Reduce Your Practice Risks: Expert Legal Advise for PAS - PowerPoint Presentation

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Reduce Your Practice Risks: Expert Legal Advise for PAS

Presented by Jonah Arnold, lawyer

Weinman

, Arnold LLP

www.HealthLawFirm.ca

Tel: 416-640-0508

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Weinman, Arnold LLP

Weinman, Arnold LLP

Who we are:Boutique law firm with a focus on health professionalsSenior lawyer is former dental hygienistManaging lawyer is former kinesiologistClients are all regulated and non-regulated health professionals and some patients tooProvide help with administrative law procedures, i.e. College investigations, complaints, discipline, etc.Provide help with all manner of litigationProvide help with business and ancillary matters such as employment matters

HealthLawFirm.ca

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My Goals Today

Cover a variety of relevant topicsHave you think about important issues you might have avoidedCause you to question aspects of your practiceShow you were or how to find the answers to those questionsHelp reduce risks associated with professional practiceAnswer specific questions you may haveRemember Canadian track glory daysHave some fun

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Maintaining a Professional Practice

We have to get on the same page to discuss this issue!

What do we mean by professional practice?

What is meant by self-regulating profession?

Are requirements to practice the same across Canada? How does that impact your practice?

How is decision making impacted in light of the official requirements?

How will you justify your decision making in light of legal requirements? Ethical requirements? Personal beliefs? Patient needs?

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Professional Practice

A term that applies to all professionals. The conduct and work of a professional rendered within the framework of recognized professional ethics, standards, and applicable legal requirements. It includes:Laws, regulations and policiesScope of PracticeProfessional standards of practiceProfessional obligations & responsibilitiesProfessional and personal rightsProvision of safe, ethical quality care

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Self-Regulating Professions

See: https://capa-acam.ca/pa-employers/legislation/Requirements differ province to provinceThis impacts your legal obligations… somewhatThis does not impact your obligations to patients or to the profession

Professionals are involved in determining the rules that govern the profession (ex. being involved as Council members)Professionals are accountable for their own behaviour (ex. they are accountable to self-regulation) with a regulatory College providing assistance and oversight.A regulatory College is mandated to reduce the risk of harm to members of the public versusA professional association puts the professionals’ interests first.However CAPA, as federal association, has a larger role than typical. i.e. CanMEDS-PA (quasi regulatory function), plus member advocacy

Entry to Practice/Practice Requirements across Canada

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Standards of Practice

CanMEDS-PA a set of MINIMUM competency standards for entry to practiceContains a Scope of Practice Statement a guide for the Canadian national certification exam a resource for continuing professional development See: https://capa-acam.ca/wp-content/uploads/2015/11/CanMEDS-PA.pdf

Derive from laws, written texts, norms, policies, best practices and expectation of the profession and members of the public, associated professionals, delegation, directives, and agreements with physician.

Yikes!

Evolve over time

Differ from jurisdiction to jurisdiction

Courts will determine standards of practice only with the assistance of an expert in the field.

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Ethics

I believe adults cannot be taught ethical decision-making (it’s too late!)Why then teach ethics?Involves systematizing, defending, and recommending concepts of right and wrong conductEthics are a systems to explain (or justify) decision-makingi.e. ends justifies means, do no wrong at any cost, greater good, moral cost, costs of decisions, etc.CAPA’s code of ethics more closely resembles a list of relevant rules and best practicesSee: https://capa-acam.ca/about-pas/code-of-ethics-of-the-physician-assistant-profession/

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Conflicts of Interest

CAPA Code of Ethics: Recognize and disclose conflicts of interest that arise in the course of your professional duties and activities, and resolve them in the best interest of patients. (CAPA code of ethics, #11)Generally, early, full disclosure can dissolve a conflict of interestConflicts of interest need not be actual, but merely perceived conflicts.Record keeping, record keeping, record keeping!

Many definitions but I use:

A situation

in which a person

is

involved in multiple interests, financial or otherwise, one of which could possibly corrupt the motivation or decision-making of that individual or

organization.

A conflict of interest prevents

or

can be reasonably

regarded as having the effect of preventing the

PA from

properly exercising his or her professional judgment and skill in respect of the treatment or referral of a patient;

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Conflicts of Interest – Employer/Employee Struggle

Your supervising physician asks you to do something:Not in best interest of patient and you know itOutside your scope of practice and you know itSomething for which you lack the skill, judgment, experienceFor which the physician stands to personally gain, at the expense of the patientForbidden for some other reason, but if you refuse your job will be on the line.

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Decision Making

Now that we have some common ground:

How do

you

make legal, ethically sound decisions that are in your patients’ best interest?

