Mandatory and Non-Mandatory Reporting

Originally published in Volume: 1 Issue: 1 of HeadLines.

In Ontario, there is no duty to warn, if one interprets “duty” to mean a mandatory requirement. That is, there is no obligation to report concerns that a client/patient may pose a danger to themselves or others. It is important to understand however, that this does not mean that one cannot, or should not, take some action in the face of such serious concerns. The Personal Health Information Protection Act, 2004 (PHIPA) sets out a member’s obligations with respect to maintaining the confidentiality and privacy of personal health information. The legislation does provide an exception to the duty of confidentiality where a member finds it necessary to notify someone of a serious risk to a person’s safety. PHIPA states:

A key concept within this section of PHIPA is contained in the words “may disclose”. PHIPA does not oblige a member to make such disclosures, but it permits one to do so “for the purpose of eliminating or reducing a significant risk of serious bodily harm”. With this purpose in mind, PHIPA reinforces a member’s need to use their knowledge of the client/patient and their professional judgement to determine the best, most appropriate, action to take.

Originally published in Volume: 1 Issue: 1 of HeadLines

The legislation does not direct a member to contact any particular organization, institution or individual should it be determined there is a need to take some action. In considering a breach of confidentiality under section 40 of PHIPA, it is important that, in keeping with the stated purpose, the disclosure be made to someone who is in a position to ‘eliminate or reduce a significant risk of serious bodily harm’.

When faced with serious concern about a client’s/patient’s risk of harm to self or others, members have to make the difficult judgment about who to contact in this time of crisis. When initially reviewing the limits of confidentiality regarding risk of harm with a client/patient, members may wish to discuss this with the client/patient. That is, engage the client in a discussion of who they believe should be called in the event of a crisis. The client/patient may identify a family member, other health care provider, close friend, member of the clergy, a community worker, an organization with which they have been involved or some other individual. While the ultimate decision rests with each member based on their best clinical judgement, taking into account their understanding of the client/patient and the particular situation, this previous discussion may prove helpful in deciding upon the most appropriate action.

It is important to make a distinction between situations of client/patient risk of harm to themselves or others, often referred to as “duty to warn” and other mandatory reporting obligations. Section 40 of PHIPA does not apply to situations where one has reasonable grounds to suspect that a child is in need of protection or one suspects abuse or neglect in a retirement or long-term care facility. In these situations, mandatory reporting to the appropriate authority is required.

The timelines are set out in the Health Professions Procedural Code, 1991, which is section two of the Regulated Health Professions Act, 1991 as follows:

 Timing of report

(2) The report must be filed within 30 days after the obligation to report arises unless the person who is required to file the report has reasonable grounds to believe that the member will continue to sexually abuse the patient or will sexually abuse other patients, or that the incompetence or the incapacity of the member is likely to expose a patient to harm or injury and there is urgent need for intervention, in which case the report must be filed forthwith.  2007, c. 10, Sched. M, s. 62 (1).

A report must be filed in writing. Please use the College’s mandatory report form available on the College’s website. You may also write to the College directly through fax, mail or email.

It may be that your mandatory obligation to report sexual abuse arises in the course of providing psychotherapy to another regulated health professional. In this case, your report must also contain your opinion, if you are able to form one, as to whether this member is likely to sexually abuse patients in the future.

The Inquiries, Complaints, and Reports Committee (ICRC) decides what to do in each case by thinking about the possible negative outcomes of the member’s conduct. The ICRC thinks about this in terms of “risk.”

The ICRC considers both impact and recurrence risks. Impact risks include those to specific individuals, the general public, and the profession. Recurrence risks include concerns about the member’s conduct history, the practices, processes, or systems the member has in place, and the member’s awareness of the practice concerns identified.

The ICRC uses the ICRC Risk Assessment Framework, below, to help categorize these risks. The Framework also helps the ICRC identify the range of appropriate outcomes in relation to the risks.

The outcomes available to the ICRC after the investigation of a complaint or report include:

• No further action: A panel may decide to take no further action if it decides that the member’s conduct poses no risk to the public.
• Advice: A panel may give advice if it identifies low risks. Advice is meant to help the member avoid future risks.
• Undertaking: A panel may ask for an undertaking from the member if it identifies moderate risks. An undertaking is remedial and can range from a minor change in practice to having a mentor.
• Caution: A panel may caution a member if it identifies moderate risks. The member must come to the College to receive the caution in person. Cautions are remedial and may include a discussion between the panel and the member. Cautions are not open to the public.
• Specified Continuing Education or Remediation Program (SCERP): A panel can order a SCERP if it identifies moderate risks. A SCERP is remedial and can include a specific course of study.
• Referral to the Discipline Committee: If the ICRC identifies high risks, it may refer the matter to the Discipline Committee for a full hearing.

