CMPA Perspective March 2016

The risk management magazine of the Canadian Medical Protective Association
Perspective
Volume 8 No. 1 March 2016
Feature: physician wellness the aging physician:
maintaining competence and practising safely ■ Professionalism mutuality and
extent of assistance ■ safe systems medical-legal implications when using restraints
■ consent meeting expectations with reality: handling consent for elective cosmetic
procedures ■ legislation completing medical certificates of death: who’s responsible?
■ safe systems documentation should summarize, but needn’t be exhaustive

from the CEO Over the past 100 years, our profession has evolved in a variety of
ways. When I started my internship in the ‘70s, ultrasounds — now a standard medical tool — had yet to be
introduced. I often think that the CMPA’s founding fathers would be astounded by the dramatic changes in our
profession and the evolving challenges we have had to face. For many of us, physician-assisted dying is one of
these new challenges.
The recent ruling by the Supreme Court granting the federal government a four-month extension to pass
assisted dying legislation, and the Québec government’s new assisted dying law, have put this extremely
important matter at the forefront of our profession. I know physician-assisted dying is top-of-mind for many of
us, and I want to reaffirm what I told members at our 2015 annual meeting in Halifax, where “End-of-life care:
medical-legal issues” was the focus of our information session.
The Association takes the matter of physician-assisted dying very seriously. End-of-life care is an extremely
emotional and important issue which needs to be considered by each and every physician, and you need to
know that when you face these issues, you are not alone. The CMPA is here for you.
First and foremost, the CMPA is an association of physicians, working on your behalf to protect members
when medical-legal difficulties occur during the practice of medicine. Since 1901 we have been
protecting the professional integrity of physicians and we will continue to do so. It’s who
we are and it’s what we do.
As the issue of physician-assisted dying evolves, we will continue to advise members
about specific legislation and regulatory authority guidelines and standards across
jurisdictions. We are ready to support Québec physicians under their new legislation,
and as other provinces come on line, we will assist them also. Our physician advisors
are fully versed in this matter and are here to provide advice when you call.
When appropriate, we will work with governments, medical associations,
federations, and medical regulatory authorities (Colleges) across Canada
to encourage consistent legislation and practice standards, with the
ultimate goal of ensuring clarity for physicians on this crucial issue.
Finally, we will continue to provide members with the most current
information on physician-assisted dying and end-of-life care on our
website (www.cmpa-acpm.ca).
The practice of medicine has changed dramatically over the past
100 years. What won’t change is the CMPA’s enduring commitment
to protect the professional integrity of our members.
Hartley Stern, MD, FRCSC, FACS
2 cmpa perspective | march 2016

contents
March 2016
4
Mutuality and extent
of assistance
Learn what “mutuality” means for
the CMPA and you, its members, in
this discussion of the Association’s
responsibility to individual members,
and members’ responsibility to the
membership as a whole.
6
CMPA 2016 council
nomination process
Interested in running
for a position on the
CMPA’s council? Check
out the nomination
process and timelines
for the 2016 election.
Medical-legal implications when
using restraints
Although there are times that restraints
are required, using them can create risks
for physicians and their patients. Become
aware of what those risks are and what
action you can take to lower them.
9
Feature
The aging physician:
Maintaining competence and
practising safely
Research and anecdotal reports
show a range of job performance
among older physicians. If you’re
contemplating practising into
later life, become familiar with the
potential issues and how you can
mitigate them.
10
Meeting expectation with reality:
Handling consent for elective
cosmetic procedures
The CMPA reviewed five years of its medical-legal cases
that involved cosmetic procedures and alleged issues with
consent. Find out what the issues were and what advice
the experts in the cases have for physicians performing
these procedures.
13
Completing medical certificates of death:
Who’s responsible?
16
Many physicians are uncertain of their obligations when a
patient dies. Learn the difference between pronouncing death
and certifying death, and when a death must be reported to a
coroner or medical examiner.
www.cmpa-acpm.ca
@cmpamembers
CMPA PERSPECTIVE, March 2016, VOL. 8 NO.1, P1601E
© The Canadian Medical Protective Association 2016 —
All reproduction rights reserved.
Publications mail agreement number 40069188.
CMPA Perspective magazine is published quarterly and is available
at www.cmpa-acpm.ca.
Ce document est aussi offert en français.
Address all correspondence to:
The Canadian Medical Protective Association
P.O. Box 8225, Station T, Ottawa, ON K1G 3H7
Telephone: 1-800-267-6522, 613-725-2000
(Monday to Friday, 8:30 a.m. to 4:30 p.m. ET)
Facsimile: 1-877-763-1300, 613-725-1300
Email: feedback@cmpa.org
Website: www.cmpa-acpm.ca
The information contained in this publication is for general educational purposes only and is not intended to provide specific professional medical or legal
advice, or to constitute a “standard of care” for Canadian healthcare professionals. Your use of CMPA learning resources is subject to the foregoing as well
as the complete disclaimer, which can be found at www.cmpa-acpm.ca; enter the site and go to “Terms of use“ at the bottom of the page.
Many of the images in CMPA Perspective are purchased stock photographs that use models and props to represent healthcare professionals and
settings. While we strive for these to be accurate, it is not always possible.
Credits
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c mpa perspective | march 2016 3

