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Information from the Practice Advice Service

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The Practice Advice Service provides information to College members and members of the public regarding relevant Legislation, Regulations, Standards of Professional Conduct, 2017, and other Guidelines. Answers are provided by College staff in response to specific inquiries and may not be applicable or generalize to all circumstances. Information is provided to support College members in exercising their professional judgement and is not an appropriate substitute for advice from a qualified legal professional.

Queries

During the third quarter of the year (December 1, 2021- February 28, 2022), the College’s Practice Advice Service addressed 412 inquiries. The five most common topics queried during this period, in descending order, were:

  1. Mobility and Practice in Other Jurisdictions; mostly relating to member practice outside of Ontario
  2. Supervision, primarily of related to the supervision of non-members
  3. Member authorized areas of practice, client populations and competence
  4. COVID-19 related concerns
  5. The following three areas were all tied for fifth place: Confidentiality; Professional Relationships (primarily multiple relationships); Assessment Practices (primarily test administration)

Answers to many of these queries can be found on the Professional Practice FAQ page of the College website which includes the following recent additions.

On-line Practice

Q1:  As a member of the College, I am considering closing my physical office and offering exclusively virtual services.  Is this permitted and what things should I be considering?

Q2:  As a member of the public, I would like to know why the College does not require members to see individuals in person, particularly those for whom virtual services would be considered less than optimal?

A:     With the relaxation of pandemic-related restrictions on in-person services, some members are exploring whether to return to in-person service delivery or to continue providing all services virtually. There is no specific prohibition against offering on-line services. Members must use their professional judgment in deciding whether to offer in-person vs. virtual services, taking into consideration the needs of each individual seeking services and the available evidence regarding efficacy.

Members are expected to provide services in a safe and effective manner. If a member wishes to restrict their practice to virtual services, they must decide which populations and problem areas can be effectively assisted without in-person contact, and under what circumstances this would be appropriate. 

There is no ‘one size fits all’ when it comes to planning service delivery in psychology. It may be that some clients are more comfortable with on-line services and might be more likely to engage in services provided via technology and some intervention models may lend themselves to on-line delivery more than others. Members should also consider some concerns that have been raised about services delivered via technology. These include:

  • loss of many visual cues and other sensory inputs which are less accessible via the computer screen or telephone than when physically present with a client;
  • increased risk to breaches of confidentiality;
  • increased need for vigilance concerning professional boundaries and personal privacy; and
  • issues of equity, as some clients will not have access to technology, sufficient familiarity and/or competence in using it, and/or the necessary adequate privacy.

Members providing virtual care must adhere to all of the Standards of Professional Conduct, 2017 including, but not limited to, Standard 15, Use of Technology in the Provision of Psychological Services. An additional resource members may find useful is the American Psychological Association’s Guidelines for the Practice of Telepsychology.  This is a helpful guide in reflecting upon the delivery of services via technology.  Some of the areas addressed in the article are the need to: regularly monitor and assess the progress of the client/patient to determine if the continued provision of telepsychology services remains appropriate and beneficial; discuss any concerns with the client/patient; and appropriately terminate remote services and provide assistance in arranging alternative services, if necessary.

If a member initially agreed to provide in-person services to a client; transitioned to on-line services during the pandemic; and wishes to continue with on-line services beyond the point at which it seems necessary, this can be problematic if the client wishes to return to in-person services. In such a situation, a member may decide to terminate services against a client’s wishes, but should be mindful of the section 1.8 of O. Reg. 801/93: Professional Misconduct Regulation which sets out the manner in which one can do so that would not be considered professional misconduct.

Disclosure of Third-Party Information in Records

Q:     I have been asked to release client records which contain information about multiple parties. In this case, one member of a family wishes to gain access to family therapy records which contains information about other individuals of which some members of the family are not aware. Are there rules about what I must, or may, redact?

A:     The answer to this question requires interpretation of legislation and College staff are not qualified or authorized to provide legal advice. Members who are considering refusal of a specific request for information may wish to obtain independent legal advice, given that release of confidential information, or the refusal to do so, can be a high-stakes decision for all concerned. The following information may be of assistance in obtaining legal consultation.

The Personal Health Information Protection Act, 2004 (PHIPA) sets out the applicable rules to be considered when addressing a request for personal health information.

Personal Health Information is defined, in section 4.(1)(a) of the Act, as information that “relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family. . .”

Section 1 (b) of PHIPA states that one of the purposes of the Act is “to provide individuals with a right of access to personal health information about themselves, subject to limited and specific exceptions set out in this Act”. The Act also provides that information an individual is entitled to access can be provided to another party, with the consent of the individual or of the individual’s authorized substitute decision-maker.

Whenever faced with a decision about whether to provide access to information contained in a client record, it is a good idea to review the list of exceptions to the requirement to do so.  These exceptions are set out in in Section 52(e) of the Act where one is not required to allow access to information if,

(e)  granting the access could reasonably be expected to,

  1. result in a risk of serious harm to the treatment or recovery of the individual or a risk of serious bodily harm to the individual or another person,
  2. lead to the identification of a person who was required by law to provide information in the record to the custodian, or
  3. lead to the identification of a person who provided information in the record to the custodian explicitly or implicitly in confidence if the custodian considers it appropriate in the circumstances that the identity of the person be kept confidential;

The Act, section 52(2) goes on to say that a health information custodian may provide only parts of a person’s record “that can reasonably be severed from the part of the record to which the individual does not have a right of access”. When a decision is made to sever part of a file before releasing the record, section 54 of the Act provides specific guidance about how to do this.

The Information and Privacy Commissioner of Ontario recently considered a complaint about an agency’s refusal to grant one family member access to the entirety of a family’s therapy records. In PHIPA Decision 158, the Commissioner found that the Personal Health Information (PHI) of each family therapy participant is theirs alone and not PHI of the other therapy participants. They went on to say that family therapy records may contain “communal” or “shared” information that can form part of each participant’s PHI. Communal or shared information was described as information about family health history, overall family relationships or dynamics, as well as general themes that arose in the course of family therapy.

The Commissioner ultimately decided that the complainant’s right of access under PHIPA was limited to only to PHI that can reasonably be severed from the records. The Decision explains that the Act is intended to enable individuals to access information about their family health history allowing them to make informed decisions about their own health care but that anything beyond shared or communal information, may have been collected with an expectation that it would remain confidential. The Decision further explained that this best respects the confidentiality of that information; fosters trust between family therapy participants and custodians; promotes participant autonomy over access to their own personal health information; and promotes candid discussion and unguarded participation in family therapy sessions.

The Decision indicated that the right of access to information is limited by section 52(3), of the Act, which provides that an individual will only have a right of access to an entire record if the record is “dedicated primarily” to their personal health information. The following examples of factors to consider in determining whether a record is “dedicated primarily” to the personal health information of a requester are provided:

  • the quantity of personal health information of the requester in the record;
  • whether there is personal health information of individuals other than the requester in the record;
  • the purpose of the personal health information in the record;
  • the reason for creation of the record;
  • whether the personal health information of the requester is central to the purpose for which the record exists; and
  • whether the record would exist “but for” the personal health information of the requester in it.

The following “best practices” are suggested within the Decision:

  1. At the outset of therapy, establish ground rules for what can be discussed, what information will be recorded, and who will have access to the records;
  2. Document this understanding in the health record;
  3. Identify documents (including chart notes) that relate to one participant and those that relate to all participants; and
  4. When considering requests to access family or group therapy records, refer to documented informed consent and other records to identify participants’ expectations, and categorize records as communal or relating to one or more participants before granting access to any records.