By-Law 5: Code of Ethics

Interpretation

1.       Headings in the body of the By-Law do not form part of the By-Law and are inserted for convenience of reference only.

2.       For the purposes of this By-Law,

(a) “Act” means the Medical Act, 2005 [repealed and replaced by the Medical Act, 2011, effective May 31, 2011];

(b) “By-Laws” means by-laws made under section 12 of the Act [section 15 of the Act, effective May 31, 2011];

(c) “College” means College of Physicians and Surgeons of Newfoundland and Labrador;

(d) “guideline” means a statement by the College of best practices and recommendations in relation to a particular issue, which may have variable applicability on a case-by-case basis, depending on individual patient circumstances, local resources and the professional judgment of the medical practitioner, and includes College advisories;

(e) “medical practitioner” shall be deemed to include “medical practitioner” and “professional medical corporation” as defined under the Act, and a person registered on the Educational Register, mutatis mutandis;

(f) “patient” or “person” shall be deemed to include the authorized representative of that patient or person;

(g) “policy” means a statement of the College’s position on the expected practice or expected conduct of a medical practitioner in relation to a particular issue;

(h) “qualified health professional” means a practitioner, other than a medical practitioner, licensed to practice and in good standing with any regulated health profession governed by statute in the Province of Newfoundland and Labrador and who practices within the scope of practice defined under such statute;

(i) “Regulations” means regulations having effect under the Act;

(j) “standards of practice” means principles of patient care and management that are generally accepted and recognized by the medical profession in Canada, or that are expressed in a College statement of standards of practice, and that in the case of a College statement of standards of practice may be departed from or modified by a medical practitioner only if ALL of the following conditions are met:

(i) the departure or modification is an exceptional circumstance and does not represent the norm for patient management by the medical practitioner;

(ii) the departure or modification is limited, in extent and duration, to the minimum necessary to respond to the exceptional circumstance;

(iii) the departure or modification, and the reasons for it, are documented in the patient’s chart; and

(iv) the medical practitioner has complied with any other conditions for departing from the standard set out in the applicable College statement of the standards of practice;

(k) all references to “guidelines”, “policy” and “standards of practice” includes the statement of a particular guideline, policy or standards of practice as may be made, updated or amended by the College from time to time;

(l) all guidelines, policies and standards of practice, as defined by this By-Law, shall be deemed to be incorporated by reference into, and to form part of, this By-Law.

Canadian Medical Association Code of Ethics

3.       The Council of the College may adopt, on an annual basis, the Canadian Medical Association Code of Ethics, as it may be amended from time to time (hereinafter referred to as the “CMA Code”), as a compilation of guidelines providing a common ethical framework for medical practitioners, provided that where a provision of the CMA Code, as adopted, is or may be inconsistent with any provision of the Act, Regulations or the By-Laws of the College then the latter shall apply in the stead of such provision of the CMA Code.

Professional Misconduct

4.       Professional misconduct for the purposes of sections 34 to 51 of the Act [sections 39 to 56 of the Act, effective May 31, 2011] shall include:

Professional Misconduct: Laws, regulations, by-laws, and conditions applicable to practice

(a) Contravening the Act, Regulations, or By-Laws.

(b) Contravening a federal, provincial or territorial law, a municipal by-law or a by-law or rule of a public hospital if,

(i) the purpose of the law, by-law or rule is to protect health of the public, and

(ii) the contravention is relevant to the medical practitioner's suitability to practice.

(c) Being subjected to the withdrawal or restriction of rights or privileges under the Controlled Drugs and Substances Act (Canada) or the Food and Drugs Act (Canada), or under any successor legislation.

(d) Contravening or failing to comply with a term, condition or limitation on a licence or registration with the College.

(e) Contravening or failing to comply with any term or condition of an order made by an adjudication tribunal under section 43(2) or 44 (3) of the Act. [section 48(2) or 49(3) of the Act, effective May 31, 2011]

Professional Misconduct: Practising while impaired or when found to be incapable or unfit to practice

(f) Practising the profession while the medical practitioner’s ability is impaired by drugs or alcohol.

(g) Practising the profession during the period after the medical practitioner is notified by the College that he or she has been found to be incapable or unfit to practice, and before the medical practitioner is notified by the College that he or she may resume practice.

Professional Misconduct: Standards of Practice

(h) Failing to apply and maintain standards of practice expected by the profession in the branches or areas of medicine in which a medical practitioner is practising, such as to indicate gross negligence or reckless disregard for the health and well-being of a patient. The failure to apply and maintain the principles of patient care and management expressed in a College statement of standards of practice shall be presumed to be professional misconduct, unless the departure or modification was made in accordance with the conditions referred to in paragraph 2(j) of this By-Law.

Professional Misconduct: Prescribing

(i) Prescribing, dispensing or selling drugs for an improper purpose.