what’s new
New video: How the CMPA works for you ■
A new video, CMPA: Protecting Canadian physicians
and contributing to safe medical care, describes
the benefits of CMPA membership and the services
and resources offered to members. Watch it on the
cmpa website and YouTube.
Update on physician-assisted dying ■ Are you
concerned what the new rules around physicianassisted
dying might mean for you and your patients?
Visit the CMPA website and keep up to date on this
evolving issue.
Learn about eCommunications and social media
do’s and don’ts ■ Do you communicate with
patients and colleagues using email, social media, or
other electronic channels? Two new sections in the
CMPA Good Practices Guide — eCommunications
and Social Media — will help you protect private
information and maintain your professional
obligations. Visit www.cmpa-acpm.ca/gpg.
Professionalism
mutuality
and extent of
assistance
Continuing medical education ■ Looking for
better ways to earn CME credits? The CMPA
is proud to be one of the largest providers of
continuing medical education in Canada. Visit
the CMPA website to register for an upcoming
symposium or regional conference, or try an
eLearning activity to learn online.
CMPA Physician Risk Managers
and CMPA Medical Officers
are now Physician Advisors
CMPA Physician Risk Managers
and Medical Officers will now
be known as Physician Advisors,
a change reflective of the
cmpa’s new vision as outlined
in the 2015-2019 Strategic Plan.
Physician Advisors will play an
enhanced role in assisting and
advising members across the
continuum of their professional
medical careers.
In 1901 the Canadian Medical Protective
Association (CMPA) was formed as a mutual
defence organization and mutuality remains a
key value that defines CMPA membership. The
underlying principal of mutuality is that members
collectively share the associated risks and costs
of medical-legal support among themselves,
while benefiting from membership in a mutual
defence organization. In keeping with its core
value of mutuality, CMPA members are eligible
for medical liability protection in accordance
with the CMPA By-law and, in turn, members are
expected to practise in a manner consistent with
the values of the profession.
Mutuality encompasses both the CMPA’s
responsibility to individual members pursuant to
the By-law, and members’ responsibility to their
colleagues and the mutual as a whole. As the
Association has evolved to support the needs
of its membership, so too must the membership
recognize and support the overall needs of the
Association, with the ultimate goal of ensuring a
medical liability system that is effective, sustainable,
fair, and focused on delivering safe care.
4 cmpa perspective | march 2016

In the context of mutuality of
obligations, the CMPA:
▪▪
▪▪
▪▪
▪▪
Provides access to high-quality assistance and
support to members, where eligible and appropriate,
with medical-legal issues arising from their medical
professional work.
Serves as a responsible steward of the resources and
funds entrusted to it by all members.
Provides appropriate compensation on behalf of
members to their patients who have been proven to
have been harmed by members’ negligent medical
care.
Is fair and transparent to the member in the
application of its discretion when making decisions
about assistance to members.
CMPA members in the mutual are
expected to:
▪▪
▪▪
Uphold the expectations of the medical profession by
practising in a manner consistent with the values of
the medical profession.
Be responsive, respectful, and reasonable with
CMPA staff and legal counsel.
▪▪
▪▪
Co-operate with CMPA and its legal counsel and be
appropriately involved in their own defence.
Co-operate with CMPA and its professional staff in
assessing and understanding the members’ medicallegal
risk, accept feedback to help gain insight into
their risk, and commit to working with the CMPA, to
proactively reduce their risk for their own benefit and
that of the collective membership.
While the CMPA’s risk management advice and
assistance are available to all members throughout
their career, more customized educational support will
be made available to members who are experiencing
increased medical-legal challenges in relation to their
peers. As part of mutuality, members will be expected to
work with the CMPA to proactively reduce their risk and
enhance the safety of medical care.
By assisting physicians to improve their practice, the
benefits are shared by the physician, the patient, and
the healthcare system as a whole.
Mutuality encompasses both
the CMPA’s responsibility
to individual members
pursuant to the By-law, and
members’ responsibility
to their colleagues and the
mutual as a whole.
c mpa perspective | march 2016 5

safe systems
medical-legal implications
when using restraints
When there’s a possibility that patients may harm themselves or others, physical or chemical restraint
may be required. However, the use of restraints is not without risk. Injuries to staff and patients, cardiorespiratory
problems, sudden unexpected death, stress, reduced psychological well-being for staff and
patients, and decreased mobility, can all be associated with the use of restraints. 1
What can physicians do to reduce the risk?
Legislation and best practices on the use of
restraints offer strong guidance. As well, the
experts involved in the CMPA’s medical-legal
cases involving restraints identified what doctors
can do to make restraints safer, such as clearly
communicating with patients about restraint use
and effectively monitoring restrained patients.
The CMPA’s experience
A 10-year review of the Association’s cases revealed
69 closed medical-legal matters involving the use
of restraints: 36 legal cases, 26 regulatory authority
(College) complaints, and 7 hospital matters.
The doctors most often involved were psychiatrists,
emergency physicians, and family physicians with
emergency room privileges.
In the analyzed cases, restraint was commonly
used to contain violent behaviour, reduce the
potential for the patients to harm themselves or
others, and allow physicians to conduct a proper
assessment. Typically, restraint was initiated
when other less invasive means of de-escalating a
situation had failed.
Mental health and substance use issues were
prevalent among the patients in the studied
cases. Of the patients with these issues, half
complained about the use of involuntary admission
and chemical or physical restraint. Yet, all such
complaints had favourable outcomes, with experts
in the cases acknowledging that restraint was
required for the safety of the patient or others.
6 cmpa perspective | march 2016

