Over the course of the pandemic, the College has received many practice-related questions from members on a variety of topics. Advice or guidance has been provided as it becomes available, but the College is often not able to offer direct answers to specific questions.
Whether during this very difficult time when we are all dealing with COVID-19 or prior to this, the College has believed that members are responsible for, and in the best position to decide, the nature of services which can be most ethically and effectively provided to clients. For the past 20 months, members have been required to take on the added responsibility of determining how to best provide services in a manner that limits the spread of COVID-19. Whether acting as a private practitioner, a group practice employer or staff in a facility or school, it’s likely that everyone is experiencing some degree of fatigue and distress because of the ongoing updating to available information and subsequent re-evaluation and decision-making involved.
While many guidelines have been offered, unfortunately it is impossible to establish “rules” which are specific enough to cover all services, all situations, all clients, in all locations, at all times. The College is continuously monitoring the information provided by the Ontario government and various agencies in our efforts to assist members to make their best professional judgments.
Well Reasoned Vigilance and Risk Mitigation
The Ontario Chief Medical Officer of Health continues to advise that all Health Care Professionals (HCPs) should follow the guidance issued by the Ministry of Health in the COVID-19 Operational Requirements: Health Sector Restartfirst published in June 2020. College members are advised to review this document to ensure an understanding of relevant risk mitigation strategies to allow appropriate return to in-person service provision.
The purpose of the COVID-19 Operational Requirements is to support physical distancing and minimize contact of persons who may have COVID-19 with health care settings (i.e., other HCPs and patients) as much as possible. As noted,
- Where possible, HCPs are encouraged to limit the number of in-person visits for the safety of health care providers and their patients;
- As part of the gradual restart of services, HCPs are in the best position to determine which services can continue to be offered remotely (virtually) and which services can safely resume in-person, assuming the necessary preconditions as set out in this Operational Requirements document are met;
- All HCPs are encouraged to implement a system for virtual and/or telephone consultations when and where possible; and
- HCPs should conduct an initial consultation over the phone, video, or secure messaging to determine if a virtual/telephone consultation is appropriate or whether an in-person appointment is necessary.
In-person services are permitted, at the discretion of the member, but are not required. In deciding which services will be provided in-person, members should consider whether the risks of offering in-person services outweigh the benefits of providing the service remotely, taking into account all available risk mitigation strategies.
The ability to mitigate risk is a significant factor in determining how best to deliver services. Information currently available from medical experts suggests that vaccination mitigates the risk of contracting, and therefore spreading COVID-19, and that being vaccinated may limit adverse consequences should one contract COVID-19.
Members should be aware that the Ministry of Health recently published an update to the COVID-19 Patient Screening Guidance Document. Version 5.0 (August 26, 2021) of the screening guidelines now incorporate consideration of a person’s vaccine status into the determination of whether in-person contact is safe. As widely reported in the media, various institutions have begun to require individuals to furnish proof of vaccination before allowing them onto their premises.
Recently issued Ontario Regulation 577/21 (Rules for Areas at Step 3 and at the Roadmap Exit Step), under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 requires an organization to comply with any advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health, or by a medical officer of health after consultation with the Chief Medical Officer of Health:
Members should review the information provided by the Medical Officer of Health in their own jurisdiction to determine what each is advising, recommending, and instructing.
For example, Toronto’s Medical Officer of Health has recently issued the document COVID-19 Guidance: Employers, Workplaces & Businesses for businesses within its jurisdiction. In Toronto, those operating business premises are now required to consider whether it is safe to permit unvaccinated individuals to enter their premises. While the guidance for those in Toronto focusses on those employing others, it stands to reason that sole practitioners, even if not employers, would be entitled to protect themselves and their clients to the same extent as they would if they had employees.
The Toronto recommendations suggest that consideration of the following should inform vaccination policies:
- vaccination status of the individuals concerned;
- whether those on the premises can keep at least two metres apart;
- how long and how often close contact occurs on the premises;
- whether adequate physical barriers, good ventilation, and personal protective equipment (PPE) are in use;
- risk for severe illness from COVID-19 to those involved, including reduced immunity due to age, pre-existing health conditions or medical treatments; and
- alternatives to in-person contact.
Currently, there do not appear to be any precedent decisions regarding a requirement for vaccination or disclosure of vaccination status by the Ontario Human Rights Commission or the Courts. The Ontario Human Rights Commission has published advisory information (COVID-19 and Ontario’s Human Rights Code – Questions and Answers) which members may wish to consider. The Commission provides this information for those who wish to rely on it. The College is not qualified or authorized to offer interpretation of the Ontario Human Rights Code and members seeking further, or more specific guidance or further clarity on how to interpret their own responsibilities under this Code are encouraged to seek independent legal advice.
Among other things, the Commission states that the Code and other relevant human rights laws recognize the importance of balancing employees’ and service recipients’ right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks and treatment associated with COVID-19. Information from the Commission appears to recognize that there are circumstances in which one may request and utilize proof of vaccination, as long as it intrudes as little as possible on a person’s privacy and does not go beyond what is necessary to ensure fitness to safely perform work, or protect people receiving services, while emphasizing the duty to reasonably accommodate any individual needs. The information suggests that requiring a person to wear a mask or prove vaccination may represent a reasonable and bona fide requirement for health and safety reasons, especially when serious risks to public health and safety are shown to exist, like during a pandemic.
The College expects members to make thoughtful, well-reasoned judgements based on the best information available to them. Undoubtedly, members will make different judgments; that’s the nature of judgment. Every situation is different and the things to consider include:
- The current medical situation
- The needs of each client
- The nature of the service required and whether it can be effectively delivered virtually
- Any vulnerabilities of the member, their staff, families, and communities
The College supports the right of members to make their own well-informed and well-reasoned professional judgments regarding what measures they believe are required to allow in-person contact considering their own health and safety as well as that of their staff and clients.