(j) Prescribing, dispensing, or selling drugs contrary to the Act, Regulations or By-Laws.

(k) Prescribing to a patient without establishing an appropriate doctor-patient relationship.

(l) Prescribing to a patient contrary to a standard of practice, policy or guideline of the College or a guideline or standard of practice generally accepted by the profession, and including but not limited to those outlined in Schedule “A” to this By-Law, unless

(i) in the case of departure from any standard of practice, policy or guideline it can be demonstrated by the medical practitioner that there was a reasonable basis for that departure; and

(ii) additionally, in the case of departure from or modification of a standard of practice expressed in a statement of the College, the departure or modification was made in accordance with the conditions referred to in paragraph 2(j) of this By-Law.

Professional Misconduct: Responsibilities to Patients

(m) Discontinuing professional services that are needed by a patient unless,

(i) the patient requests the discontinuation,

(ii) alternative professional services are arranged for the patient, or

(iii) the patient is given a reasonable opportunity to arrange alternative professional services.

(n) Discontinuing the practice of medicine in the Province, or in a specific locality in the Province, without reasonable notice to patients and to the College, and without making adequate provision for storage or transfer of medical records to ensure reasonable patient access.

(o) Performing without consent a professional service for which consent is required by law.

(p) Giving information concerning the condition of a patient or any services rendered to a patient to a person other than the patient, except with the consent of the patient or as required by law or permitted by law.

Professional Misconduct: Responsibilities to the Profession

(q) Failing to reveal the exact nature of a secret remedy or treatment used by the medical practitioner following a proper request to do so.

Professional Misconduct: Responsibilities to the College

(r) Failing to respond appropriately or within a reasonable time to a written inquiry from the College.

(s) Contravening or failing to comply with a term or condition of an undertaking to or agreement with the College.

Professional Misconduct: Misrepresentations

(t) Making a misrepresentation to the College or to a representative or agent of the College.

(u) Using a name other than the medical practitioner's name, or variation thereof accepted by the College, as set out in the applicable register under the Act, in the course of providing or offering professional services.

(v) Making a misrepresentation respecting a remedy, treatment or device.

(w) Making a claim respecting the utility of a remedy, treatment, device or procedure other than a claim which can be supported as reasonable professional opinion.

Professional Misconduct: Records and Documents

(x) Falsifying a record relating to the medical practitioner's practice.

(y) Creating or altering a record relating to the medical practitioner’s practice other than in the manner prescribed by these By-Laws.

(z) Failing without reasonable cause to prepare a report or certificate relating to an examination or treatment performed by the medical practitioner to the patient or the patient’s authorized representative within 42 days after the patient or the patient’s authorized representative has requested such a report or certificate.

(aa) Signing or issuing, in the medical practitioner’s professional capacity, a document that the medical practitioner knows or ought to know is false or misleading.

(bb) Failing to make or maintain a record in accordance with any by-law of the College.

Professional Misconduct: Fees

(cc) Sharing fees with a person who has referred a patient or receiving fees from any person to whom a medical practitioner has referred a patient, or requesting or accepting a rebate or commission for the referral of a patient.

(dd) Refusing to provide medical care, if urgently needed and to the extent clinically required to address the urgent need, for the reason that the collection of fees for the service is uncertain or not possible.

(ee) Charging a fee for services not performed.

(ff) Charging a fee that is excessive in relation to the services performed.

(gg) Charging a fee for a non-insured service without reasonable notice to the patient.

(hh) Charging a fee for an undertaking not to charge for a service or class of services.

(ii) Charging a fee for an undertaking to be available to provide services to a patient.

(jj) Failing to itemize an account for services

(i) if requested to do so by the patient or the person or agency who is to pay, in whole or in part, for the services, or

(ii) if the account includes a commercial laboratory fee.

(kk) Failing to issue a statement or receipt for fee for services to a patient or the person or agency who is to pay, in whole or in part, for the services if requested by a patient, person or agency.

Professional Misconduct: Boundary Violations, Impropriety, Abuse, or Sexual Misconduct in relation to a Patient

(ll) Entering into financial or legal obligations for or on behalf of a patient other than obligations related to the professional services provided by a medical practitioner.

(mm) Accepting from, or giving to, a patient any gift or benefit of a substantial nature, whether monetary or in the form of property with significant commercial value.

(nn) Influencing a patient to make or change his or her will or other testamentary instrument, or a trust instrument, or to make another type of gift, in favour of a medical practitioner.

(oo) Inappropriate comments or questions reflecting a lack of respect for patient’s dignity or privacy.

(pp) Inappropriate examination procedures reflecting a lack of respect for patient’s dignity or privacy.

(qq) Examination of a patient’s genital area, anal area or breasts without the patient’s consent.