Geriatric patients with dementia who required
restraint were primarily treated with medications
for aggressive behaviour. In some of the reviewed
cases, elderly patients experiencing agitation were
given medications that experts did not feel met the
standard of care for individuals of that age. The
experts criticized the choice of medication, the
dosage, or both. Further, expert opinion in cases
with geriatric patients highlighted the need to further
investigate the factors underlying the agitation
before increasing sedative medication. Lack of
communication with family members about restraint
use was also criticized.
Inadequate supervision and monitoring resulted in
significant patient safety issues in several patients
in the case series. Two patients died of asphyxiation
while restrained. Another died of a pulmonary
embolus when allowed to walk to the shower after
five days in restraints. Medication errors were seen
in cases involving chemical restraints, including oversedation
with respiratory compromise.
Among the reviewed cases were five College
complaints involving the physical restraint of children
16 years of age or younger during immunization or
examination. The Colleges criticized the physicians
involved for not explaining the need and the method
of restraint adequately and compassionately to the
parents and children.
Restraint legislation
Physicians should be familiar with any relevant
legislation governing the use of restraints in
their jurisdiction.
For example, Ontario has had the Patient Restraint
Minimization Act in place since 2001. It stipulates
that a hospital may apply restraints if necessary to
prevent harm to the patient or others, to enhance
the patient’s freedom or enjoyment of life, and if it
is part of a treatment plan authorized by the patient
or their substitute decision-maker. The legislation
outlines important considerations in the use of
restraints including the adequate monitoring of
patients. It also emphasizes the importance of trying
alternate methods, staff training, and appropriate
record-keeping. Most hospital policies dictate that
a physician order is required for restraints and that
restraint orders are reassessed every 24 hours.
The Act does not apply in psychiatric facilities
where the Mental Health Act governs the use of
restraints. The Restraint Minimization Act does not
affect the ability to restrain or confine an incapable
individual who requires immediate action to
prevent serious bodily harm when no substitute
decision-maker is available.
In Quebec’s Act Respecting Health Services
and Social Services, requirements are similar:
“118.1. Force, isolation, mechanical means or
chemicals may not be used to place a person under
control in an installation maintained by an institution
except to prevent the person from inflicting harm
upon himself or others. The use of such means must
be minimal and resorted to only exceptionally, and
must be appropriate having regard to the person’s
physical and mental state.” 2
Managing medical-legal risk
Although most of the CMPA medical-legal cases had
favourable outcomes for physicians’ care, restraining
a patient can nonetheless create liability risk for
ordering doctors. The issues identified by the experts
in the Association’s cases highlight opportunities to
address patient safety.
Experts who examined the care in these cases
noted the need for effective communication and
documentation. It is essential that physicians speak
with patients or families, clearly explaining why
and how restraints are being employed. Those
discussions and the information relied on to make
the clinical decision in favour of restraints should
be documented.
c mpa perspective | march 2016 7

Inadequate staff or monitoring was particularly significant in
the CMPA restraint cases where the outcome was patient
death. These cases call attention to the need for adequate
resources and equipment to effectively monitor and safely
secure restrained patients.
The cases also indicate that physicians should follow current
standards of care and institutional policies when giving
medication, including appropriate monitoring and follow-up.
Medical-legal risk can also be mitigated by following
guidelines on the use of restraints; complying with laws,
rules, regulations, and accreditation standards; and having
appropriate staff training and protocols for observation and
treatment. 3,4,5 Best practices on restraints generally emphasize
that institutions should strive to be restraint free. Restraints
should be considered extraordinary measures and only used
when alternate interventions fail. When considered necessary,
they should be tracked and employed for the shortest time
possible, and the restraint order should be regularly revisited.
Some institutions mandate a debriefing shortly after a
patient has been restrained. In addition, Accreditation
Canada requires that institutions being surveyed provide
information about their restraint policies and practices.
By considering expert testimony in CMPA’s medical-legal
cases and current best practices, and by complying with
applicable laws, policies, and standards, the risks and
adverse effects from restraints should be minimized.
Risk management considerations
When using restraints physicians should consider the
following risk management measures, which are based on
the experts’ opinions in the analyzed CMPA cases:
▪▪
▪▪
▪▪
▪▪
▪▪
▪▪
▪▪
Attempt to de-escalate the situation using
other methods.
Obtain an adequate history, including medications
and co-morbidities.
Conduct an appropriate physical examination.
Explain the plan for the use of restraints calmly and
clearly to patients or substitute decision-makers.
Document the rationale for using restraints and use the
least restrictive means necessary.
Ensure clear and readily available policies and
procedures for monitoring restrained patients and
ensure appropriate training of staff.
Adhere to applicable regulations, laws, and
accreditation standards.
1. Rakhmatullina, M., Taub, A., Jacob, T., “Morbidity and mortality associated with the utilization of restraints: a review of literature,” Psychiatric Quarterly (2013) Vol. 84 No. 4, p.499-512.
2. Government of Québec, An Act Respecting Health Services and Social Services, S -4.2. Retrieved on March 4, 2015 from: http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/
telecharge.php?type=2&file=/S_4_2/S4_2_A.html.
3. Emanuel, L.L., Taylor, L., Hain, A., Combes, J.R., Hatlie, M.J., Karsh, B., Lau, D.T., Shalowitz, J., Shaw, T., Walton, M., eds., “PSEP - Canada Module 13d: Mental Health Care: Seclusion and
restraints, When all else fails,” The Patient Safety Education Program - Canada (PSEP - Canada) Curriculum. © PSEP-Canada Project, 2010. Accessed February 2, 2016 from: http://http://www.
patientsafetyinstitute.ca/en/education/PatientSafetyEducationProgram/PatientSafetyEducationCurriculum/MentalHealthModules/Pages/Mental-Health-Care-Seclusion-and-Restraint.aspx.
4. Registered Nurses’ Association of Ontario , “Promoting Safety: Alternative Approaches to the Use of Restraints,” 2012, Clinical Best Practice Guidelines. Accessed February 2, 2016 from:
http://rnao.ca/sites/rnao-ca/files/Promoting_Safety_-_Alternative_Approaches_to_the_Use_of_Restraints_0.pdf.
5. American College of Emergency Physicians, “Use of patient restraints,” Clinical and Practice Management, April 2014. Accessed February 2, 2016 from: http://www.acep.org/Clinical---
Practice-Management/Use-of-Patient-Restraints.
8 cmpa perspective | march 2016

