Increasingly, third parties are asking occupational therapists to review surveillance material and render a professional opinion as part of their assessment, independent medical examination or paper review. Surveillance material is often obtained without the client’s knowledge or consent; usually takes the form of a video, voice recording, or photographs; and may be accompanied by an investigator report. Surveillance material is common in the insurance industry as part of disability claims, typically in the auto sector, long-term disability or Workplace Safety and Insurance Board claims.
As healthcare providers, occupational therapists are reminded that they hold a position of power and trust and must practise ethically. Occupational therapists must remain ethical, objective, professional and fair.
Review of surveillance material necessitates careful consideration of the following:
- Occupational therapists should be cautious about providing an opinion on surveillance material where the identity of the individual portrayed is in doubt.
- Occupational therapists who are asked to review surveillance material must consider whether they feel sufficiently qualified and have the competence (knowledge, skills and judgement) to do so. Review of surveillance material requires a specific skill set.
- Occupational therapists must know the risks, benefits and limitations of proceeding with the review.
- In cases where occupational therapists feel they need to be more experienced in reviewing and providing a professional opinion of surveillance material, they can decline to comment on the surveillance as part of their evaluation.
Question: Are occupational therapists obligated to review surveillance material?
Answer: Occupational therapists are autonomous practitioners accountable for their practice, decision-making and actions. The decision to review surveillance material is left to the occupational therapist's clinical judgement. The occupational therapist should have the competence and expertise to review the material and be satisfied that no conflicts of interest exist.
Question: Does viewing surveillance material require prior consent from the client?
Answer: Occupational therapists must follow the Standard for Consent. The Standard outlines that consent is an ongoing process. If review of surveillance materials may be a possibility as part of the occupational therapy services provided, the occupational therapist must consider how to include the review as part of the initial consent process. If the occupational therapist has been asked to review the surveillance material and this was not discussed in the initial consent process, they must obtain the client’s consent before reviewing the material.
If surveillance material is being reviewed within the context of a paper review and the occupational therapist has had no prior contact with the client, consent is not required.
Question: What happens if an occupational therapist is asked to review surveillance material in court or mediation proceedings?
Answer: The requirements for legal proceedings or tribunals supersede COTO's guidance or Standards of Practice. The College cannot provide legal advice on the rules governing expert witnesses, nor can the College comment on the professional rules and expectations when under the direction of the court.
Question: Should the surveillance material be reviewed before or during the assessment with the client?
Answer: The College suggests that surveillance material be viewed with the client, if appropriate, as this enables the client to provide context, validate or explain what may appear in the material.
Question: Is it reasonable to review surveillance material without client involvement?
Answer: The College recognizes that occupational therapists may receive requests to view surveillance material without telling the client of the occupational therapist’s involvement. In such cases, the occupational therapist should inform the client that the surveillance material exists and obtain the client’s consent to review the material, regardless of the third party’s request.
Some clients may decline the occupational therapist’s offer to review the surveillance material jointly. While the decision to review surveillance material in this situation remains at the occupational therapist’s discretion, the limitations in using this approach should be documented where the validity and credibility of the professional opinion may be questioned.
In all cases, occupational therapists should use their judgement to determine whether reviewing the surveillance material without the client is appropriate.
Note: Occupational therapists are accountable for their practice. This resource is intended to support, not replace, the professional judgement of an occupational therapist or legal advice in particular situations.