- Information on Mandatory Reporting or Sexual Abuse by Health Professionals
- Mandatory Reporting: Additional Reporting Obligations, e-Bulletin – Volume 6, Number 2, April 2015
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:
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. 2004, c. 3, Sched. A, s. 40 (1).
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.
You must file a mandatory report no later than 30 days after the reporting obligation has been triggered.
You must file a mandatory report immediately if you believe that:
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: