometimes are and should be in collecting information from patients for the purpose of providing care; the provisions in the Bill requiring that the patient`s request to review his or her record be in writing could in fact be a barrier to patient access which might otherwise be facilitated informally and consistently with the patient`s wishes by a simple verbal request. Such consequences no doubt would be unintended by the drafters of the Bill; the drafters might even argue that for someone to interpret the provisions mentioned above as potentially leading to these consequences would be to misinterpret them. Regardless, the fact is that the Bill, on these matters and others, is somewhat strained when its provisions are applied to health care. The CMA Health Information Privacy Code, however, is not. It begins from the same starting point as Bill C-6, which is the CSA Code. However, the CMA, recognizing (as the drafters of the CSA Code apparently also did) that the CSA Code would need to be tailored to deal adequately with health information, did so in drafting its Health Information Privacy Code. This document was written from the ground up not just with privacy first and foremost as a value but also with specific reference to the health sector. And it is based on the fundamental premise that not all purposes for the use of health care are equal and that the therapeutic purpose must be given primacy. Thus the CMA Health Information Privacy Code avoids the kind of problems identified above that might arise as Bill C-6 is applied to health information. For example, it specifies that the collection of health information for the primary purpose of providing care “may be as extensive as necessary to fulfil these purposes and reflect the high level of trustworthiness and accountability of health professionals in the therapeutic context” (3.2) but that for any secondary purposes it should be “as minimal as necessary in recognition of the need to protect the patient’s right of privacy in the therapeutic context” (3.3.). As concerns consent, which CMA recognizes to be core to the protection of privacy, the CMA Code articulates rules for consent in recognition of the importance of timely information flow in the team context and as appropriate to meet the purpose for which the patient has confided the information in the first place, which is to receive care. It stipulates that consent for the primary purpose may therefore be implied, albeit with certain qualifications. Moreover, where consent is required, the provisions of the Code allow that “the conveyance of generic information is a reasonable means of providing knowledge” in most circumstances, which means that this requirement is unlikely to create unreasonable burdens that would diminish rather than strengthen the therapeutic relationship. Finally, the CMA Code limits itself to issues of principle concerning patient access to their records; Bill C-6, by specifying that requests must be in writing, could in fact be creating a barrier to patient access or an undue burden upon the patient-physician relationship as there may be instances when an informal request would be quite appropriate. C. Knowledge of Purpose Prior to Collection Bill C-6 Bill C-6 is ambiguous in its provisions relating to whether or not a person should know the purposes for which information will be used prior to disclosure. This is due in part to the use of the term “knowledge and consent” as one concept rather than distinguishing the knowledge requirement from the consent requirement. What a person should know in relation to the purposes for which information might be used or disclosed, prior to its being given, is distinct conceptually from whether the person must consent before information can be used or disclosed for a particular purpose. Schedule 1 of the Bill contains a number of principles. For the purposes of this Brief the schedule will be referred to in terms of the principles (and their subparagraphs). Principle 2 addresses the identification of purposes for which information will be used or disclosed. Provided a purpose is identified it becomes a legitimate purpose (this Brief recognizes that the addition of the “reasonable person” clause in 5(3) takes precedence and provides some grounds for distinguishing legitimate and illegitimate purposes). Subparagraph 3 states that the identified purposes should be specified at or before the time of collection. Section 5(2) of the Bill states that the use of ‘should’ in schedule 1 indicates a recommendation and does not impose an obligation. Therefore, according to subparagraph 3, it is recommended but is not obligatory that disclosure occur. On the other hand, principle 3 addresses consent and appears to impose an obligation by stating that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. Similarly subparagraph 2 appears to create something of an obligation by stating, “organizations shall make a reasonable effort to ensure that the individual is advised of the purposes for which the information will be used.” Section 7(1)(a) permits the collection of information without knowledge and consent when collection is clearly in the interests of the individual and consent cannot be obtained. The intent of this section could be made clearer, particularly in terms of who determines the “interests of the individual.” Otherwise this exception could give undesirable licence to collect without knowledge or consent. The provision in section 7(1)(b) is more problematic. This section appears to favour withholding knowledge from an individual if such knowledge would compromise accuracy, defeat the purpose for collection or prejudice the use. In some instances it may well be that, if an individual is provided with knowledge of the purposes for which information is collected and the uses to which it will be put, he or she may choose to withhold information rather than disclose it, and in doing so would clearly compromise accuracy, defeat the purpose for collection or prejudice the use to which the information will be put. This is contrary to principle 4.4.2, which recognizes that information should not be collected by misleading or deceiving individuals. The intent of this section should be far clearer and circumscribed in such a way as to make it clear that it is not permissible to withhold knowledge or not seek consent simply on the basis that if a person had knowledge they would not wish to disclose information. Section 7(1)(c) allows collection without knowledge or consent for journalistic, artistic or literary purposes. This provision is totally inappropriate in the case of health information. CMA Health Information Privacy Code The CMA Health Information Privacy Code is considerably more restrictive that Bill C-6. It recognizes that, in the therapeutic context, health information is confided or collected under the patient’s presumption that it is necessary to meet his or her therapeutic needs. The potential that health information may be subsequently collected, used, disclosed or accessed for other purposes without patient consent should be made known to patients before information is confided or collected for the primary therapeutic purpose. Moreover, it is not acceptable to withhold knowledge from patients deliberately out of concern that knowledge could inhibit them from confiding important information fully and truthfully. The CMA Health Information Privacy Code limits the nonconsensual collection of health information to circumstances where it is either permitted or required by legislation or ordered or decided by a court of law. In addition, the CMA Code gives explicit direction to legislators with respect to the conditions under which legislation should permit or require health information collection (see section 3.6 of CMA Code). In the case of nonconsensual collection, the following conditions are stipulated: 1. The right of privacy has to be violated because the purposes could not be met adequately if patient consent is required; and 2. The importance of the purposes must be demonstrated to justify the infringement of the patient’s right of privacy in a free and democratic society. D. Use Without Knowledge Or Consent Bill C-6 Once information has been collected and despite the limits, inadequate though they be, placed on collection without knowledge or consent, it can be put to even greater use than for the purposes for which it has been collected (with or without knowledge or consent). Section 7(2) opens up dramatically the uses to which collected information may be put without either knowledge or consent. At a minimum, and with little additional administrative effort, the enumerated grounds of section 7(2) (and 7(3) should be made known to an individual prior to their disclosure of information, which would be in keeping with the principle of openness and explicitness. Section 7(2)(a) allows use in connection with the investigation of an offence. In the medical context this could be problematic, particularly if it is interpreted to impose an obligation. Generally, there is no obligation to assist in the investigation of an offence, and indeed the fiduciary duty between patient and physician and the duty of confidentiality owed to the patient by the physician would suggest that physicians not offer information, despite its usefulness. Section 7(2)(b) recognizes emergency situations. However, as worded, section 7(2)(b) would allow access to anyone’s information if it is for the purpose of acting in an emergency threatening the life, health or security of an individual. The implications of this section should be carefully thought through. It is not desirable to give such a broad licence to access anyone’s information on the basis of an emergency. There should be some limiting principle that takes into account the prevailing view that people generally are not required to go to the assistance of others (emergency or otherwise) and that information about oneself is considered worthy of protection against use or disclosure, despite its potential benefit to others (for example, genetic information or HIV or Hepatitis C status). Section 7(2)(c) is very problematic as it permits the use of “identifiable” information for a host of purposes, including statistical and research, when it is impractical to seek consent. Even though the Commissioner must be informed of the use before the information is used the Commissioner has no power to approve or reject the use. If the use is legitimate under the Bill there would be no grounds open to the Commissioner to cause an audit to occur. This section gives significant scope for the secondary use of information that has been collected without knowledge or consent; in the case of health information it is very problematic. CMA Health Information Privacy Code The CMA Code makes a clear distinction between the primary purpose for the collection and use of health information and secondary purposes for its use. The key distinction between these two categories is that primary purposes relates to the provision of the health care benefit sought whereas secondary purposes are ends or aims that are not directly related to the provision of care. The CMA Code divides secondary purposes into two categories: 1. Secondary legislated purposes are those purposes that have been subjected to the legislative test specified in the Code and have subsequently been written into law; 2. Secondary nonlegislated purposes are any other purposes, such as education or research not governed by legislation, that meet the provisions of the CMA Code and the secondary nonlegislative test provided by the Code. The tests that the CMA Code requires of both relate to: 1. Impact on privacy. 2. Impact on the patient-physician relationship, especially confidentiality and trust. 3. Impact on the willingness of patients to disclose information. 4. Impact on patients’ ability to receive care. 5. Evidence of broad public support for the measure. 6. The use will not exploit or compromise the trust of the patient-physician relationship. 7. Patient vulnerability will not be exploited. 8. Under most circumstances patients will be fully informed of the purpose and patient consent will be clearly voluntary. 9. Patient privacy will be intruded upon to the most limited degree possible. 10. Linkage of health information will be restricted and consented to by patients. In other words, the CMA Code does not permit any and all secondary purposes for the use of health information. Rather, it requires justification for the secondary use and assurance that the secondary use will neither impede nor undermine the patient-physician relationship and the provision of health care to the patient. This test is much more privacy protective than the “reasonable person” test the Bill contains in Section 5(3). Moreover, the CMA Code only permits use without consent if it is permitted or required by legislation or when ordered or decided by a court of law. The Advisory Council Report Like the CMA, the Advisory Council Report makes distinctions among various types of uses. The Report calls for legislation to clearly prohibit all secondary commercial use of personal health information (in which respect the Advisory Council takes an even stronger position than the CMA). In addition, the Report recommends that there be provisions regulating secondary uses of non-identifiable health information and that such provisions should address privacy concerns surrounding the degree to which such data might be linked back to an identifiable individual. In this context, the Report recommends that legislation set clear limits on access to and use of health information by third parties outside the health care system. In addition the Report reviews the uses of health information for statistical and research purposes. In connection with research, the Report calls for a number of safeguards and restrictions: 1. Where the data sets used have a higher level of potential identifiability, “the general rule should be informed consent and stringent assurances about privacy protection and security arrangements are necessary before a researcher can have access to personally identifiable information.” 2. The Report recognizes that in some instances it may be impractical to obtain consent from patients. Whether in anonymous or identifiable form, the Report requires that notice be given about the use of the information. In the case of the use of identifiable information, the Report states that the research should be subject to independent ethics review with the onus on the person seeking to use the information without consent to demonstrate that: (a) a tangible public good of significant benefit will result; (b) consent is impossible to secure at a reasonable cost; (c) less identifiable data will not serve the same purpose; and (d) no harm can occur to any person directly or indirectly as a result of this use of his or her personal information. E. Disclosure Without Knowledge Or Consent Bill C-6 The comments found under C. and D. above apply equally here. Section 7(3) adds further instances when collected information can be disclosed to others without knowledge or consent. CMA Health Information Privacy Code In the case of secondary use of health information, the CMA Code takes a far more restrictive approach. As concerns use, disclosure or access, it states: The potential that health information, in whole or in part, may be subsequently collected, used, disclosed or accessed for other purposes without their consent, and what those purposes might be, must be made known to the patient by reasonable means before it is confided or collected for primary purposes. Moreover, the CMA Code recognizes that information disclosed by one organization is collected by another. The Code defines collection to mean: the act of accessing, receiving, compiling, gathering, acquiring or obtaining health information from any source, including third parties, and by any means. It includes information collected from the patient, as well as secondary collection of this information in whole or in part by another provider or user. The collecting organization should be bound by the provisions of the CMA Code, which generally requires consent for use for any purpose and always requires knowledge of the potential purposes that information will or must be put to prior to the information being disclosed. CMA’s Code states: Health information custodians must ensure that third parties privy to health information have adopted this Code or are bound by equivalent provisions. Finally, the CMA Code explicitly recognizes that information can be retrieved from a variety of sources to formulate records. Any and all such practices and the composite form developed are given the same degree of protection as that accorded information collected directly from the patient. F. Consent Bill C-6 In those cases where consent for collection, use or disclosure are required, the provisions in Bill C-6 are inadequate as applied to health care. Schedule 1 distinguishes between express and implied consent. Express consent is not adequately defined and it appears that this is not equivalent to what in health care is called ‘informed consent’. For example, Principle 4.3.2. says that “organizations shall make a reasonable effort to ensure that the individual is advised of the purposes for which the information will be used”. In the health care context, the notion of ‘reasonableness’ with respect to the doctrine of informed consent applies not to the effort to advise or inform (that much is assumed or given) but rather to determinations regarding what information should be provided to the patient. In addition, the application of some of the means described in Principle 4.3.7 by which individuals can give consent, and in particular the ‘negative option’ checkoff box in (b), may be quite problematic in the health care context. The broad scope allowed to implied consent in the Bill is also worrisome as applied to the health care setting. Principle 4.3.6 says “implied consent would generally be appropriate when the information is less sensitive”. However, with implied consent the issue is not the sensitivity of the information but rather the wishes of the patient. It is appropriate to infer consent even when the information is very sensitive provided one has reason to believe this is grounded in the patients wishes; conversely, it is not appropriate to infer consent, even in the case of information deemed not to be sensitive, if there is reason to believe the patient would object if asked explicitly. CMA Health Information Privacy Code The CMA Code furnishes clear definitions for consent: “Consent” means a patient’s informed and voluntary agreement to confide or permit access to or the collection, use or disclosure of his or her health information for specific purposes. For purposes other than the provision of direct care, which is the purpose for which the patient presents in the first place, the consent must always be explicit or express since there is no logical connection between secondary purposes and the desire to achieve care. Therefore inferences cannot be made with any confidence. The Code defines express consent as follows: “Express consent” is given explicitly, either orally or in writing. Express consent is unequivocal and does not require any inference on the part of the provider seeking consent. The CMA Code defines implied consent to disallow the loose use of the term, which is increasing today, to justify access for purposes (secondary purposes in particular) that the patient may not wish to occur: Implied consent arises where agreement may reasonably be inferred from the action or inaction of the individual and there is good reason to believe that the patient has knowledge relevant to this agreement and would give express consent were it sought. The CMA Code also lays out clear rules for the use of the concept of consent and makes clear that consent can be inferred for primary purposes (i.e., the provision of health care to the patient) but not for secondary ones, which require express consent. The Code grounds the notion of implied consent not in the desire to subvert express consent and thereby gain access to information that might otherwise be denied but rather in the wishes of the patient and the importance of providing health care for therapeutic purposes as consistent with those wishes. Advisory Council Report In addition to being more stringent than Bill C-6 about exemptions to consent, the Advisory Council Report also gives greater importance to defining the term clearly and strictly. It says that any legislation concerning health information should: contain a precise definition of free and informed consent, as well as a statement of principle that informed consent should be the basis for sharing personal health information. Although not as precise and emphatic on the subject of consent as is the CMA Health Information Privacy Code, the Report is certainly more so than is Bill C-6. G. Information Flow Within Organizations Bill C-6 Bill C-54 defined use to include “the transfer of personal information within an organization.” Bill C-6 no longer defines use, which leaves it uncertain whether the definition of use quoted above from Bill C-54 would be a reasonable interpretation of Bill C-6. If so, this would create a problem. Interpreting use in this way could have the effect of inappropriately restricting the free flow of information within an organization. In the health care context this is not a reasonable or desirable outcome and would hinder, rather than promotes, the patient’s right of privacy. CMA Code The CMA Code recognizes that the free flow of health information is desirable to the extent that it furthers the provision of the health care benefit sought and that it occurs with patient consent. The Code defines the primary purpose to mean: (i) Primary therapeutic purpose is the initial reason for a patient seeking or receiving care in the therapeutic context, and pertains to the delivery of health care to a particular patient with respect to the presenting health need or problem. It encompasses consultation with and referral to other providers on a need-to-know basis. (ii) Primary longitudinal purpose concerns developing composite health information about a particular patient, such as a detailed medical history, beyond direct application to the presenting health need or problem, in order to enhance ongoing care to that person. The Code goes on to state that: Health information collection, use, disclosure or access for the primary therapeutic and longitudinal purposes may be as extensive as necessary to fulfil these purposes and reflect the high level of trustworthiness and accountability of health professionals in the therapeutic context. And further states that: Security safeguards shall impede as little as possible health information collection, use, access and disclosure for primary purposes. Finally, in addressing consent the Code states: Consent to health information collection, use, disclosure and access for the primary therapeutic purpose may be inferred. Consent to subsequent collection, use, disclosure and access on a need-to-know basis by or to other physicians or health providers for this purpose, and for this purpose alone, may be inferred, as long as there is no evidence that the patient would not give express consent to share the information. The principles in the CMA Code that give effect to the patient’s right to control what happens to his or her information are not incompatible with the free flow of information among members of a health team for the purpose of providing care to the patient. Indeed, they facilitate and enable this flow to the extent this is in keeping with the patient’s wishes. H. Information Protected Bill C-6 The Bill covers “personal information” which is defined to mean “information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an oganization.” This definition raises a host of questions: 1. Does the Bill cover information that has been delinked to an identifiable individual but that could be relinked to identify them? 2. Does the Bill only exclude anonymous information - that is, information that could never be relinked to an identifiable individual? And if so, is there an unjustified assumption that information can, in all cases, be rendered truly anonymous? 