 |
|
|
|
|
PROMOTING QUALITY PRACTICE
Confidentiality of Client Information
College of Occupational Therapists of Ontario
August 1997
Practice Scenarios:
In the course of daily practice, occupational therapists often encounter serious practice dilemmas for which an answer is not readily evident. Recent telephone calls to the College provide the following examples:
1. An occupational therapist working for Home Care called the College seeking advice regarding an elderly male patient who had told her he was being abused by the son with whom he was living. What could she do?
2. An occupational therapist in private practice called regarding a patient who she thought was expressing suicidal thoughts; what was her responsibility?
3. An occupational therapist, acting as a Capacity Assessor, found that the nursing home her client was living in was unsatisfactory and she wanted to help the woman find another living arrangement. Could she do this?
4. There is a legal investigation initiated by a patient that an occupational therapist is currently treating. The lawyer asks for a copy of the occupational therapist's notes. Can she release her records?
5. A patient's children inform the occupational therapist that their widowed father is unsafe in his home and describe specific incidences; the father wants to remain in his home. What should the occupational therapist do?
Probing Questions:
1. Is it professional misconduct to release patient information without the patient's consent? Does this apply to all the scenarios above?
2. How does the principle of informed consent affect these scenarios?
3. What is an occupational therapist's legal responsibility regarding reporting abuse - either abuse by the client or abuse of the client?
4. What information can be given to legal authorities? Is there a difference between the police and lawyers?
Response:
Deciding the best thing to do can be a complicated task, and it is rarely accomplished by strictly adhering to 'rules' or a set approach. Certain principles must be taken in to account, but each situation is unique, must be viewed in context, and requires the therapist to use his or her professional judgement. Nowhere is this more clear than in the conflicting professional responsibilities concerning the management of private information.
The Duty of Confidentiality
As noted in the Sexual Abuse Prevention Guidebook and the November 1996 Promoting Quality Practice column, within the client/therapist relationship, the occupational therapist is in a position of trust; the client perceives the therapist as having knowledge, professional skill and judgement, and a commitment to providing quality service in the best interest of the client.
Subsequently, the client will confide highly sensitive and private information to the occupational therapist, information that no one else may have, believing the therapist will respect his or her privacy. Without this belief in privacy or confidentiality, clients may not express their concerns or allow evaluations, and their health needs could not be addressed.
By custom and law, occupational therapists
are expected to respect a person's desire for privacy and to protect confidentiality of information. Due to its importance,
this rule should be broken only within the 'principle of informed consent' or for good reasons, especially when the issues impact only on the patient.
The College's Professional Misconduct regulation (#9) states the following as an act of misconduct to:
Give information about a client to a person other than the client or his or her authorized representative except with the consent of the client or his or her authorized representative or as required by law.
Disciplinary proceedings can result from an act of professional misconduct.
Respect the Decision of the Patient
In situations where the consent of the
client or his or her authorized representative has not been given
or it is not required by law, the decision of the patient must be respected, even if it conflicts with the therapist's own values.
There may be situations where the occupational therapist believes an adult patient is in grave risk of harm (e.g., patient is the victim of violence) and may wish to report this to an appropriate person (i.e., relative) or agency. Under the Professional Misconduct Regulation the occupational therapist must obtain consent from the patient prior to the release of the confidential information that would be needed to assist the patient. If the client refuses assistance, the occupational therapist must respect the patient's wishes. This does not mean the occupational therapist does nothing. The occupational therapist needs to complete a comprehensive assessment and discuss with the patient the options that are available to him or her (e.g., inform the family doctor, refer to support services or shelters in the community). If the client declines the therapist's recommendations and occupational therapy services are required, the occupational therapist should continue to provide counselling and emotional support on this issue.
Prior to contacting sources other than the patient for additional information (e.g., family members, employers) patient consent must be obtained. In situations where confidential information related to the patient has been received from outside sources unsolicited, the issue is how should this information be utilized without compromising the therapist's commitment to the patient. First, the therapist needs to ascertain whether the information is true. The therapist should then encourage the sources to discuss the matter with the patient.
If an adult patient is deemed incapable,
the therapist could discuss patient-related issues with the patient's
substitute decision maker and must seek the substitute decision-maker's
consent to release information. Some exceptions related to confidentiality
for adults exist under the Nursing Homes Act and mandatory
sexual abuse reporting provisions under the Regulated Health Professions Act (note, under the RHPA, the patient's name cannot be reported without the patient's consent).
Under the Child and Family Services Act, a therapist must report to the children's aid society if he or she suspects a child under 16 has suffered abuse. The consent of the child or his or her parent/substitute decision maker is not necessary.
The duty of confidentiality prevents occupational therapists from becoming an arm of the law. The occupational therapist can only release confidential information (e.g.: records, verbal discussion) to the police or a lawyer with a court order (i.e.: subpoena, search warrant) or the written permission of the client.
Duty to Warn
The duty of confidentiality does have limits. This duty may be off-set by the 'duty to warn'.
In situations where the therapist has
reasonable grounds to believe the patient intends to seriously
harm another individual, common law (Wenden v. Trikha) supports
a health professional disclosing confidential information in
order to warn a third party (e.g., the person at risk of harm
from the client). As well, the Mental Health Act provides a process whereby a client who a therapist believes is suffering from a mental disorder and poses a threat to himself or herself or others may be brought to a physician for an examination. The process involves placing sworn information before a justice of the peace, who may issue an order for the person to be examined.
Occupational therapists may wish to discuss these issues with their colleagues and, if appropriate, develop written guidelines highlighting factors that should be considered when releasing or obtaining confidential information. This may include when it is legally acceptable to breach confidentiality (i.e., duty to warn).
The information in the Promoting Quality Practice column applies to all practice sectors. Again, occupational therapists must be objective, transparent and clear in all dealings with clients.
Your response to this practice scenario is appreciated. Please
contact Elaine Kuretzky, Director of Professional Practice, with
your comments or questions:
Elaine Kuretzky
(416) 214-1177 or 1-800-890-6570
ext. 27
coto003@coto.org
* Professional Misconduct Regulation, Section 3
Relevant Reference Materials:
Regulated Health Professions Act, 1991, S.O. 1991, c.18
COTO Professional Misconduct Regulation, O. Reg. 800/93
COTO Code of Ethics, 1997
COTO Sexual Abuse Prevention Guidebook, 1997
November 1996 Newsletter - Promoting Quality Practice Column
Mental Health Act, R.S.O. 1990, c.M.7, s.15(1)
Child and Family Services Act, R.S.O. 1990, c.C.11, s.72(2) and s.37(2)
Ontario Nursing Homes Act, R.S.O. 1990, c.N.7, s.25(1)
"Wenden v. Trikha (1993), 14 C.C.L.T. (2d) 225 (Alta.C.A.)"
Hospital Management Regulation made under the Public Hospitals Act, (Ontario Regulation 965, R.R.O. 1990) as amended.
|
 |
|
|
|