2016 CMPA
council
nomination
process
February 24
April 6
May 11
June 15
August 24
1
The nominating
committee’s list of proposed
candidates released on the
cmpa website
2
Deadline for receipt of
nominations from members
resulting in a contested
election
3
Election information released
and voting platforms opened
to members in geographical
areas where elections are
required
4
Online voting ends
5
Election results
announced at the
cmpa Annual Meeting
The CMPA is governed by an elected council of
30 practising physicians representing 10 geographical
areas across Canada. In 2016, eight council positions
are scheduled for nomination and election in the
following areas: British Columbia and Yukon, Alberta,
Ontario, Québec, New Brunswick, and Newfoundland
and Labrador.
The CMPA Nominating Committee considers nominees
and selects those it will recommend to the membership
for election to council. Current members of council may
also choose to seek nomination and re-election for an
additional three-year term.
The slate of candidates proposed by the nominating
committee can be found in the 2016 Report of the
Nominating Committee, which is available on the CMPA
website, www.cmpa-acpm.ca. Terms of office commence
immediately following the 2016 CMPA Annual Meeting
held on August 24th, 2016. Once elected, councillors
serve for a three-year term.
In addition to those candidates proposed by the
nominating committee, CMPA members have the
opportunity to seek nomination and election to council on
the basis of their province or territory of work (geographical
area) and their type of practice (generalist-division A or
specialist-division B). All nominees are asked to consider
how their experience in the following areas may contribute
to the governance of the CMPA: medical, clinical, and
safe medical care experience; leadership in the medical
profession; influence beyond the medical community;
medical education and research experience; business,
legal, and governance experience; and financial and
investment literacy.
The council election process, including how candidates
are nominated and elected, is governed by Article 4 of the
CMPA By-law.
The CMPA
2016 Report of
the Nominating
Committee
is AVailaBLE
EXclusiVely
ONLINE
cmpa perspective | march 2016 9

feature
Physician wellness the aging
physician: maintaining
competence and practising safely
As physicians age, there is increasing attention on their
ongoing clinical competency by medical regulatory
authorities (Colleges) and others. Aging physicians and
their colleagues should be familiar with the main issues
associated with working later in life, including the key
medical-legal risks, and how to support the ongoing delivery
of safe medical care.
Research and anecdotal reports suggest a range
of clinical performance among older physicians.
These doctors can bring significant knowledge and
experience to their practice and the profession,
and many perform at the same level or close to the
same level as their younger peers. 1 Some are able to
maintain their full practice or continue in some form by
modifying their work, for example changing the type
of activities they perform or the number of patients
they see. Others may experience challenges as they
age and may need to stop their medical practice
earlier than they expected. And some may have limited
ability to assess their own competence 2 and may be
unaware of a decline in their performance.
Health problems and cognitive decline
Physicians generally retain their deep medical
knowledge as they age, but several factors related
to aging may impact their health and cognitive
abilities. A 2011 study shows the prevalence of mild
cognitive impairment is estimated to be 10% to 20% in
individuals who are 65 years old and older. 3 Sensory
and motor impairment, decreasing working memory,
and slowing speed of mental operations can affect
physicians’ analytical processes as they grow older. 4
While the effects of aging vary from doctor to doctor,
other factors impacting an older physician’s level of
competence include personal issues, practice setting,
clinical volume, specialty, and overall level of stress. 5
Doctors also face the same health issues as the general
aging population, making them susceptible to infections,
stroke, diabetes, dementia, and other acute and
chronic illnesses and conditions. These health issues,
and others, may be detrimental to older physicians’
performance and may increase risks in their practice.
Risks to healthcare safety
Several studies indicate deficient performance due
to age-related issues of some physicians may place
patients at risk. An American 2005 study concluded
some “…older physicians possess less factual
knowledge, are less likely to adhere to appropriate
standards of care, and may also have poorer patient
outcomes.” 6 As well, some older physicians may be
less likely to acquire knowledge over time and others
may hesitate to renew their training or to stay abreast of
the latest clinical practices. 5 A 2006 study found that in
complicated operations, patients’ mortality rates were
higher among surgeons 60 or older. 7
This does not discount the fact many senior physicians
bring advanced experience that can positively affect
patient outcomes. And as some areas of the country are
experiencing doctor shortages, it can be to everyone’s
advantage to support older physicians who are
performing well in practice. 8
10 cmpa perspective | march 2016

Monitoring aging physicians: College
and hospital policies
There are no national guidelines in Canada to help
ensure older doctors are still competent to practise
safely and effectively, nor is there a mandatory
retirement age for doctors. Some Colleges
monitor and test older physicians through audits,
competency reviews, and other programs. For
instance, the College of Physicians and Surgeons
of Manitoba initiates chart audits at age 75 and
repeats them every five years, 9 while the College
of Physicians and Surgeons of Ontario conducts
peer assessments at the age of 70 and then every
five years. 10 The Collège des médecins du Québec
evaluates physicians 60 years of age and over
through a questionnaire designed to assess certain
risk factors. 11
Some hospitals have specific guidelines requiring
older physicians undergo screening to evaluate
their clinical competency, as a condition to renew
their privileges, and as a way to retain particular
expertise that may not otherwise be available. It also
has been reported many Canadian hospitals began
creating senior staff categories nearly a decade ago
to address these and other concerns about doctors
who are aging. 8
The numbers — Statistics collected by the Canadian
Medical Association indicate 15% of physicians
(12,128 out of 78,657 medical doctors) are 65 years of
age and older. This cohort is followed by 19,555 doctors
in the 55-64 age group. 12 Moreover, it is estimated 20% of
Canadian physicians will be 65 years or older by 2026. 8
55 – 64
years
65 years+
Physicians generally retain their
deep medical knowledge as they
age, but several factors related
to aging may impact their health
and cognitive abilities.
c mpa perspective | march 2016 11