3. In the case of delinked and anonymous information, who decides that information about an identifiable individual can be rendered delinked or anonymous? The holder of the information or the person to whom the information pertains? 4. Is it accurate or reasonable to assume that people have no interest in information emanating from them once it has been rendered delinked or anonymous? 5. Given that anonymous information is generated from personal information, is the act or process rendering personal information into anonymous form considered a use under the terms of the Bill, and if so does this use require consent? In considering these questions, it is important to keep in mind that the concept of “anonymity” means different things to different people. Moreover, there are no generally used or accepted standards that address what is required to render identifiable information truly anonymous. As a consequence, different people use different standards (of varying degrees of rigour), if they use a standard at all. It is also important to note that, in virtue of sophisticated techniques for identifying individuals from supposedly anonymous information, there is debate about the extent to which true anonymity can ever be achieved or guaranteed. CMA Health Information Privacy Code In light of issues concerning the definition of ‘personal information’ and in the interest of ensuring a thorough scrutiny of information practices, the CMA Code provides a broad definition of health information: Health information means any information about a patient that is confided or collected in the therapeutic context, including information created or generated from this information and information that is not directly or indirectly linked to the provision of health care. It includes all information formats. The CMA Code covers identifiable information, delinked information, anonymous information and any composite form that is produced when health information is linked to other information about the patient. CMA’s research indicates that patients have an interest in their information even when it is in delinked and in anonymous formats. This view has recently received support from a decision of the High Court of Justice in England that is particularly relevant in the context of the commercial use of health information (Source Informatics Ltd. v. Department of Health). The issue arose because a prescription database company sought judicial review of a Department of Health policy document that advised National Health Service GPs and pharmacists not to sell “anonymous” prescribing or dispensing information. The document contained the following analysis: Anonymisation (with or without aggregation) does not, in our view, remove the duty of confidence towards the patients who are the subject of the data. Apart from the risk of identification of a patient despite anonymisation, the patient would not have entrusted the information to the GP or the pharmacist for it to be provided to the data company. The patient would not be aware of or have consented to the information being given to the data company, but would have given it to be used in connection with his care and treatment and wider NHS purposes. Anonymisation of the data (with or without aggregation) would not obviate a breach of confidence. . . .The duty of confidence may in some circumstances be outweighed by the public interest in disclosure. However we have severe reservations that disclosure by GPs or NHS pharmacists of dispensing information to X or other data companies would be argued to be in the public interest. Indeed it might well be contrary to the public interest if the data company is further selling the information on doctors prescribing habits to the pharmaceutical industry. High Court Justice Latham upheld the policy document, arguing that the information in question, though anonymous, was nonetheless confidential. He also argued that consent to its release was necessary and could not be implied, and that the breach of confidentiality involved in selling this information could not be justified as being in the public interest: In my view, it is impossible to escape the logic . . . that the proposal involves the unauthorised use by the pharmacist of confidential information. . . . In my judgement what is proposed will result in a clear breach of confidence unless the patient gives consent, which is not part of the proposal at present. Nor is it suggested that the patient can be said to have given implied consent. . . . I recognize that, for some, the sensitivity, as they see would see it, of the information may be such that they would feel that any use of the information without their consent, would be unconscionable. In other words it would be a breach of trust which they were reposing in the pharmacist. . . I have come to the conclusion that . . . this [is] a type of situation . . . in which there is a public interest in ensuring that confidences are kept. It is important that those who require medical assistance should not be inhibited in any way from seeking or obtaining. As I have indicated, I believe that there may be some patients who will feel very strongly that the pharmacist should not give any information obtained from the prescription without their consent. In view of the fact that there is a growing industry in so-called anonymous health information, it is important to ensure that this information is protected as consistent with the duties of health care