What standards of practice?
The case law relating to telehealth is still not very extensive, but already certain disciplinary decisions underline the obvious: a health professional who practices in teleconsultation is subjected to the same requirements as within the framework of a traditional practice, in the physical presence of the patient. . Therefore, he cannot practice under lower “standards of practice”.
Generally, in the health professions, these “standards of practice” and the various applicable rules are quite similar from one province to another. However, some differences can be observed. In a telehealth context where the patient is not in the same province as the professional, it is then necessary to determine which rules to apply: those of the place where the patient is located or those of the place where the professional is located?
An interesting comparison in this regard is one that can be made with the online sale of regulated products, such as drugs and ophthalmic lenses, in an interprovincial context or to American consumers.
The courts, both in Quebec and in Ontario, have tended to look for the place where the professional act was performed to determine the applicable rules, or a sufficient connection between the province whose rules are invoked and the persons or organizations to which we want to apply them, depending on their activities or place of residence. However, the mere delivery of the product to the patient in a given province did not always appear sufficient for the laws of that province to apply.
To return to Amazon’s online pharmacy, and despite the administrative requirements imposed by certain professional orders on this subject, it is not certain that the laws of the province where the drug would be delivered would be those that are applicable and, therefore , that a license would be required there, unless it could be claimed that a professional act reserved for pharmacists was performed there.
A necessary collaboration between the provinces
Canada is obviously not the only country grappling with the difficulty of regulating telehealth services. The situation also appears complex in the United States where, most of the time, the professional is required to be both holder of a right to practice in the state in which he is located, as well as in the state where the patient is. However, legislative and administrative cooperation agreements are planned in certain professions, for certain American states.
These agreements have the effect of facilitating the process of authorization to practice in a “recipient” or “secondary” state, where the patient is located, from a “home” or “primary” state, where the patient is located. professional. The handling of complaints from the public and measures to protect the public can then be facilitated, thanks in particular to the possibility for the regulatory authorities of the “receiving state” to carry out joint investigations with the regulatory authority of the “main state”. “.
For the European Union, the situation seems a little clearer, although still imperfect, namely that the right to practice medicine in one Member State would be sufficient to offer services in another Member State, in telehealth. It generally follows that the rules to be observed are those of the place where the care provider is located, which is not necessarily to the advantage of the patient.
Ultimately, considering the observed and anticipated boom in telehealth since the start of the pandemic, clarification and coordination of the rules applicable in Canada would certainly be desirable. A priori, it is first and foremost the provinces that should act in this area. To this end, they could draw inspiration from the model of legislative and administrative cooperation developed in the United States for certain professions.
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