How to practise safely and maintain competence
The following tips may be helpful for physicians as they age:
▪▪
▪▪
▪▪
▪▪
▪▪
▪▪
▪▪
Consider your own health issues and the possibility of
cognitive decline. Strive to maintain a healthy lifestyle
through good diet and exercise. 5
Carefully consider the concerns of family members,
treating physicians, colleagues, friends, and patients
regarding your own health and practice. Seek timely
assistance and support for issues and problems.
Where appropriate, consider narrowing or limiting the
scope of your practice or work, shortening your work
hours or week, and decreasing the workload based on
the time demands, your stamina, and fatigue levels. 4
Take appropriate time with cases requiring rapid
cognitive processing, when necessary. Plan for
longer appointments for patients with complex
medical problems. 5
Avoid, where possible, practising in isolation and work in
collaboration with other providers.
Be familiar with any relevant College competency review
programs, and hospital guidelines and policies regarding
screening to maintain competency and proficient
performance in practice.
Consider self-assessment programs such as those
offered by the Royal College of Physicians and Surgeons
of Canada 13 to assess your knowledge and practice to
further enhance your competence.
▪▪
▪▪
▪▪
▪▪
▪▪
Document patient care in medical records. A
physician’s thought process is demonstrated through
good documentation.
Consider your approach to retirement so you can
continue to meet the needs of your patients and your
own personal goals.
If you are in an administrative position, collaborate
with all members of your department to support
aging physicians.
If you encounter a colleague or another doctor who
appears to be having difficulties possibly due to
advancing age, it is advisable to talk with the doctor
directly and privately. An open and honest discussion,
carried out with empathy, is usually well-received. If it
is not, speak to another colleague or physician leader
for guidance and support. Furthermore, be familiar with
the legislation and College policies on reporting in your
province or territory in case you conclude you have a
legal duty or ethical responsibility to report a physician’s
health decline possibly due to advanced age. 14
If you feel you are being discriminated against based on
your age, consider contacting the CMPA for advice.
In many cases, doctors can successfully modify their
medical practice to accommodate changes as they age and
continue to meet their patients’ needs.
▪▪
Keep up to date with clinical standards, and meet
requirements for continuing medical education and
professional development.
Additional reading at www.cmpa-acpm.ca
▪ ▪ “Physician health: Putting yourself first”
▪ ▪ “Winding down your practice”
▪ ▪ “Reporting another physician”
1. Drag LL, Bieliauskas LA, Langenecker SA, Greenfield LJ. Cognitive functioning, retirement
status, and age: results from the Cognitive Changes and Retirement among Senior Surgeons
study. J Am Coll Surg 2010;211(3):303-7.
2. Davis DA, Mazmanian PE, Fordis M. Accuracy of physician self-assessment compared with
observed measures of competence. JAMA 2006 Sep 6;296(9):1094-102.
3. Peterson RC. Mild Cognitive Impairment. N Engl J Med. 2011;364(23): 2227-234.
4. American Medical Association. Competency and Retirement: Evaluating the Senior Physician.
AMA Wire [Internet]. 2015 June 23 [cited 2015 Nov 2]. Available from: http://www.ama-assn.
org/ama/ama-wire/post/competency-retirement-evaluating-senior-physician.
5. Lee L, Weston W. The Aging Physician. Can Fam Physician [Internet]. 2012 [cited 2015 Nov
2];58(1):17-18. Available from. http://www.cfp.ca/content/58/1/17.full.
6. Choudhry NK., Fletcher RH, Soumerai SB. Systematic Review: The Relationship between
Clinical Experience and Quality of Health Care. Ann Intern Med [Internet]. 2005 [cited 2015
Nov 2];142( 4):260-74. Available from: http://annals.org/article.aspx?articleid=718215.
7. Donaldson LJ, Panesar SS, McAvoy PA, Scarrott DM. Identification of poor performance
in a national medical workforce over 11 years: an observational study. BMJ Qual Saf 2014
Feb;23(2):147-52.
8. Collier R. Diagnosing the Aging Physician. CMAJ [Internet]. 2008 [cited 2015
Nov 2];178( 9):1121-123. Available from: http://www.cmaj.ca/content/178/9/1121.
full?ijkey=93ec04862c1862cbf333b253bb42abcf780cb25f&keytype2=tf_ipsecsha.
9. Annual Report 2014 [Internet]. Winnipeg (MB); College of Physicians and Surgeons of
Manitoba;[cited 2016 Jan 21]. Available from: http://cpsm.mb.ca/cjj39alckF30a/wp-content/
uploads/CPSMAnnRep2014.pdf.
10. Selection for Assessment [Internet]. Toronto (ON); College of Physicians and Surgeons of
Ontario, Peer Assessment section; [cited 2016 Jan 21]. Available from: http://www.cpso.on.ca/
CPSO-Members/Peer-Assessment/Selection-for-Assessment.
11. Nouveau Programme 60 Ans. Le Collège [Internet]. 2015 [cited 2015 Nov 10];55(1): 21.
Available from : http://www.cmq.org/publications-pdf/p-5-2015-01-01-fr-hiver-2015.pdf.
12. Canadian Medical Association. Number of Active Physicians by Age, Sex and Province/
Territory, Canada, 2015. CMA Masterfile. 2015. Available from: https://www.cma.ca/Assets/
assets-library/document/en/advocacy/04AgeSexPrv.pdf.
13. Self-Assessment Programs (SAPs) [Internet]. Ottawa (ON): Royal College of Physicians and
Surgeons of Canada, About Us section; 2010[cited 2016 Jan 21]. Available from: http://www.
royalcollege.ca/portal/page/portal/rc/members/cpd/cpd_accreditation/self_assessment_
programs.
14. Canadian Medical Protective Association. Reporting another physician. Dec. 2010. [Internet].
[cited 2016 Jan 21] Available from: https://www.cmpa-acpm.ca/en/physician-wellness1/-/
asset_publisher/la3xaaAQQE06/content/reporting-another-physician.
12 cmpa perspective | march 2016

