Introduction
The Code of Ethics of the Canadian Medical Association advises the following:
35. Recognise that the self-regulation of the profession is a privilege and that each physician has a continuing responsibility to merit this privilege.
37. Avoid impugning the reputation of colleagues for personal motives; however, report to the appropriate authority any unprofessional conduct by colleagues.
Every physician has a role in monitoring professional standards and quality of care. Physicians also have an obligation to keep confidential that which is confided in them by their patients. Nor is it considered professional to recklessly impugn the reputation of another physician. To resolve these tensions the following guideline is provided.
Reporting of Sexual Abuse
Section 52.2 of the Medical Act contains the following provisions:
52.2(1) If a member, in the course of the practice of medicine, has reasonable grounds to believe that another health professional has sexually abused a patient or client of the health professional or the member, the member shall file a report in writing with the governing body of the health professional within 21 days, after the circumstances that gave rise to the reasonable grounds for the belief.
52.2(2) A member is not required to file a report pursuant to subsection (1) if the member does not know the name of the health professional who would be the subject of the report.
52.2(3) A report filed pursuant to subsection (1) shall contain the following information:
(a) the name of the member filing the report;
(b) the name of the health professional who is the subject of the report;
(c) information which the member has of the alleged sexual abuse; and
(d) subject to subsection (4), if the grounds for the member filing the report are with respect to a patient or client of the health professional who is the subject of the report, the name of the patient or client.
52.2(4) The name of a client or patient of a health professional who may have been sexually abused by the health professional shall not be included in a report filed pursuant to subsection (1) unless the client or the patient or, if the client or the patient is incapable, the client's or the patient's representative, consents in writing to the inclusion of the client's or patient's name in the report.
52.2(5) If a member is required to file a report under subsection (1) because of information obtained from the member's patient, the member shall use their best efforts to advise the patient of their obligation prior to filing the report.
52.2(6) In this section, the definition of "sexual abuse", with the necessary modifications, applies in determining whether another health professional may have sexually abused a patient or client.
This specific statutory obligation only applies to possible sexual abuse with a patient or client. It should be noted that there is an obligation to report this respecting any other health professional. Nevertheless, reporting is only required when the physician becomes aware of the matter in the course of their practice and has reasonable grounds to believe that sexual abuse has occurred. The specific requirements of the report, including the fact that it need be in writing, and that it must be filed within 21 days should be noted.
Such a report does not constitute a formal complaint. On the basis of the report alone, the Licensing Authority has no authority to initiate an investigation or take any other action. Such reports are investigative tools, allowing the patient, or their care-giver, to be contacted should the Licensing Authority wish to correlate complaints from various sources.
Reporting of Other Matters
Section 52.3 of the Medical Act contains the following provision:
52.3(1) If a member or associate member has information concerning another member, associate member, or former member, from whatever source which suggests, if the information is true, that the other member, associate member, or former member, may be guilty of professional misconduct under this Act or the regulations, or may be incapacitated or unfit to practise under this Act or the regulations, the member or associate member shall report such information to the Registrar without delay.
This obligation extends to all forms of professional misconduct, as well as potential incapacity or unfitness to practise. It includes the obligation to report information regardless of the source. Thus, the physician need not become aware of the information only in the course of their practice. There is no requirement that the reporting physician believe the allegation is to be true. Furthermore, the provision may include some reports of sexual abuse where, for example, the physician becomes aware of such allegations outside of the course of their practice.
The only exception to this obligation to report is when the physician becomes aware of the information through an assessment conducted by Atlantic Provinces Medical Peer Review.
It should be noted that this obligation only concerns the reporting of other physicians. Nevertheless, physicians are encouraged to act in the public interest when the care provided by other health professionals may create a risk.
In respect to this provision, the following procedure is advised:
- If the information is received from a patient, the patient should be advised that there is a process available for making a formal complaint. Even if initially resistant, the patient should be encouraged to contact the College office so any decision they make will be based on a full understanding of what is involved in the complaint process of the College.
- Physicians may make this inquiry on behalf of the patients. They may also, if they wish, file a complaint on the patient's behalf, and with their permission.
- Regardless of the above, where a physician has information regarding a specific colleague, the substance of this should be reported to the College. That said, the following points should be clarified:
a) Where the information concerns or arises from a specific patient, the identity of that patient should not be revealed.
b) Reports are preferably to be made in writing, but need not be.
The question will arise as to the consequences of not reporting. As noted above, this is a professional and legal obligation under the Medical Act and the Regulations of the College. As such, failure to report could be grounds for a complaint.
A question which remains unanswered is whether a physician should, after going through the steps above, advise the patient of the physician's obligation to report the matter. In some cases, patients will be satisfied that, short of a formal complaint, their concerns are still being addressed. In others, such a process may create suspicion and concerns for their privacy. In this light, physicians will have to consider each case individually.
It should also be noted that, under the Medical Act, no action can flow against any member providing a report as required under the Act. In other words, a physician cannot be subject to a law suit, a complaint, or any other adverse action.
Physicians should feel free to direct any questions regarding any of this to the Registrar.
Receipt of Reports by the College
- Copies will be kept separate from the personal file of the physician or any file dealing with formal complaints.
- If the report contains a specific allegation of misconduct, no direct contact will be made with the accused physician, lest the patient be identified. Should situations warrant, such as the receipt of a formal complaint against the same physician for similar conduct, the Registrar will contact the reporting physician to request that the patient be contacted and encouraged to contact the College.
- If the report alleges incapacity, incompetence, or impairment which might pose a risk to the public, the Registrar will commence an investigation by the usual means. In no case will the identity of any reporting physician be disclosed.
- Other matters will be dealt with on a case by case basis. Again, reports will be confidential and for internal College use only.
Reporting of Adverse Actions
Section 52.4 of the Medical Act requires members to report to the College any actions taken against themselves by a variety of entities, as well as the obligation to advise the College immediately of the commencement of any legal action for malpractice:
52.4(1) Following any action taken against a member or an associate member by any other licensing authority, by any healthcare institution, by any professional association, by any governmental agency, by any law enforcement agency, or by any court, for any act or conduct which could constitute professional misconduct under this Act or the regulations, or for any act or conduct which could lead to a finding under this Act or the regulations that the member or associate member is incapacitated or unfit to practise, the member or associate member shall report information regarding such action to the Registrar without delay.
52.4 (2) Following the commencement of any proceedings concerning or related to a member’s or associate member’s provision of medical services, the member or associate member shall report information regarding such action to the Registrar without delay.
6/94; am. 9/99, 9/09, 6/17