The purpose of this text is to specify the conduct expected of physicians who practice in non-hospital settings with respect to their obligation to enter into a lease or written agreement.
Background
On October 14, 2005, the Minister of Justice and Minister Responsible for the Application of Professional Legislation released the Office des professions du Québec’s opinion regarding commercial practices between physicians and pharmacists.
On March 31, 2006, in response to requests from the Minister of Justice and the Office des professions du Québec, the Collège des médecins du Québec adopted amendments to the Code of ethics of physicians in order to comply with the Office's opinion, even though the Code, revised in 2002, already contained several provisions aimed at regulating conflicts of interest and preserving the professional independence of physicians. These amendments to the Code of ethics of physicians were published in the Gazette officielle du Québec and came into force on March 1, 20081.
What is stipulated in the Code of ethics of physicians?
The Code of ethics of physicians now stipulates that a physician must refrain “from accepting, in his capacity as a physician or by using his title of physician, any commission, rebate or material benefit with the exception of customary presents and gifts of modest value.”2
In addition, the Code requires that any agreement entered into by a physician regarding the use of a building or a space for the practice of their profession must be entirely recorded in writing, must indicate that it complies with the Code and must be released to the Collège des médecins du Québec upon request.
What is a prohibited material benefit?
The Code specifies that the use of a building or a space at no charge or at a discount will be considered to be a prohibited material benefit if granted, in particular, by:
- a pharmacist or a partnership or joint-stock company of which the pharmacist is a partneror shareholder;
- a person whose activities are linked, directly or indirectly, to the practice of pharmacy;
- another person in a context that may present a conflict of interests, whether real or only apparent.
Whether a rent is fair and reasonable is determined as a function of local socioeconomic conditions at the time it is fixed.
It should also be noted that an agreement or lease must not contain conditions that affect the physician's professional independence, in particular by regulating the act of prescribing or patient referral following a prescription.
An agreement entered into by a physician with a professional or a natural or legal person who engages in the sale of goods, products, medications or apparatus prescribed by the physician must provide for the payment of a fair and reasonable rent so as not to be considered a material benefit prohibited by the Code.
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The written agreement
The written agreement must contain, at a minimum, the following points:
- the names of the parties;
- the rent per square foot, per period of occupancy or as a percentage of the physician's billings;
- a statement by the physician to the effect that the obligations arising from the agreement comply with Code of ethics of physicians;
- a clause authorizing the release of the agreement to the Collège des médecins du Québec at the request of one of its officers.
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What is a fair and reasonable rent?
A physician who, for their practice, rents space from a pharmacist, or from a person associated with the practice of pharmacy or engaged in the sale of goods prescribed by the physician, must ensure that the rent is reasonable in relation to the socioeconomic conditions of the region and the nature and intensity of the services provided. The calculation of the rent could be based on an hourly rate, an area of use or a percentage of the fees charged by the physician.
This caveat also applies to physicians in an office-based group practice, even if they are not themselves the signatory of the lease.
Rent must never be calculated based on the number of prescriptions written, nor on the cost of the medications or treatments prescribed or referrals made. In addition, the number of patients seen should not influence the amount paid; thus, if the rent is a percentage of the fees charged by the physician, it cannot be associated with a minimum number of patients to be seen in a given period.
It should also be noted that, when renewing a written agreement, the physician must ensure that it is still fair and reasonable, particularly in relation to the socioeconomic conditions of the region and the nature and intensity of the services provided.
In conclusion
Any physician who has entered into an agreement regarding the use of a building or a space in order to practice the medical profession must ensure the agreement is entirely recorded in writing, that it includes a statement by the physician to the effect that the obligations arising from the agreement comply with the Code of ethics of physicians as well as a clause authorizing the release of the agreement to the Collège des médecins upon request.
The Collège des médecins is firmly convinced that these ethical obligations will be respected by physicians. However, in order to fulfil its mission of protecting the public, it may use the means at its disposal to intervene in situations where professional independence is threatened or may be jeopardized.
1 It should be noted that section 72 of the Code of ethics of physicians, which stipulates, among other things, that the agreement must be recorded in writing, came into force on December 4, 2008 and was amended on January 7, 2015.
2 Code of ethics of physicians, s. 73(3).