The Practice Advice Service of the College provides information to members of the College and members of the public regarding relevant Legislation, Regulations, Standards of Professional Conduct, and other Guidelines. Answers are provided 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.
NATURE OF INQUIRIES
Between April 1, 2021 and June 30, 2021, the College received and responded to 530 inquiries. During this period, 11 of these queries were related to practicing during the COVID-19 pandemic.
Almost all of the pandemic related inquiries pertained to how to appropriately return to in-person services and whether it was permissible to require that clients to be seen in person show proof of vaccination.
Now that things are “opening up” in Ontario, may we return to in-person services in non-emergency and non-urgent circumstances and if so, may we require proof of vaccination?
Throughout the pandemic, members have been permitted to use their professional judgment to decide when it was necessary to see clients in-person. The College wishes to advise members that Ontario’s Chief Medical Officer of Health recently rescinded Directive #2 for Health Care Providers (Regulated Health Professionals or Persons who operate a Group Practice of Regulated Health Professionals).This Directive had been amended and re-issued in mid-April due to the increasing COVID-19 case counts, hospitalizations, and ICU admissions. Rescinding of Directive #2 means that non-urgent and non-emergent procedures may be gradually resumed by health care providers and health care entities who were subject to that Directive. This includes in-person services that are non-essential or non-emergent.
In making this decision, the Chief Medical Officer of Health advised that all health care providers should continue to follow the guidance issued by the Ministry of Health in the COVID-19 Operational Requirements: Health Sector Restart. College members are advised to review this document to ensure an understanding of relevant requirements to return to in-person service provision appropriately and gradually.
In returning to the provision of in-person services, the College urges members to take a conservative approach to minimize the risk of community spread as much as reasonably possible, particularly with the emergence of new variants of the virus and localized outbreaks.
Proof of Vaccination:
Some members have asked whether they may require clients wishing to receive in-person services to demonstrate that they have been vaccinated. The Ontario Human Rights Commission has published a document entitled COVID-19 and Ontario’s Human Rights Code – Questions and Answers to provide some guidance to individuals, practitioners and employers. The following section from this document may be of assistance. Please note that this is the published position of the Ontario Human Rights Commission and the College is not qualified or authorized to offer interpretation of the Ontario Human Rights Code. Members seeking specific guidance or further clarity on how to interpret their own responsibilities under the Code are encouraged to seek independent legal advice.
Ontario Human Rights Commission
21. Can my employer or any service or housing provider require proof that I’ve received a COVID-19 vaccine?
- Receiving a COVID-19 vaccine is voluntary.
- At the same time, the government of Ontario has said they plan to issue proof-of-vaccination cards to people who receive a COVID-19 vaccine who may be required to take part in some activities.
- Requiring proof of vaccination to ensure fitness to safely perform work, or protect people receiving services or living in congregate housing, may be permissible under the Code if the requirement is made in good faith and is reasonably necessary for reasons related to safety.
- The Code grounds of disability and / or creed may be engaged when employers, housing or other service providers impose medical testing or treatment requirements, including proof of vaccination.
- Under the Code, organizations have a duty to accommodate people who may be unable to receive a COVID-19 vaccine, for reasons related to disability or creed, unless it would amount to undue hardship based on cost or health and safety.
- The right to be free from discrimination can be limited under the Code, where, for example, broader health and safety risks are serious, like in a pandemic, and would amount to undue hardship. The OHRC and relevant human rights laws like the Code recognize the importance of balancing people’s 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.
- Everyone involved should be flexible in exploring whether accommodation is possible, including alternative ways a person might continue to safely work, receive a service or live in congregate housing without being vaccinated.
- Organizations should make clear the reasons why proof of vaccination is needed in the circumstances, and ensure prior, informed consent.
- Organizations should only request and share medical information, including proof of vaccination, in a way that 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 or living in congregate housing, and accommodate any individual needs.
- No one should experience harassment or other discriminatory treatment based on a Code ground because they are unable to receive a vaccine.
- In addition, workers have rights and employers have obligations for workers’ health and safety under the Occupational Health and Safety Act. Visit the Ontario Ministry of Labour, Training and Skills Development website for more information, including how to contact the Ministry.
The College will continue to provide updates to members as further information becomes available.
Between April 1, 2021 and June 30, 2021, the top five areas about which members and others sought advice are listed below, in order of frequency.
Provision of Services Across Jurisdictions, Unrelated to the Pandemic; queries were almost equally divided between those from members of the College wishing to provide services in other jurisdictions and those registered in other jurisdictions seeking to provide services in Ontario.
Guidance was provided to members by referring them to Section 15 of the Standards of Professional Conduct, 2017. This Standard specifically addresses telepsychology services; however, the same principles apply regardless of the medium of service delivery. Those considering providing services to an individual located outside of Ontario are advised to review this Standard before agreeing to do so.
Member Authorized Practice: queries included those about authorized areas of practice and/or authorized client populations, as well as competence to provide specific services within one’s authorized areas of practice and client populations.
Members who were unsure whether they were authorized to provide a specific service to a particular individual were often assisted by the answers to the following Frequently Asked Questions which are published on the College website in addition to many others:
- May a member authorized in Clinical Neuropsychology conduct a psychoeducational assessment, or must they be authorized in School Psychology?
- My authorized area of practice includes Clinical Psychology with adults. I recently received a referral to provide service to an 18-year-old. Would it be outside of my area of competence to see this person although she could be considered an adolescent?