consent
meeting expectations with reality:
handling consent for
elective cosmetic
procedures
Most elective cosmetic surgery is very successful.
However, patients undergoing cosmetic procedures
often have high expectations that may be unrealistic.
By conducting and documenting an informed consent
discussion physicians can minimize the potential gap
between what patients want and what can reasonably
be provided.
Patients’ unrealistic expectations about the outcome
of an elective cosmetic procedure can be potentiated,
in part, by the fact they are paying privately for the
services. Healthcare professionals may contribute to
these expectations, intentionally or not, by presenting
idealized results or giving incomplete information about
a procedure and possible complications. For these
reasons, some courts may hold physicians to a higher
standard of disclosure in consent discussions for
cosmetic procedures.
These issues were underscored in a review of
89 CMPA cases from the last five years involving
elective cosmetic procedures and alleged suboptimal
consent. For this article, the CMPA only reviewed
cases where an uninsured procedure was performed
for indications not related to health and therefore not
covered by a provincial or territorial health plan. While
frequently aesthetic operations, these procedures, also
included vision correction surgery. The procedures were
performed by a number of different types of specialists.
Some courts may hold physicians
to a higher standard of disclosure
in consent discussions for
Despite the need for increased vigilance, there was
no consent discussion or documentation of a consent
discussion in almost one-third of the cases.
Understanding the factors that influence medical-legal
risk in this practice area provides context for problematic
consent cases.
cosmetic procedures.
c mpa perspective | march 2016 13

Patient factors
Patients often have high expectations for the results of elective
cosmetic procedures. Psychological factors, personal or
second-hand experiences with previous cosmetic procedures,
and media portrayals can all contribute to patients’ heightened
expectations. Online photo galleries may show a biased sample
of the most outstanding surgical results. Not surprisingly,
inappropriate patient selection is often linked to consent issues
in these procedures. In a small number of the reviewed CMPA
cases, surgeons were inappropriately influenced by patients’
preference for a particular procedure over the recommended
approach. In a few instances patients had been turned down by
another surgeon for the same procedure.
Experts on patient dissatisfaction with aesthetic surgery
recommend that healthcare professionals first consider
the nature of a patient’s presenting concern and physical
appearance, the healthcare professional’s own ability to address
the concern to the patient’s satisfaction, and the patient’s ability
to tolerate complications. 1
In some CMPA cosmetic consent cases, patients were
healthcare professionals who presumably understood the risks
of the procedure. Still, even when patients are assumed to have
more knowledge of cosmetic surgery, such as those working in
healthcare, the consent discussion must be informed.
As with many procedures, communication barriers between
physicians and patients can compromise informed consent.
Yet, difficulties stemming from a patient’s language ability
or level of understanding can often be managed. Medical
interpretation services can be accessed, and discussions and
written materials can be worded for clarity and comprehension.
Generally, the courts expect physicians to overcome
communication issues when obtaining informed consent.
Physician factors
Patient expectations can also be influenced by the healthcare
professional’s description of procedures and the expected
outcomes. Many of the CMPA cosmetic consent cases
involved overly optimistic descriptions of expected results.
For example, patients were promised “beautiful” or “amazing”
results. Similarly, there were instances of downplaying the
potential for failure or the likelihood of complications.
In a small number of the cases, the courts’ decisions were
not determined by issues with the consent discussions, but
rather by other factors such as the physicians being found
to be practising beyond their scope or licence, or the type
of surgery being performed was deemed inappropriate
by the courts.
The consent discussion and documentation
As to the content of the consent discussion and its
documentation, peer experts in the CMPA cases reviewed
were generally critical of the following:
▪▪
▪▪
▪▪
reliance only on generic forms to obtain and document
informed consent
supplementary written materials that were difficult to
comprehend
inadequate discussion of:
--
the likely outcomes of the surgery
--
recognized risks and complications including those that
are rare but of major consequence
--
pre-operative co-morbidities, e.g. diabetes, obesity, and
other risk factors such as smoking
--
post-operative precautions, including the risks
of smoking, need for mobilization, and use of
support garments
--
the new or innovative use of non-approved approaches
or devices, or off-label drugs
The consent discussion was often found insufficient for
repeat or revision procedures and for patients who had
previous cosmetic surgeries.
14 cmpa perspective | march 2016

