Legal and Liability Considerations

DISCLAIMER –The information in this section is for general educational purposes. It is not intended to provide legal advice. Physicians should seek legal and/or professional advice to discuss individual situations and contact CMPA directly with any questions.

The Conference Board of Canada reports that despite the many benefits of collaborative care models, medico-legal concerns are frequently cited as a potential barrier to physicians engaging in collaborative practices. Some of the concerns commonly expressed include the possibility of increased exposure to liability risk and fears of being held accountable for the negligent acts of other health care professionals. (2)

While the Canadian Medical Protection Association agrees that well functioning teams have the potential to improve patient outcomes and deliver superior care, it is essential to address potential concerns about liability and accountability while ensuring risks to patients are mitigated for these goals to be achieved. (3)

Each collaborative team is different. Physicians should take the time to evaluate their individual medico-legal risks unique to their team, including the potential risks of direct liability, joint and several liability and vicarious liability.

The Canadian Medical Protection Association (CMPA) recommends the following steps for health care providers to help mitigate risks when working collaboratively:

1 Health professionals should clearly understand the scope of practice of those with whom they work.

2 Where scopes of practice within a team overlap, there should be well-documented delineation of responsibilities.

3 The overall responsibility for health-care decisions should be clearly specified and understood by all.

4 Effective and efficient communications within the team, with the patient and across teams will take on added importance; this should be supported by clear documentation.

5 Each professional in the team has a responsibility to the other members to obtain adequate medical liability protection. For professionals taking on expanded responsibilities, this will likely entail greater protection than is currently the case.

6 Each member of the team should also confirm the others have the adequate liability protection.

Source: CMPA - Collaborative care: A medical liability perspective (cmpa-acpm.ca) (3)

Strategies to reduce the risks associated with collaborative care models

It is essential that each health professional carry adequate liability protection. Each member of the team should also verify that other health-care professionals in the team have and maintain adequate liability protection. Physicians acting as the employer should ensure they have appropriate and adequate levels of malpractice liability insurance to cover the organization and its employees (e.g., direct liability, vicarious liability).

If a physician is acting as the employer for other health care providers, they should also explore whether there is a need for them to acquire commercial general liability insurance to protect their business operations.

Physicians maintain liability coverage through the Canadian Medical Protective Association. Physicians should verify that coverage is adequate for individual/practice needs by contacting CMPA – Home (cmpa-acpm.ca).

Each member of the team should understand their individual responsibilities and role within the collaborative team and act according to the scope of practice/standards of their professions. Furthermore, team members need to establish clear processes to guide interdisciplinary care including coordination of care, decision-making, and patient management within the team approach.

CMPA and Canadian Nurse Protective Society (CNPS) have released the CMPA/CNPS JOINT STATEMENT ON LIABILITY PROTECTION FOR NURSE PRACTITIONERS AND PHYSICIANS IN COLLABORATIVE PRACTICE (cmpa-acpm.ca). The statement addresses questions from physicians and NPs working in collaborative practices, describes positive approaches to mitigating risks, and includes a discussion about the various types of liability associated with collaborative practices.

Registered Nurses maintain professional liability protection as part of their NANB registration fees – nurses should verify that coverage is adequate by contacting Canadian Nurses Protective Society (CNPS®) Home – Canadian Nurses Protective Society (cnps.ca).

Licensed practical nurses should verify that coverage is adequate by contacting Practice Resources – Association of New Brunswick Licensed Practical Nurses (anblpn.ca) LPN-Insurance-Programs_2020_Lloyd-Sadd.pdf (anblpn.ca).

Stay informed. The CMPA has developed resources to inform physicians about liability implications in collaborative care. For further reading, please see the following documents available on the CMPA website.

CMPA – Collaborative care: A medical liability perspective (cmpa-acpm.ca)

CMPA – Medico-legal handbook for physicians in Canada (cmpa-acpm.ca)

*Adapted and sourced from: CMPA – Collaborative care: A medical liability perspective (cmpa-acpm.ca) ; CFC (2007) 091-07 Liability Risks in Interdisciplinary Care: Thinking Outside the Box (hhr-rhs.ca)

Why establishing the working relationship is important for you?

Nurses can be either employees or independent contractors (self-employed). Generally, nurses in family practice are hired as employees, however the Canadian Nurses Protective Society observes that as the health care system evolves, more nurses may choose to become independent contractors. (4)

There are important distinctions and legal implications for your practice based on whether an employer/employee relationship exists; take the time to understand the risks and benefits between the different types of working relationships.

Physicians should be aware of the potential liability risks associated with the employer/employee relationship and take steps to ensure that liability protection coverage is adequate.

For example: employers may be financially responsible in law for certain wrongs the employees may commit within the scope of their employment because of the court’s application of the legal principle of vicarious liability. (4)

The NB Employment standards Act applies to all employees, regardless of whether they work on a full time, part time, or temporary basis.

For more information about minimum requirements for employers and basic employment rights, refer to the NB Employment Standards Act: GeneralInformation.pdf (gnb.ca).

Health-care professionals who practise collaboratively in health-care settings can minimize potential legal liability through appropriate risk management strategies. (3)

There is no “one size fits all” when it comes to establishing a collaborative care team. Physicians considering participation in an interdisciplinary model need to reflect on the legal issues unique to their situation. (2)

Physicians should seek appropriate professional advice to discuss legal obligations, risk profiles, and required levels of liability protection unique to their practice structure.

References

World Health Organization (2010). Framework for Action on Interprofessional Education & Collaborative Practice. (2010). Accessed: Framework for Action on Interprofessional Education & Collaborative Practice (who.int)
The Conference Board of Canada (2007). Liability Risks in Interdisciplinary Care: Thinking Outside the Box. Accessed: 091-07 Liability Risks in Interdisciplinary Care: Thinking Outside the Box (hhr-rhs.ca)
Canadian Medical Protection Agency. Collaborative Care: A Medical liability perspective Accessed: CMPA – Collaborative care: A medical liability perspective (cmpa-acpm.ca)
Canadian Nurses Protective Society. Collaborative Practice: Are nurses employees or self-employed? Available CNPS website (2021). Accessed: Collaborative Practice: Are nurses employees or self-employed? – Canadian Nurses Protective Society (cnps.ca)
Canadian Nurses Protective Society (2017). Ask a lawyer: Electronic Medical Records and Independent Practice. Accessed: https://cnps.ca/article/ask-a-lawyer-electronic-medical-records-and-independent-practice/
Registered Nurses of Ontario. website primarycaretoolkit.ca Accessed: 2021/11/24
CMPA/CNPS JOINT STATEMENT ON LIABILITY PROTECTION FOR NURSE PRACTITIONERS AND PHYSICIANS IN COLLABORATIVE PRACTICE (cmpa-acpm.ca) (revised 2017)
Canadian Medical Protection Agency (2021). Medico-Legal handbook for physicians (2021). Accessed: CMPA – Medico-legal handbook for physicians in Canada (cmpa-acpm.ca)

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1	Health professionals should clearly understand the scope of practice of those with whom they work.
2	Where scopes of practice within a team overlap, there should be well-documented delineation of responsibilities.
3	The overall responsibility for health-care decisions should be clearly specified and understood by all.
4	Effective and efficient communications within the team, with the patient and across teams will take on added importance; this should be supported by clear documentation.
5	Each professional in the team has a responsibility to the other members to obtain adequate medical liability protection. For professionals taking on expanded responsibilities, this will likely entail greater protection than is currently the case.
6	Each member of the team should also confirm the others have the adequate liability protection.
Source: CMPA - Collaborative care: A medical liability perspective (cmpa-acpm.ca) (3)