Summary

The Collège des médecins du Québec (the CMQ) has made various changes to the Code of ethics of physicians1 (the Code) to address physicians independence and impartiality, issues related to new technologies, and respond to requests regarding the accessibility of medical records. Most of the amendments came into effect on January 7, 2015, while others will do so on July 7, 2015.

Extra-billing and financial benefits

Under the amendments, the Code will now deal with the issues of extra-billing and financial benefits in detail. Whereas, at the current time, section 73 of the Code prohibits physicians from “seeking or obtaining undue profit” when they prescribe examinations, medications and treatments,2 beginning on July 2, 2015, physicians will formally be prohibited from obtaining and even seeking such a benefit, either directly, indirectly or through an enterprise belonging to them.3

Also, although “professional fees” do not constitute a prohibited “financial benefit” within the meaning of the Code, physicians will not be allowed to “claim disproportionate amounts” for medications administered or services offered.4 In addition, they will have to provide their patients with an “itemized invoice” evidencing the claimed amounts. The determination of whether the price demanded is “reasonable” will be based on the cost price of the medications (or services offered) and the administrative expenses incurred by the physician.

The prohibition in section 73 will include an exception, however, so that physicians are not, in the CMQ’s words, deterred by this section from participating in research and development activities. Accordingly, section 73(2) of the Code will provide that a physician may make a profit from the sale or marketing of an apparatus or examination that the physician prescribes and has developed (or has contributed to developing), in which case the physician must inform his or her patients.

Moreover, any physician who controls or receives benefits from an enterprise offering therapeutic or diagnostic products (or services) in which the physician has interests must so inform the circles in which he or she promotes them.5

Finally, physicians will be expressly precluded from (i) selling apparatus or other products unless they administer them directly, (ii) using their title for commercial purposes, or (iii) being party to any agreement or accepting any benefit that could jeopardize their professional independence.6

Accessibility of care and patient’s freedom of choice

The Code as amended now stresses that “a patient [must be] given priority of access to medical care strictly on the basis of criteria founded on medical necessity.”7 Therefore, other factors, including financial criteria, may not be considered. As a result, accepting money for priority treatment or making access to services conditional on payment of a membership fee or annual contribution is formally prohibited.

Furthermore, a patient’s freedom of choice with respect to his or her attending physician is now entrenched in the Code in two additional ways. First, the Code borrows certain prohibitions from the Quebec Charter of human rights and freedoms8 and now expressly forbids any physician from refusing to examine or treat a patient “because of the race, colour, sex, pregnancy, civil status, age, religion, ethnic or national origin, or social conditions of the patient, or for reasons of sexual orientation, morality, political convictions, or language,” or “for reasons related to the nature of a deficiency or illness,” regardless of the context in which such medical condition appeared.9 Second, the Code now requires the physician to indicate to the patient, on request, the places where the patient can be treated and to issue a prescription to the patient for that purpose.10 A physician’s freedom to accept or refuse to treat a person, as set out in the Act respecting health services and social services11 (the AHSSS), is therefore tempered by these sections.12

Protection of medical information

To advance the protection of personal information, the obligations of physicians under the Code in the area of professional secrecy have been expanded and adapted in response to issues raised by the use of email, clouds and social media (including Facebook). For example, the Code now forbids indiscreet conversations on social media by requiring physicians to “refrain from holding or participating, including on social networks, in indiscreet conversations concerning a patient or the services rendered [sic] him or from revealing that a person has called upon his services” and “must take reasonable measures to preserve professional secrecy when the physician uses, or persons working with the physician use, information technologies.” Similarly, to prevent images from being exchanged recklessly over such media, physicians are required to include images and other collated information in the patient’s record.13

Access to and management of medical records

With respect, again, to the protection of personal information, the Code has been amended to bring certain provisions into line with the AHSSS, the Act respecting access to documents held by public bodies and the protection of personal information14  and other laws governing access. Accordingly, the Code now makes it clear that a physician may be required to disclose information concerning a patient without the patient’s consent in the case of an emergency. Such patients may, however, be informed of such communications, which are to be indicated in their record.15  Similarly, physicians now have only 20 calendar days from the time a patient requests access to his or her medical records to respond to the request.16

The Code also introduces measures to favour the communication of patient information to patients, including the stipulation that, when copies of documents are requested by a patient, the physician may not withhold them even if the patient has not paid the fee demanded.17

Conclusion

The Code as revised emphasizes physician transparency, integrity and professionalism and addresses, at least in part, several issues arising from changes in medical practice and evolving new technologies. However, these provisions are raising new questions among certain health sector participants, particularly those practising in private clinics. How the provisions are interpreted will have a dramatic impact on the way medical practice evolves in Quebec.