Risk management considerations
Physicians and surgeons who perform cosmetic
procedures should consider the following suggestions,
which are based on peer expert opinion in the
cases reviewed:
▪▪
▪▪
Obtain a detailed patient history to ascertain patients’
motivation and determine the appropriateness of the
procedure and reasonable alternative options.
Assess patients’ ability to understand the information
being provided.
▪▪
Access medical interpretation services, as appropriate.
▪▪
Consider using decision aids to help patients
understand and weigh their options including
alternative procedures, no surgery, or delay of surgery.
Case example —
Misleading consent form
A 51-year-old man visits a laser eye clinic interested
in improving distance vision in his left eye. He is seen
on two occasions by an ophthalmology nurse who
assesses him and explains the proposed procedure.
At another visit, a nursing assistant conducts the
consent discussion. The following month, the
ophthalmologist meets the patient just before surgery
and asks if he has any questions. The patient says that
he does not. Neither of the consent discussions or
the consent form contains information on the effect
of the surgery on the patient’s near vision. The patient
undergoes uneventful LASIK on his left eye. Postsurgery
the patient is dismayed to discover a marked
reduction in his near vision requiring glasses.
The patient starts a legal action alleging a lack
of informed consent. The judge finds that the
information material given to the patient and the
wording of the consent form was short on details
and fell below the standard expected in the
circumstances. While these materials do mention
the need for reading glasses as a possible result,
the judge finds that the patient was never informed
that “in agreeing to undergo the surgery, he was
necessarily and automatically accepting a trade-off
whereby he would surely no longer need correction
glasses or contact lenses of his distance vision, but in
exchange, he would surely need glasses for his near
vision.” The judge finds in favour of the patient.
▪▪
▪▪
▪▪
▪▪
▪▪
▪▪
Use appropriate printed information with diagrams and
plain language instead of medical terms to supplement
verbal consent discussions.
Before confirming consent, give patients time and
opportunity to absorb the information and ask
questions.
Conduct consent discussions that include the following:
--
anticipated results
--
significant risks
--
rare, but important risks of major consequence
--
pre- and post-operative precautions
--
patients’ apparent understanding and expectations
Document consent discussions in patients’
medical records.
Ensure patients’ consent forms are signed and are
part of the medical record, and that they include all
procedures performed and prostheses used.
Repeat these consent practices for any
revision procedures and at regular intervals for
repeat procedures.
Additional reading at www.cmpa-acpm.ca
▪ ▪ “When consent is informed”
▪▪
Consent: A guide for Canadian physicians
In obtaining consent for cosmetic procedures,
physicians should take particular care in explaining
fully the risks and anticipated results. The courts
may impose a higher standard of disclosure for
these procedures.
1. Constantian, M.B., Lin, C.P., “Why some patients are unhappy: part 2. Relationship of nasal shape and
trauma history to surgical success,” Plastic Reconstructive Surgery (2014) Vol. 134 No. 4, p.836-51.
c mpa perspective | march 2016 15

Legislation
completing medical
certificates
of death:
who’s responsible?
A medical certificate of death is a permanent, legal record of
a person’s death and its circumstances. Death certificates are
important legal documents. They also provide statistics on
causes of death and data for measuring health problems, assist
in public health surveillance, and guide health promotion and
disease control activities.
While most physicians have experience with a patient dying,
some doctors remain uncertain about who can pronounce
a death, who can certify a death, and what their obligations
are in both these circumstances.
Pronouncing death
Pronouncing a death means issuing an opinion that life
has ceased based on a physical assessment of the patient.
Contrary to popular belief, there is no legal requirement
that death be pronounced by a physician. Another person,
such as a nurse who was caring for the deceased, could
pronounce a patient’s death. If death occurs in a hospital
or long-term care home, there may be specific policies and
procedures on who may pronounce death in the facility.
Certifying death
Certifying a death is not the same as pronouncing death.
Certifying a death is the legal process of attesting to the
fact, cause, and manner of someone’s death, in writing,
on the form prescribed by the local authority. Each
province and territory has legislation governing who can
certify a death.
Death certificates and
physician-assisted dying
As physician-assisted dying became legal in
Québec in December 2015 and is soon expected
to become legal in the rest of Canada, physicians
should inform themselves of any legislative and
regulatory requirements regarding the completion
of death certificates in the context, in particular the
classification of the cause of death and regarding
the reporting of the death to the coroner or
medical examiner.
In general, any physician who was in attendance during the
last illness of the deceased person or who has sufficient
knowledge of the last illness has a legal obligation to
complete the death certificate. In some provinces and
territories, legislation also states that a nurse practitioner
who was in attendance during the last illness can complete
and sign the death certificate if the death was expected
as the result of a diagnosed chronic or acute illness or
condition. 1 In Québec, nurses are authorized to document,
in a prescribed form, clinical information specific to
the patient’s death. The form must then be transmitted
to the responsible physician for completion of the
death certificate.
It is important to note that any physician in attendance
during the last illness or with sufficient knowledge of the
deceased’s last illness can complete the death certificate.
This physician does not need to be the patient’s primary
care physician. Physicians who have sufficient knowledge
of the patient’s last illness may be asked to complete the
death certificate even though the primary care physician
may have greater knowledge of the patient.
When the duty to complete the death certificate is engaged,
physicians must do so promptly after the patient’s death.
Several provinces and territories require that the death
certificate be completed immediately or without delay, while
others require completion within 48 hours of death. Undue
delays or failure on the part of a physician to complete the
death certificate could expose a physician to the risk of
a complaint to the regulatory authority (College) or a fine
under the applicable statute.
16 cmpa perspective | march 2016

Certifying a death is not the same
as pronouncing a death. Certifying
a death involves forming an opinion
on the likely cause and manner of
death, while pronouncing a death
is simply a confirmation that life
has ceased.
Duty to report to coroner or medical examiner
Each province and territory also has legislation governing
when a death must be reported to the coroner or medical
examiner. Physicians have a duty to report a death that
they believe is suspicious or that has occurred under the
circumstances listed in the legislation. These circumstances
include death that is the result of violence or homicide,
negligence, misconduct, or malpractice; during pregnancy;
or that is unexplained or unexpected. The specific
legislation in each jurisdiction might require physicians
to report information about a death to the coroner in
other circumstances.
There are two objectives for reporting deaths to the coroner
or medical examiner. The first is to determine the cause
and manner of the death (and at times, the identity of the
deceased). The second is to make recommendations about
any systemic issues that may have contributed to the death.
In cases where coroners or medical examiners have been
brought in, they are responsible for completing the death
certificate. That said, physicians may still need to attend
to the deceased to make a determination that the cause
of death is suspicious, sudden, unexpected, or otherwise
requires notification of the coroner under the legislation.
Medical-legal issues
A family practitioner who had primary responsibility for the
care of a deceased patient during the last illness might be
asked to attend to the patient if the patient died at home and
there are no concerns about the circumstances or cause
of death. Rather than risk a complaint being made by
the deceased’s family to the College or being liable to
a fine, it may be prudent for physicians to attend to the
deceased in these situations to certify the death.
If a physician is truly unable to attend to the deceased
patient in the short term, because the patient no longer
lives in the same geographic area or the physician is not
immediately available, it may be helpful for the physician
to remind the requesting party that any physician who
has sufficient knowledge of the death can complete the
death certificate. It may be more expedient and practical
for another physician (or a nurse practitioner, where
applicable and appropriate) to certify the death.
The College of Physicians and Surgeons of Ontario
recommends a similar approach when physicians
have made a commitment to care for patients who
are expected to die at home. The College’s policy on
The difference between coroners
and medical examiners
The terms “coroner” and “medical examiner” are often
used interchangeably, but they represent different
systems of investigating deaths. For example, although
medical examiners are physicians, coroners in some
provinces and territories do not need to be physicians.
The majority of provinces and territories use the
coroner system to investigate deaths.
c mpa perspective | march 2016 17