(rr) Examination or touching of a patient’s genital area, anal area or breasts without legitimate medical reason.

(ss) Massage or other sustained touching of a patient without legitimate medical reason.

(tt) Verbal abuse of a patient or of a patient’s family, including but not limited to physically intimidating or threatening language, and sustained use of insulting or demeaning language.

(uu) Physical abuse of a patient.

(v v) The systematic or sustained perpetration of malicious and explicit acts against a patient, including but not limited to acts which threaten the physical or mental health of the patient or which encourage the person to engage in criminal or destructive behaviour.

(ww) Sexual abuse of a patient, including but not limited to

(i) engaging in sexual intercourse or other sexual activity or sexual touching with a patient, or the attempt to engage in such activity;

(ii) engaging in sexual activity in the presence of a patient;

(iii) the invitation to or encouragement of a patient to engage in any sexual activity in the presence of the medical practitioner, or the continuation of a treatment session with a patient where the patient engages in such activity;

(iv) the invitation to or encouragement of a patient to engage in any sexual activity to be recorded by or for the medical practitioner for the personal use of the medical practitioner or of others, or the acceptance of such recorded material;

whether or not with the patient’s purported consent.

(xx) Exploitation, or attempted exploitation, of a patient or of a former patient.

Professional Misconduct: General

(yy) Permitting, counselling or assisting a person who is not a medical practitioner licensed by the College to perform acts which should only be performed by a medical practitioner.

(zz) Pledging, mortgaging or in any other way encumbering or granting security in the medical practitioner’s interest in a medical record required to be kept under the Act, the Regulations or By-Laws.

(aaa) Selling or assigning any debt owed to the medical practitioner for professional services, but a medical practitioner may accept a credit card to pay for professional services and may make a general assignment of debts as collateral for a loan to finance his or her medical practice.

(bbb) Subject to subsection 33(2) of the Act, [section 38(2) of the Act, effective May 31, 2011] permitting or acquiescing in any act or omission of a professional medical corporation which would be considered professional misconduct if such act or omission were committed by a medical practitioner, while a shareholder, director, officer or employee of that corporation.

(ccc) An act or omission made in the course of the practice of medicine that, having regard to all the circumstances, is contrary to a standard or expectation of professional conduct generally recognized by the medical profession or generally recognized within the applicable medical specialty or branch of medicine, and which is harmful or potentially harmful to a patient, to the public interest or to the medical profession.

Conduct unbecoming a medical practitioner

5.      The following are acts of conduct unbecoming a medical practitioner for the purposes of sections 34 to 51 of the Act [sections 39 to 56 of the Act, effective May 31, 2011]:

(a) An act or omission that, having regard to all the circumstances, would reasonably be regarded by medical practitioners as disgraceful, dishonourable or harmful to the standing or reputation of the medical profession.

(b) Subject to subsection 33(2) of the Act [section 38(2) of the Act, effective May 31, 2011], permitting or acquiescing in any act or omission of a professional medical corporation which would be considered conduct unbecoming a medical practitioner if such act or omission were committed by a medical practitioner, while a shareholder, director, officer or employee of that corporation.

(c) Conviction of a criminal act that would reasonably be regarded by medical practitioners as disgraceful, dishonourable, or harmful to the standing or reputation of the medical profession.

(d) Persistent or egregious conduct towards professional colleagues which is contrary to the CMA Code.

(e) Engaging in any of the activities referred to in paragraphs 4. (uu), (vv), (ww) or (xx) with a minor, or other vulnerable person, whose care or supervision has been entrusted to a medical practitioner by virtue of the fact that he or she is a medical practitioner, whether or not the minor or other vulnerable person would be considered to be a patient of the medical practitioner.

Professional incompetence

6.       Professional incompetence for the purposes of sections 34 to 51 of the Act [sections 39 to 56 of the Act, effective May 31, 2011] means the demonstration by a medical practitioner’s care of one or more patients that he or she lacks skill or judgment, of a nature or to an extent that the medical practitioner is unfit to continue to practice, or that his or her practice should be restricted, or that the medical practitioner should comply with one or more of the remedial measures which may be ordered pursuant to subsection 48(2) or 49(3) of the Act.

Incapacity or unfitness to engage in the practice of medicine

7.       Incapacity or unfitness to practice for the purposes of sections 34 to 51 of the Act [sections 39 to 56 of the Act, effective May 31, 2011] means a medical practitioner’s suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the medical practitioner no longer be permitted to practice or that his or her practice should be restricted.

Document History

 

Approved by Council

 

Reviewed & Updated

December 10, 2016

November 20, 2012

Expected Review Date

December 10, 2021

Publication Date

December 20, 2016

 

Schedule “A”

Standards of Practice, Policies and Guidelines of the College on Prescribing