First, it is good to know that you are helping them to address these issues, as a colleague. It does not appear that you have a duty to report this situation.

There are two situations in which you may have a mandatory reporting obligation, but this does not sound like it is one of them. The two situations are set out in Section 85.2 and Section 85.5 of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991. The first applies to operators of facilities in which a health professional provides services:

 Reporting by facilities

85.2 (1) A person who operates a facility where one or more members practise shall file a report in accordance with section 85.3 if the person has reasonable grounds to believe that a member who practises at the facility is incompetent, incapacitated, or has sexually abused a patient. 

 From your description of the situation, it doesn’t sound like you operate a facility in which this colleague practices, therefore this section would not apply.

The second relevant section of the Code applies to reporting by employers, etc.

Reporting by employers, etc.

85.5 (1) A person who terminates the employment or revokes, suspends or imposes restrictions on the privileges of a member or who dissolves a partnership, a health profession corporation or association with a member for reasons of professional misconduct, incompetence or incapacity shall file with the Registrar within thirty days after the termination, revocation, suspension, imposition or dissolution a written report setting out the reasons.

 Same

(2) Where a member resigns, or voluntarily relinquishes or restricts his or her privileges or practice, and the circumstances set out in paragraph 1 or 2 apply, a person referred to in subsection (3) shall act in accordance with those paragraphs:

1. Where a person referred to in subsection (3) has reasonable grounds to believe that the resignation, relinquishment or restriction, as the case may be, is related to the member’s professional misconduct, incompetence or incapacity, the person shall file with the Registrar within 30 days after the resignation, relinquishment or restriction a written report setting out the grounds upon which the person’s belief is based.

2. Where the resignation, relinquishment or restriction, as the case may be, takes place during the course of, or as a result of, an investigation conducted by or on behalf of a person referred to in subsection (3) into allegations related to professional misconduct, incompetence or incapacity on the part of the member, the person referred to in subsection (3) shall file with the Registrar within 30 days after the resignation, relinquishment or restriction a written report setting out the nature of the allegations being investigated. 2014, c. 14, Sched. 2, s. 12.

 Application

(3) This section applies to every person, other than a patient, who employs or offers privileges to a member or associates in partnership or otherwise with a member for the purpose of offering health services.  1993, c. 37, s. 23.

Once again it does not appear that you would have a reporting obligation unless you are the colleague’s employer and due to concerns of incapacity you terminated their employment or revoked, suspended or imposed restrictions on their privileges to practice or you dissolved a partnership, a health profession corporation or association with them.

Hopefully, with your collegial support, this individual will be able to mitigate the risks to themself and their clients and find relief from their distress. If it appears advisable for your colleague to obtain professional services, then you should consider referring them to an appropriate mental health professional, to avoid becoming involved in a dual relationship.

There are two situations in which members have a duty to report incapacity-related concerns. These are set out are set out in Section 85.2 and Section 85.5 of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991.  Neither of these appear to apply to a situation in which the concern regarding incapacity is with a client.

 If you believe that this individual is putting members of the public at risk you can always make a report to the professional’s College, with their consent.  In addition, Section 40 of The Personal Health Information Protection Act, 2004 also permits you to make a voluntary report, without the client’s consent, if you believe, on reasonable grounds that such a disclosure is necessary as they are putting clients at significant risk of serious bodily harm:

Disclosures related to risks

40. (1)  A health information custodian may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons.

Section 13, specifically 13.2, of the Standards of Professional Conduct, 2017 requires members to responsibly assess their well-being and avoid impairment:

13. Professional Objectivity

13.2 Compromised Objectivity, Competence or Effectiveness Due to Other Factors

A member must not undertake or continue to provide psychological services when personal, scientific, professional, legal, and financial or other interests could reasonably be expected to:

1. a) impair his/her objectivity, competence or effectiveness in delivering psychological services; or
2. b) expose the client to harm or exploitation.

Members are expected to use their professional judgement in considering their personal workload tolerance.  The Quality Assurance Committee had developed a Self-Care Plan to provides some guidance in this area.  The Quality Assurance Program requires that every member formally reflect upon their own need for self-care and mitigate the risk of harm to their own well-being and consequently that of their clients.