“Decision-making for the End of Life” states that in these
situations, physicians should ensure there is a plan for the
certification of death, including arranging to certify the death
themselves or to have another qualified person certify the
death if they are unavailable. 2
Alternatively, physicians should also be aware that provincial
and territorial legislation does not necessarily require that
physicians formally attend to the body to certify the death
in every case. If it is appropriate, physicians can rely on the
patient’s file and on information reported to them by other
health professionals who attended to the patient during his
or her last illness. Physicians in these cases should carefully
review the record and make the necessary inquiries to satisfy
themselves that the information is correct, especially as it
relates to the cause of death. Physicians may, however, wish
to attend to the body to certify the death if they feel they
have insufficient information or if they have questions about
the circumstances of the death. Physicians who complete
a medical certificate without making reasonably necessary
inquiries could expose themselves to liability.
When a patient’s death is imminent and expected to occur
naturally, physicians may prepare some parts of the death
certificate in advance of the patient dying. However, the form
should not be finalized until after the patient has died.
The essential points
▪▪
▪▪
▪▪
There is no legal requirement that death be pronounced
by a physician. The medical certificate of death,
however, must generally be completed by the physician
in attendance during the patient’s last illness or any
physician who has sufficient knowledge of the last
illness. In some jurisdictions, nurse practitioners who
attended the patient during the last illness can complete
a death certificate. In Québec, nurses can document the
clinical information specific to the patient’s death and
transmit that information to the responsible physician for
completion of the death certificate.
When a death occurs in unusual circumstances or
in circumstances that are specified in legislation as
reportable, physicians must report it to the coroner or
medical examiner. Physicians should be aware of what
constitutes a reportable death in their province or territory.
The coroner or medical examiner will then investigate the
case and complete the medical certificate of death.
Physicians should know their legal obligations for
certifying a death, be aware of the potential medicallegal
issues, and act reasonably and professionally when
requested to attend and certify a patient’s death.
1. Currently, nurse practitioners in Nova Scotia, Ontario, British Columbia,
Newfoundland and Labrador, Yukon, and the Northwest Territories can complete
a medical certificate of death.
2. The College of Physicians and Surgeons of Ontario, Policy #4-15, “Planning for
and Providing Quality End-of-Life Care,” reviewed and updated September 2015.
Accessed October 8, 2015 from: http://www.cpso.on.ca/Policies-Publications/
Policy/Planning-for-Providing-Quality-End-of-Life-Care.
Additional reading at www.cmpa-acpm.ca
▪ ▪
“Understanding the role of coroners and
medical examiners”
CMPA Annual Meeting and Information Session
Join us in
Vancouver
August 24, 2016
2016 Information session topic :
For information: 1-800-267-6522
or executive@cmpa.org
OPIOIDS
18 cmpa perspective | march 2016

did you know?
Spotlight on essential medical-legal concepts for physicians
safe systems documentation should
summarize, but needn’t be exhaustive
Documenting a patient encounter, whether into a
paper or electronic medical record, is integral to
the delivery of safe, high-quality care. It facilitates
good care by keeping a record of patients’ care and
general health information, allowing the treating
physician and other caregivers to understand patients’
conditions and the reasons for certain investigations
or treatments, providing a means of communicating
with other care team members, and satisfying the legal
and professional requirements of legislation, medical
regulatory authorities (Colleges), hospitals, and courts.
Because medical records also serve as legal
documents, properly constructed records that
are created contemporaneously (at the time of
the encounter or as close to it as possible) may
help physicians recall details, specifically when
used as evidence in a legal action or when
responding to a College complaint.
Clinical notes do not have to be exhaustive,
yet must provide an adequate summary of
the clinical situation and physicians’ thought
processes leading to a diagnosis and plan of
care. The following information is important to
consider when documenting clinical care:
▪▪
▪▪
▪▪
▪▪
▪▪
clinical assessment
conclusions including working, differential,
and final diagnoses
the rationale for plans of action
such as investigations, treatments,
and consultations
information exchanges with patients and
families including discussions, decisions,
apparent understanding, and consent
discharge instructions and follow-up care
A medical record can be corrected; however it
must be done appropriately in accordance with
provincial and territorial standards.
For answers to your questions on documentation,
go online to www.cmpa-acpm.ca and search for
the CMPA Good Practices Guide or for the word
“documentation.”
c mpa perspective | march 2016 19

How do you strengthen
115 years of commitment?
Renew your promise.
Since 1901, the Canadian Medical Protective
Association (cmpa) has been the trusted provider of
medical-legal protection for Canadian physicians.
As part of our 2015-2019 Strategic Plan, new
and ambitious goals have been set to ensure we
can continue to protect the professional integrity
of physicians and promote safe medical care
while meeting the changing medical-legal needs
of our members.
As an essential component of the Canadian
healthcare system, we are proud to unveil a
fresh visual identity anchored in the same
enduring commitment to our members
and stakeholders.
Empowering
better
healthcare
— this is the CMPA promise.