Termination of Services; queries received were related to planning for leaving or closing a practice and designation of a successor health information custodian. Hopefully, in most cases, the termination or transfer of services is a cooperative process between the member and client. Where this is not the case, guidance about how to terminate services in a permissible manner is contained in section 1.8 of the Professional Misconduct Regulation. Members may also find guidance with respect to the appropriate transfer of records in the April 2018 e-Bulletin.
Substitute Consent and Right of Access to Information; these queries were related to separated parents’ right to information about children. Information about this is provided in a detailed Q&A below.
Supervision; specific queries related to the supervision of the controlled act of psychotherapy, non-regulated individuals and of members of other regulated professions. The information needed to answer most of these queries is available in the Frequently Asked Questions section of the College website, including:
- Why can services which are within the scope of practice of psychology be provided by unregulated practitioners without supervision, but if provided under my supervision, be subject to such rigorous standards?
- Is it necessary to have supervision agreements when a supervisee is not providing health services, as would be the case if the supervisee were exclusively conducting research under supervision?
- In our setting we have agreements with educational institutions regarding the students they provide to us for supervision. These agreements are analogous to those used in employment contexts in which agreements are made between the supervisor and employer and between the supervisee and employer but not directly between the supervisor and supervisee. Would such arrangements be considered sufficient for the purposes of the Standards or would it also be necessary to have supervision agreements directly between supervisors and supervisees?
- Would you please provide templates of supervision and consultation agreements that we may modify for use in our own practices?
- The Standards require information that will permit identification of each client discussed at each supervision meeting. What about client confidentiality?
- My supervision notes include personal health information about clients my supervisee is working with. Am I required to provide supervision notes containing client information when a request for client records is made?
- Does a non-member who is a member of another professional regulatory College, or who is not a member of any regulated profession, have to be seeking registration in a College to provide counselling under my supervision?
- I train and have some input into the administration of tests and counselling by members of other regulated health professions. These people are not, however, accountable to me and they are approved by the test publishers to use any test they administer. What are my obligations with respect to these activities?
- Training within a consultation relationship can be highly structured and lengthy and can feel like direction. Would a relationship which includes intensive training with respect to client care be considered a form of supervision?
- I work alongside Behavior Therapists and I am a resource in the agency to them. In some cases, I provide case specific recommendations. In other cases, I discuss general issues that come up without referring to specific clients and advise on processes for the therapists to follow. I do not evaluate their work and they are not accountable to me. Am I correct in believing that I am not in a supervisory relationship with them?
The following composite Questions & Answers illustrate principles from recent queries that have wide application.
Who has the right to authorize services or access to information about a child when parents are separated?
A: In the practices of most members, the answer to this question can be found in the Health Care Consent Act, 1996 (HCCA) and the Personal Health Information Privacy Act, 2004 (PHIPA).
One must first establish whether the child has the capacity to make their own independent decisions in these situations. The HCCA and the PHIPA do not specify chronological ages of consent but instead set out the test for determining whether any individual, including a child, is capable of making their own health care decisions. The determination of capacity must be made by the Health Care Provider or the Health Information Custodian, as the case may be. The analogous tests for capacity to be applied are set out in section 4 of the HCCA and section 21 of PHIPA, respectively.
If the child is not believed to be capable, a substitute decision-maker for the purpose of the HCCA is generally deemed to play the same role with respect to PHIPA.
Section 20 of the HCCA and Section 26 of PHIPA provide specific advice with respect to the hierarchy of potential decision-makers when a child is not believed to be capable of making their own decisions. It also sets out the mechanisms for deciding what must happen when a person with the right to make decisions is not available or willing to assume decision-making responsibility. The legislation also addresses what to do if there is conflict between two individuals having equal ranking in the hierarchy.
Generally, a parent can give or refuse consent on behalf of an incapable child unless this authority has been lawfully granted to a children’s aid society or other person. If both parents do not have the same rights under an Agreement or Order, a parent with custodial rights prevails over a parent who has only a right of access. In situations where the statute does not spell out clearly which parent is entitled to make the decision, statutory interpretation is necessary. Given the high stakes for all individuals involved, the most prudent course of action is to obtain independent legal advice.
The College’s August 2005 Bulletin provides additional guidance with respect to this issue.
Who “Owns” the Clinical Record? In a group practice comprised of members authorized for autonomous practice, who can access, contribute to, and hold copies of the clinical record?
A: The answer to this question depends upon various decisions made by the organization, including who is the Health Information Custodian (HIC), a term which is used and defined in the Personal Health Information Protection Act, 2004 . For the purposes of answering this question, either a health care practitioner or a person who operates a group practice of health care practitioners may be a HIC. There may only be one HIC and it should be the person who will have ultimate responsibility for the collection, use, disclosure, security, and retention of the information. .
The HIC must ensure that their identity is made clear to all concerned, including the client. A client must provide informed consent for a specified individual or organization to collect information about them.
A Health Information Custodian may have an “agent”. This is defined in PHIPA as a person that, with the authorization of the custodian, acts for or on behalf of the custodian. The HIC may, for example, appoint the service provider working in the HIC’s organization to be their agent.
Copies of information may be shared with those with a need to have the information in their possession but may only be provided to anyone other than the HIC or agent with client consent. The number of copies of the same information is directly correlated to the risk of loss or unauthorized access to the information. The fewer number of copies there are of a document, the lower the risk of loss or unauthorized disclosure.
There is no prohibition against storing information in more than one file/location. Standard 9.1 of the Standards of Professional Conduct, 2017 requires that a member must make best efforts to ensure that the member’s records are complete and accessible; this applies whether the record is kept in a single file or in several files and whether the record is housed in one location or at several locations. It is suggested that when records are not maintained in one file or location that a note is placed in each location indicating the location(s) of any other information.