Consider your legal obligations (laws,

regs

, standards of practice)

Consider your scope of practice

Know your limits (of knowledge, skill, experience)

Refuse to perform an act if you lack knowledge, skill, experience

Understand a conflict of interest

Identify when you may be in a conflict

Avoid conflicts of interest if possible

Determine the best manner to deal with the conflict

Communicate your conflict

Do not act while in a conflict (unless it’s an emergency)

Extricate yourself from the conflict

Record keep, record keep, record keep

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Informed Consent

We could spend two whole days talking about informed consent.

It is complex, it is difficult to obtain, requirements should be periodically reviewed and put to practice.

See: “Informed Consent in 2001: A Complex Legal and Ethical Issue Viewed in the Current Legal Climate” by the

Honourable

Justice

Eleanore

Cronk

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What is Informed Consent

1. Informed consent is a process;2. “Informed” includes all material information, not just material risks;3. Understanding and appreciation; 4. Encourage questions;

5. Delegation;

6. Consent forms:

7. Lists of risks and side effects

;

8. Detailed charting and

documentation;

9. Standardized practice

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Other Issues re: Informed Consent

INFORMED CONSENT IS PATIENT-CENTRICCAPACITY TO CONSENTAge, mental capacity;Language & cultural considerations.WHO PROVIDES THE INFORMATION?

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Navigating Competing Interests

We

ha

ve

seen this before: Conflicts of Interest.

Let’s delve into a PA specific concern…

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Delegation: acceptance/refusal of work

In certain jurisdictions, controlled acts may be delegated by physicians to others.See: http://www.cpso.on.ca/policies-publications/policy/delegation-of-controlled-acts#2

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Principles (in Ontario)

In

accordance with

The Practice Guide

, the professional expectations in this policy are based on the following prin­ciples:

In every instance of delegation, the primary considera­tion must be the best interests of the patient.

An act undertaken through delegation must be as safe and effective as if it had been performed by the delegat­ing physician.

Responsibility for a delegated controlled act always remains with the delegating physician.

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Delegation & Consent

The physician must confirm that patients provide informed consent for the performance of controlled acts, whether consent is obtained by the physician him or her­self or by the delegate.

This will include providing the patient with appropriate information about the person who will be performing the controlled act (i.e., the dele­gate). If the patient requests information about how the delegate has obtained authorization to perform the con­trolled act, an explanation must be provided to the patient. In circumstances where the delegation takes place pursuant to a medical directive, the protocol for the direc­tive must include obtaining the appropriate patient con­sent.

The

patient’s consent must be documented in the medical record

.

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Delegation: Refusing an Order

Can a PA refuse an Order by the physician? If so, under what circumstances? What factors should a PA consider when thinking of refusing an Order?Scope of practice? Other factors?Upon refusing an Order, what should the PA do?Document?

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Agreements/Contracts

Agreements are central to any professional and work environment.

Interestingly, agreements involving PAs are intertwined with the PAs scope of practice

PAs are medically educated clinicians who practice medicine within a formalized agreement with physician(s). The Scope of Practice is defined by the formalized agreement with the Physician(s) and their qualifications, experience and knowledge to delegate to the PA and the laws of the jurisdiction of practice.

CAPA:

CanMEDS

-

PA, page 3

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Agreements/Contract

It is essential to negotiate and finalize the employment contract before beginning work.

Determine PA specific issues:

Who will be the supervising physician(s)

From whom exactly with the Order(s) come

Will you work under a directive(s)

What will be the PAs activities

To whom will the PA report

Are they an employee of the physician, facility, etc.?

Support and resources available to PA at place of employment

Workplace time management, expectations, i.e. time given for record keeping

vs

patient care and workload

Who will conduct PA performance review

Who will consider expanded duties/role of the PA

What are the requirements re continuing education

Don’t forget to review

CanMEDS

-PA for guidelines…

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Agreements/Contracts

Determine general employment issues:Employee vs contractorRate/calculation of pay, manner of pay, frequency of payBenefits, if anyRegular hours of workScheduling, seniority and hoursVacation, sick days, etc.Start dateLocation of workConfidentiality clausesRestrictive covenants / non-complete clausesTerms re termination, notice, etc.Other clauses?

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Agreements/Contracts

Should you have a lawyer review the contract?

What if I’m already working and there is no written contract or it is inadequate, or my employer now wants me to enter a ‘new’ contract?

Constructive dismissal?

Rehire/new hire?

Union work environments

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Limiting Professional & Personal Liability

Keep current, i.e. continuing education, upgrading, etc.

Attend seminars like these!

Stay within your scope of practice

Understand and maintain the standard of practice

Maintain proper record keeping

Identify and communicate conflicts of interest

Purchase and maintain proper insurance coverage

Professional E & O for negligence

Investigations, complaints and disciplinary legal fee coverage

Business interruption coverage

Occupiers liability

a.k.a

slip and fall coverage

Others?

Are you sure your employer’s insurance will cover you in every instance?

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Legal Advice

My best advise is to consult with a competent lawyer in your jurisdiction regarding relevant issues before they festerWhen in doubt, early lawyer involvement can lead to early resolution and the protection of your rights.