Information From the Practice Advice Service

QUERIES

During the first quarter of this year (June 1, 2022 –  August 31, 2022), the College’s Practice Advice Service addressed 394 queries. 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 concerning the supervision of non-members
3. Release of and Access to Information, mostly relating to the client’s right of access and substitute decision-making, particularly with respect to children’s’ records
4. Records, mainly related to retention and destruction of records, file contents, Health Information Custodians and electronic record keeping
5. Fees and Billing, the most common queries related to the setting of fees

It is interesting to note that the list of most common topics queried has remained the same as those addressed in the previous year.

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.

Feedback and Timing of Assessment Feedback to Clients and Other Parties

Q:  Must members debrief with the individual who is the subject of an assessment, even if they are not the “customer” or person paying for the assessment and, if a client has provided consent for the disclosure of assessment results to another party prior to the availability of the results. Can this be considered fully informed consent?

A:  This is a situation that requires some definitional framing, before looking at the issue of feedback.

The Standards of Professional Conduct, 2017 define a “client” as:

 an entity receiving psychological services, regardless of who has arranged or paid for those services. A client can be a person, couple, family or other group of individuals with respect to whom the services are provided. A person who is a “client” is synonymous with a “patient” with respect to the administration of the Regulated Health Professions Act (1991). 

This means that the person who has been assessed is, from the perspective of the College, the client. Members are expected to be proactive in ensuring that clients are aware of their rights, including the right to access information about themselves, in accordance with the following Standard:

3.2 Clarification of Confidentiality and Professional Responsibility to Individual Clients and to Organizations

In situations in which more than one party has an interest in the psychological services rendered to a client or clients, members must, to the extent possible, clarify to all parties, prior to rendering the services, the dimensions of confidentiality and professional responsibility that must pertain in the rendering of services.  The provision of psychological services on behalf of an organizational client does not diminish the obligations and professional responsibilities to individual clients.

Practical Application: The need for clarification may arise, for example, in the provision of an assessment of a claimant in an insurance matter, where the insurer has retained the assessor. Regardless of the wishes of the insurer, members are under all of the obligations that pertain to a client within these Standards and the relevant privacy legislation.   This includes providing access to the individual or their authorized representative to their personal information and any reports or records which members have in their possession unless prohibited by law or they are otherwise permitted to refuse access.  

The requirement to provide feedback, upon request by the client, is addressed in Ontario Regulation 801/93 Professional Misconduct:

The following are acts of Professional Misconduct:

…
13. Failing to provide a truthful, understandable and appropriate explanation of the nature of an assessment, intervention, or other service following a client’s request for an explanation.

…
21. Failing, without reasonable cause, to provide a report or certificate relating to a service performed by the member, within a reasonable time, to the client or his or her authorized representative after a client or his or her authorized representative has requested such a report or certificate.

Similarly,  members are required to make information, including assessment results, available to all clients and authorized representatives, under the following Standard:

8.2 Access by Client or Client’s Authorized Representative

Members are responsible for ensuring that access to an individuals’ personal or personal health information is provided to the individual and/or their authorized representative unless prohibited by law or the member is otherwise permitted to refuse access.

While it may at first seem possible to find a technical “out” to providing feedback to someone who has not actually requested it, the Personal Health Information Protection Act, 2004 (PHIPA) specifies that consent to disclose information must be obtained from the person who has been assessed (or an authorized Substitute Decision Maker),  and only if they have knowledge of the purposes of the disclosure. The consent must also be related to the information to be disclosed. In other words, there is a positive responsibility on the part of the Health Information Custodian to ensure that the client has been provided with an opportunity to make a free and informed decision about the disclosure of the information that would be disclosed.

Authorized Area of Practice

Q:  I am an autonomous practitioner with declared competence in clinical psychology working with children, adolescents, and adults. May I provide parenting consultation services, where the parents, but not the child, are my clients?

A: The College has not identified “parents” as a specific population to whom one needs particular authorization to consult to or otherwise work. The answer to your question then is:  It depends upon the specific focus of the consultation.

If the parenting work involves psychoeducation, that is, providing parents with information about child development and advice about how they can address childhood difficulties, then it would make sense that a practitioner has been deemed to have the requisite knowledge, training, and experience required to understand the developmental factors at play with children/adolescents being ‘parented’. In this situation, authorization to work with children and adolescents would be expected.

If the focus of the work is to help parents improve their relationship with their child, then specialized knowledge, skill, and experience in the area of family dynamics is important. For this reason, authorization to work with families would be necessary.

Similarly, if the focus of the work is helping the parents work together as a couple, then authorization to work with couples, would be appropriate. Likewise, if the work involves assisting an individual parent who for personal reasons experiences challenges in interacting with a child and this requires them to receive individual therapy to address their own difficulties, authorization to work with individuals within that parent’s own age group would be required.  Since you are authorized to work with adults, assuming that the parents are adults, then this would not be problematic.

Basically, one size can’t fit all, and the system of authorized populations allows for flexibility because of all of the possibilities with this kind of work.

Child Abuse Reporting – Other Jurisdictions

Q:  I have been notified by a client who resides in Ontario, that during a visit to see their family in the United States they observed an incident that led to a suspicion that a child was in need of protection. Is there a statutory duty to report this to child protection authorities and if so, in which jurisdiction should the authorities be alerted?

