Are you thinking about launching a virtual care or telemedicine business in Canada this year? This bulletin provides an overview of recent regulatory requirements for physicians to consider.

Like other jurisdictions, Canadian provinces have had to adapt the provision of healthcare to current realities and innovations in technology. In response to the impact of the COVID-19 pandemic, the majority of the health regulatory colleges governing regulated health professionals in Canada ("Colleges"), had to adapt their policies so that patients in their jurisdiction could continue to safely access virtual healthcare. Today, telemedicine – or "virtual care" as it is more commonly referred to in the context of the provision of medical services occurring remotely – is part of the fabric of Canada's public healthcare system and presents new opportunities for businesses offering innovative solutions to care gaps.

While there are many issues to consider with respect to providing telemedicine or virtual care overall, this bulletin will highlight some of the more recent requirements imposed by the provincial Colleges regulating physicians in respect of the provision of telemedicine in Québec, Ontario, Alberta, and British Columbia (the "Physician Colleges"), as well as some particularities related to the standards of care when providing virtual care.

Scope

The scope of this bulletin is limited to the provision of medical services (i.e., physician services) by telemedicine/virtual care. Notably, while there is a certain degree of uniformity among the policies of the Physician Colleges with respect to the provision of telemedicine/virtual care, they are also inconsistent in some respects – including, for example, in the term that they use to refer to the provision of medical services by remote means (i.e., "telemedicine" versus "virtual care") and how the foregoing term is defined (and as such, the scope of activities to which their respective policies of apply).

  1. Registration Requirements for Out-of-Province Physicians Quebec : The Collège des Médecins du Québec ("CMQ") being the Physician College in Québec, in Télémédecine – Fiche 14, Téléavis : quelles sont les obligations du médecin qui fournit un avis? ((Tele-advice: what are the doctor's obligations when providing advice? available in French only), takes the position that an out-of-province physician must obtain a licence that is valid in Quebec to provide virtual care to patients residing in Quebec. Note that in Quebec, there is an added requirement that the physician pass a French language exam. The steps for an application are detailed on the CMQ site: Documents required and other conditions | Collège des médecins du Québec (cmq.org) and Permit to practice – Medical graduate Quebec, Canada, United States. Ontario: The College of Physicians and Surgeons of Ontario ("CPSO") states in its Virtual Care Policy that physicians providing virtual care to Ontario patients must hold a valid and active certificate of registration with the CPSO. This is the case unless the provision of virtual care from a physician licensed elsewhere is in the patient's best interest, for example, where the care sought is:
    1. not readily available in Ontario (e.g., specialty care not available in Ontario);
    2. provided within an existing physician-patient relationship and intended to bridge a gap in care (e.g., a physician who is the health care provider to a patient who has recently moved to Ontario and does not yet have a replacement health care provider); or
    3. for urgent or emergency assessment or treatment of a patient.

    Moreover, through its Virtual Care Policy, the CPSO asserts its right to: (i) take action against physicians who are providing virtual care to Ontario patients under one of the above exceptions if they are not meeting the standard of practice; and (ii) share that information with the regulatory authority that has jurisdiction over the physician.

    We note that the CPSO has provided three alternative pathways for physicians trained the U.S. to gain licensure outside of its regular registration requirements. In particular, Pathway A is for physicians who are certified by a US Specialty Board. Please contact us for further details regarding the requirements applicable under each pathway and the applicable application process.

    Alberta: Pursuant to the College of Physicians and Surgeons of Alberta's ("CPSA") Virtual Care Standard of Practice, an out-of-province physician providing virtual care to patients located in Alberta must be registered with the CPSA in the Telemedicine Register. However, an out-of-province physician who does not hold a valid and active practice permit with the CPSA may provide virtual care to a patient located in Alberta in the following circumstances:

    1. if the care sought is not readily available in Alberta (e.g., specialty care not readily available in Alberta);
    2. to provide follow-up care or continuity of care for which an established physician-patient relationship exists; or
    3. if the virtual care encounter is for emergency assessment or treatment of the patient where there are no other care options available.

    British Columbia: In contrast to the requirements of the other Colleges addressed by this bulletin, the College of Physicians and Surgeons of British Columbia ("CPSBC") does not require local licensing in order for a physician to provide telemedicine services to a patient located in the province. Rather, the CPSBC only requires that foreign physicians hold a license in the jurisdiction in which they are located in order to provide telemedicine services to BC patients. We note that while the Virtual Care Practice Standard was recently updated, the College's position as to licensure did not change.

  2. Other Considerations of Telemedicine Each of the Physician Colleges expressly provide in their virtual care policies that all professional obligations and standards of care that are applicable to in-person medical care extend to virtual care. When providing healthcare virtually, the Physician College's respective policies highlight important considerations to keep in mind, including, but not limited to, for example:
    • Is virtual care appropriate in this context? Is the nature of the patient's condition best served by an in-person assessment?
    • Can a timely, in-person, assessment be arranged when required if circumstances change? In BC, Alberta and Quebec this requires that the out-of-province physician have a formal affiliation with a local in-person clinic.
    • Does the telemedicine platform protect patient privacy and preserve confidentiality?
    • Will the physician be able to comply with French language requirements in Quebec?

    Importantly, the standards of care of the Physician Colleges that are associated with prescribing drugs also extend in the context of virtual care. Notably these standards require that a physician should only prescribe in the context of an established physician-patient relationship, requiring, at a minimum, that the physician:

    • disclose their identity, location, contact information and licensure status to the patient; and
    • perform an "appropriate assessment" in light of patient's condition, which includes, but is not limited to, taking a patient history, visual inspection (if applicable) and performing/ordering any necessary diagnostic tests, investigations or procedures that are required to help establish a diagnosis and/or guide management.

    There are likewise restrictions on the prescription of certain controlled drugs via telemedicine, e.g., opioids, psychotropic medications, cannabis, etc.

    The significant prohibitions that exist in Canada against billing patients for insured services (i.e., services that are insured by a provincial health insurance plan) also apply in the context of virtual care. Regardless of how the care is provided (i.e., in person or virtually), generally speaking (subject to limited exceptions) physicians are prohibited from charging or receiving payment from patients (including, through a third persons, such as a benefits provider) for a service that is deemed to be an insured service. Various factors affect whether or not a medical services is an insured service, including more general factors – e.g., the age of the patient, and factors more specific to the delivery of medical services using virtual care – e.g., whether the physician and the patient are both located in the province at the time the service is rendered. If you have questions about the circumstances in which virtual care services are insured services, please contact us.

    Finally, certain jurisdictions in Canada require physicians to provide patients with the option of in-person care (versus virtual care). Such a requirement would therefore prohibit a physician from only offering virtual care services to patients in that jurisdiction.

  3. What Does this Mean for Physicians? Given the continued need for accessible, timely and innovative health care services, it is clear that telemedicine will continue to play a significant role in the provision of medical care. While this bulletin focused on some of the across border requirements for telemedicine services, it is important to note that there are many other considerations that physicians must be aware of and familiar with when providing telemedicine services to residents in Canada, including privacy and information security issues. Physicians providing telemedicine services across borders will need to be aware of the registration and regulatory requirements in the jurisdiction in which they are registered to practise medicine (e.g., do the laws of their home jurisdiction prohibit them from providing medical care to patients in other jurisdictions?), and the telemedicine registration and regulatory requirements of the jurisdictions into which they provide such. Finally, physicians are encouraged to confirm that their professional insurance extends to the treatment of patients in jurisdictions other than the physician's "home" jurisdiction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.