providers and the expectation patients have that their providers will keep their information confidential. Advisory Council Report The Advisory Council Report addresses this issue in a number of ways. In making recommendations concerning the definition of health information, the Report calls for legislation that embodies: a clear definition of health information, broad enough to incorporate health information collected in public and private systems and to ensure that equal obligations and penalties apply to both public and private sectors. The Report recognizes a spectrum of data formats: completely anonymous, linked to pseudo-identities, code linked and reidentifiable, completely identifiable. In terms of sensitivity, the Report notes that information that can be re-identified is somewhat more sensitive than completely anonymous data or anonymous data linked to pseudo-identities and that completely identifiable health information is the most sensitive type of health information. The Report also notes that there can be some degree of risk of re-identification of what was believed to be anonymous data through such processes as data matching and the results of analysis using small cells. In this light, the Report recommends that legislation should recognize: A definition of personal health information, which takes into account the spectrum of potential identifiability in the case of health information. Furthermore, in the case of secondary uses of health information, the Report notes that provisions regulating secondary uses of non-identifiable health information must form part of any comprehensive legislation. Such provisions should address privacy concerns surrounding the degree to which data might be linked back to an identifiable individual. The Report raises further issues relating to the use of delinked and anonymous data. The Report notes that there may be group interests and concerns regarding data collected and states: Privacy can also be a concern for groups such as Aboriginal and immigrant communities. These communities worry that research on their members could be released to the media without notice and used in a negative way. This emerging issue is growing in importance and, in the Council’s view, should be a serious consideration in the context of ethical reviews of proposed research projects. It is important to note that, in these instances, it is not the fact that data is linked to an identifiable individual that is of concern. Rather, it is the ability to accumulate, process and dissect information that has ramifications for an individual because they are part of a group segregated and identified by the research. Finally, the Report considers the use of person-oriented data (data linked to individuals in a form where personal identifiers have been replaced by a code) for statistical purposes and notes that this too raises concerns about privacy. The Report notes that: “These concerns have traditionally been seen as a tradeoff against data access for research and analysis in the public interest.” The Report restates this to provide a more positive view of privacy and states: the best way for analysts to maintain the public’s consent to use sensitive (but anonymous) health data is to show the public that privacy, confidentiality and security are being taken seriously. In view of the issues concerning the definition of personal information and in the interest of ensuring maximum scrutiny of practices concerning health information and maximum protection of the right of privacy with respect to health information, CMA recommends: That there be a clear definition of the information being accorded a right of privacy and that this definition, at least in the case of health information, include identifiable information, delinked information, anonymous information and any composite information produced when health information is linked to any information about a person from any other source. I. Individual Access Bill C-6 Bill C-6 restricts the right of individual access to personal information. The grounds for denying access to information are inappropriate in the health care context. CMA Code The CMA Code follows the prevailing case law as it relates to medical records. Primarily this gives patients a right of access to their record in all but very limited circumstances. These circumstances are when there is a significant likelihood of a substantial adverse effect on the physical, mental or emotional health of the patient or substantial harm to a third party. The onus lies on the provider to justify denial of access on these grounds. J. Accuracy and Amendment Bill C-6 Bill C-6 requires that information be as accurate, complete and up-to-date as possible and that it shall not be routinely updated unless this is necessary to fulfil the purpose for its collection. In so far as amendment is concerned, Bill C-6 permits amendment to the record in specified circumstances. CMA Code The CMA Code takes a different approach in light of the nature and purpose of health information. The Code recognizes that the recording of statements of fact, clinical judgements and determinations or assessments should reflect as nearly as possible what has been confided by the patient and what has been ascertained, hypothesized or determined to be true using professional judgement. In terms of amending the record in light of a patient’s request, the CMA Code seeks to preserve the original record but also provide for noting the patient’s concerns. To accommodate both requirements the CMA Code states: Patients who have reviewed their information and believe it to be inaccurately recorded or false have the right to suggest amendments and to have their amendments appended to the health information. K. Sensitivity Bill C-6 Schedule 1 recognizes that medical records have a high level of sensitivity attached. For this reason this information may warrant special attention concerning consent, reasonable expectations, individual