A:  Section 125 of the Child, Youth and Family Services Act, 2017 (CYFSA) sets out the duty to report a child in need of protection. It states:

125 (1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall immediately report the suspicion and the information on which it is based to a society. Society is defined in the legislation as an agency designated as a children’s aid society under subsection 34 (1);

In considering this section of the legislation, there are two components to contemplate.  First, there is nothing in the legislation which suggests that the suspected abuse or neglect must have occurred in Ontario to be reportable.  Therefore, one is obligated to make a report regardless of where the suspected concerning behaviour occurred.

Second, the duty to report is to a “society” which the Act states is an agency designated by the Minister of Children and Youth Services as a children’s aid society.  Since the Minister only has the authority to designate an agency as a “society” within Ontario, the obligation to report “to a society” must be to an appropriate agency within Ontario. 

This analysis suggests that if a member has an obligation to report a suspicion of abuse or neglect which occurred outside of Ontario, they would have a duty to report to an Ontario CAS.  It would then be up that agency to determine the best course of action to take but the member would have fulfilled their legislative obligation.

Section  125 also sets out the nature of emotional harm that a child must be experiencing, or which it is reasonably expected would experience, to necessitate a report, if the harm results from, or would be expected to result from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

Photocopying Fees

Q:  It’s my understanding that I may charge reasonable costs associated with the provision of copies of my records to clients who request them. Does this include compensation at my usual hourly rate for the time I spend reviewing the records to determine whether they are suitable for release?

A:  The Information and Privacy Commissioner of Ontario (IPC) recently addressed this issue in PHIPA DECISION 133, October 2020.

The Decision sets out the statutory limits to what one may charge, as follows:

[12]  Under PHIPA, custodians have the discretion to charge a fee for providing an individual with access to their own personal health information. Sections 54 (10) and (11) state:

Fee for access

54 (10) A health information custodian that makes a record of personal health information or a part of it available to an individual under this Part or provides a copy of it to an individual under clause (1) (a) may charge the individual a fee for that purpose if the custodian first gives the individual an estimate of the fee.

Amount of fee

(11) The amount of the fee shall not exceed the prescribed amount or the amount of reasonable cost recovery, if no amount is prescribed.

The legislation does not prescribe an amount for “reasonable cost recovery”. In providing Reasons in Decision 33, the Adjudicator for the IPC states, previous IPC orders and PHIPA Decision 17 conclude that the 2006 fee scheme set out in the proposed regulation to PHIPA provides the best framework for determining the amount of “reasonable cost recovery” under section 54(11) of PHIPA. 

2006 Fee Scheme
Flat rate  including: – 15 minutes of review – 20 pages of photocopies – packing and mailing the records – administrative tasks	$30.00
Photocopies or computer printouts after the first 20 pages	$0.25 per page
Review of the records after the first 15 minutes	$45 for every 15 minutes of review by a health information custodian after the first 15 minutes.

The Decision provides a detailed analysis of the particular case and anyone facing this sort of issue is advised to read the entire Decision. For ease of reference, here is an excerpt from the Reasons that the Adjudicator gave for a finding that the health professional’s charges were excessive:

[44]  In PHIPA Decision 111, I determined that not every type of record containing personal health information subject to PHIPA requires the same amount of time for review. … records with standard, predictable content require only a straightforward review with minimal time needed to determine whether they contain information to which access may be refused. For these types of records, I determined a review time of five seconds per page was appropriate. I found that other records, which by their nature, have the potential to contain information to which access may be refused, require a more detailed and lengthy review. For these types of records, I determined a review time of two minutes per page was appropriate… I have no evidence before me to suggest that any of the records at issue have the potential to contain personal health information that may required a more detailed and lengthy review…

[46]  As a result, and in the absence of evidence to the contrary, in my view it is reasonable to conclude that the 27 pages of responsive records would require only a straightforward review at five seconds per page. Accordingly, I find that a reasonable amount of time for the custodian to review 27 pages of records containing the complainant’s own personal health information is encompassed in the first 15 minutes of review that are accounted for in the set fee of $30 per request. Given the nature and number of responsive records, I find that when the 2006 fee framework is applied, the custodian is not permitted to charge review fees in excess of what is accounted for in the set fee of $30. I accept that, in the circumstances, this amounts to “reasonable cost recovery” as required by section 54(11) of PHIPA.

While this reasoning is not enshrined in legislation or in formal guidelines, the precedent set by this, and previous Decisions should be considered by members when they set fees for the copying of records.

Consultation Records

Q:  I am engaging in a formal, ongoing consultation relationship where I will be providing consultation to a social worker.

1. Is formal notetaking by me required in this type of occasional consultation relationship?
2. Is there any issue with respect to consulting to a member of a different profession?

A:  Although there are no specific requirements identified with respect to formal notetaking in a consultation relationship, there are specific requirements with respect to services to Organizational Clients. The Standards of Professional Conduct, 2017 define an Organizational Client as:  an organization, such as a business, community or government that receives services that are directed primarily at the organization, rather than to the individuals associated with that organization.

If the social worker is thought of as operating a business, it is the business (as opposed to the social worker’s clients) to whom you are providing consultation. This would mean the records are Organizational Client Records. The Standards of Professional Conduct, 2017 set out the following requirements for Organizational Client records as follows:

9.3 Organizational Client Records

1. Members must keep a record related to the services provided to each organizational client.
2. The record must include the following:
3. the name and contact information of the organizational client;
4. the name(s) and title(s) of the person(s) who can release confidential information about the organizational client;
5. the date and nature of each material service provided to the organizational client;
6. a copy of all agreements and correspondence with the organizational client; and
7. a copy of each report that is prepared for the organizational client.

Although the “nature of each material service provided” is not described, it can be reasonably understood that this means information about the issues discussed and advice given should be recorded. This would apply to any consultation, including those involving members of other professions.