access and the degree of security that is appropriate. CMA Code The CMA Code recognizes that, even as all health information is sensitive (when considered against other forms of information about individuals), there are also variations in the level of sensitivity in various aspects of the health record. The CMA Code defines the “sensitivity of health information” to refer to: the patient’s interest in keeping the information secret. It varies according to the nature of the information, its form, and the potential negative repercussions of its collection, use or disclosure on the patient’s interests. Under the Code’s consent provisions it is stated that: Although all health information is sensitive and should be treated as such, the more sensitive the health information is likely to be, given what is known about the circumstances or preferences of the patient, the more important it is to ensure that consent is voluntary and informed. With respect to security the Code states: The development of security safeguards with respect to levels of access for various users shall recognize the differences in the sensitivity of health information and permit access accordingly. Moreover, the Code recognizes that health information is special and therefore requires distinct rules that afford stronger privacy protection not just due to its sensitivity but also to the circumstances of vulnerability and trust under which it is initially confided or collected. These special circumstnaces, which include much more than sensitivity, are outlined in Principle 2 of the Code. Bill C-6, by contrast, fails to consider these other features that make health information a special case. In consequence its provisions are not adquately tailored to the special nature of health information and do not accord it the strong privacy protection it warrants. V. Conclusions The increased capacity to collect, store, transfer, merge and access information, coupled with trends that support increased use of and access to information, have the potential to erode our traditional understanding and protection of privacy and confidentiality. The issues are complex and the choices we must make are difficult. Nevertheless, these issues should be squarely on the table and the choices that we make must be clear, transparent and defensible. Of paramount importance is that the public is not mislead into believing that their information is being protected or kept confidential when in fact it is not. Therefore, even to refer to Bill C-6 as the “Personal Information Protection and Electronic Documents Act” should be the subject of debate. Is the Bill truly about information protection or is it actually about permitting access to information? The approach to rules for information in Bill C-6 is directed toward commerce and appears to have access, and not privacy, as its dominant value, notwithstanding the Bill’s reference to a “right of privacy”. In CMA’s view, the Bill’s approach is inadequate when applied to health information. Based on the evidence, it seems highly likely that the public would also find Bill C-6 inadequate. Bill C-6 was not developed with health information in mind. In consequence there is confusion and uncertainty about its application to the health care context. Even more seriously, however, Bill C-6 fails to recognize that privacy with respect to health information requires stronger or greater protection than other types of information. CMA presents a different approach, an approach that recognizes the special nature of health information; an approach that puts patients first and values privacy and the preservation of the trust and integrity of the patient-physician relationship. This approach appears to be well-grounded in the values that Canadians hold about privacy and would likely enjoy broad public support. In addition, the CMA approach draws support from the Federal Advisory Council Report, which like CMA recognizes the importance of preserving patient privacy and the confidentiality of the health record in an era of increased use of technology. Implicitly, the Report recognizes that the benefits of such technology cannot be realized if public support, based on respect for privacy, cannot be secured. The CMA’s Health Information Privacy Code does what Bill C-6 fails to do. Amending Bill C-6 to incorporate the principles in the CMA Code would ensure adequate privacy protection. In light of the clear deficits in Bill C-6 and the inadequate protection of patient privacy and health information confidentiality, CMA urges this Committee to accept its recommendations and the amendment that incorporates them. Nothing less would give Canadians the high level of privacy protection they desire and deserve when it comes to their health information. VI. Summary of Recommendations That Bill C-6 be amended to incorporate specific provisions relating to health information and that the provisions of the CMA Health Information Privacy Code provide the basis of such provisions; and That any proposed rules for health legislation be subject to the legislative test found in CMA’s Health Information Privacy Code and formulated in light of this process; and That there be a clear definition of the information being accorded a right of privacy and that this definition, at least in the case of health information, include identifiable information, delinked information, anonymous information and any composite information produced when health information is linked to any other information about a person from any other source; and That, at least in connection with health information, the provisions of the Bill apply equally to the public and the private sectors. CMA has drafted an amendment to Bill C-6 (Appendix B) which, if accepted, would achieve all of these recommendations and adequately give Canadians the kind of privacy protection with respect to their health information that they deserve and desire.
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