In a number of situations, occupational therapists, their employers, facility operators offering privileges to them, and other regulated health care providers have a legal obligation to make a mandatory report.
These reports are made to the College of Occupational Therapists of Ontario or, as appropriate, to the College of another regulated health care professional. Learn what you need to know about General Reporting Requirements and Processes and Sexual Abuse Reporting Requirements and Processes.
1. General Reporting Requirements and Processes
What is a mandatory report?
The Health Professions Procedural Code, which is schedule 2 to the Regulated Health Professions Act, 1991 (sections 85.1 to 85.6.2), provides that all employers or managers, facility operators, other regulated health care professionals, and their business partners or associates, have an obligation to report certain information as a matter of public protection. These reports are made to the College of Occupational Therapists of Ontario or, as appropriate, to the College of another regulated health care professional.
What must employers/managers/facility operators and associates/partners report?
Employers/managers must report if they have revoked or restricted the privileges or practice of, suspended or terminated an OT (or other regulated health care professional) for reasons of professional misconduct, incompetence or incapacity.
All must report if they receive notice of resignation or a voluntary restriction or relinquishing of privileges or practice from an OT(or other regulated health care professional)who is the subject of an investigation into allegations related to professional misconduct, incompetence or incapacity.
All must report if they receive notice of resignation or a voluntary restriction or relinquishing of privileges or practice from an OT(or other regulated health care professional) and they have reasonable grounds to believe that the resignation, relinquishment or restriction, is related to the OT’s or other regulated health care professional’s professional misconduct, incompetence or incapacity.
Employers/managers must report if they dissolve a partnership, health profession corporation or association involving an OT (or other regulated health care professional) for reasons of professional misconduct, incompetence or incapacity
Facility operators must report if they have reason to believe that a regulated health care professional is incompetent or incapacitated
Facility operators are required to file mandatory reports if they suspect sexual abuse of a patient by an OT or other regulated health care professional. See section 2 below for more details.
Who are considered associates of regulated health care professionals?
An associate is any person who practices in any kind of business relationship with a regulated health professional.
What is a “restriction” of practice of privileges?
Any limitation on the regulated health care professional’s practice would be included in this phrase. Examples include:
Practicing under some form of supervision or mentoring.
Limiting the activities or procedures that the regulated health care professional can perform (for example, not conducting particular types of assessments, not seeing a certain category of patients such as children or women, not permitted to use certain modalities).
Practicing only where the regulated health care professional remains in treatment for an addiction or impairing mental illness.
A location limitation, such as not performing home visits.
Some interventions may or may not be a restriction depending on the circumstances. For example, an agreement by the regulated health care professional to take certain courses may not be a restriction if she or he has no limitations on her or his practice in the meantime.
However, a limitation (for example, to review treatment plans with a colleague until the course is successfully completed) would be a restriction of practice.
What are “reasonable grounds”?
Reasonable grounds exist where there is more than mere suspicion that the termination or
restriction is related to the event. For example, an unanticipated retirement by the regulated health care professional when a concern is raised about his or her conduct, competence and/or capacity would generally constitute reasonable grounds. It does not take a lot of information to trigger “reasonable grounds”. This wording falls well short of the “balance of probabilities” that is required to prove allegations at a discipline hearing.
While the entire phrase, which reads “reasonable grounds to believe”, refers to a person’s belief, this is an objective test. For example, where reasonable people would assume that the termination or restriction was related to the conduct, competence and/or capacity concern, a report must still be made even though the regulated health care practitioner denies the
connection. Similarly a report must be made even though the person who should be making the report does not believe that the regulated health care practitioner actually did anything wrong.
Subjective opinions no longer have a place in determining whether a report should be made.
What does “related to” mean?
Where the termination or restriction is “related to” the conduct, competence and/or capacity of the regulated health care practitioner, a report must be made. The phrase is broad and indicates that the conduct, competence and/or capacity concern does not have to be the sole reason for the termination or restriction. So long as the conduct, competence and/or capacity concern reasonably appears to be a material factor in the termination or restriction decision or action, a report must be made.
What is an “investigation”?
An investigation is any inquiry, review, audit or examination by or on behalf of an employer, partner, associate or facility to assess whether there are concerns related to conduct, competence and/or capacity of a regulated health care professional. There is no formality implied by the term. There does not need to be an official complaint. The investigation does not need to be authorized by legislation.
For example, if an employer is concerned that a regulated health care professional may have inadequately assessed patients and does an informal chart audit to assess whether this concern is valid, that employer is conducting an investigation. Should the regulated health care professional resign from his or her position during the audit, a mandatory report is required.
How long do I have to file a mandatory report?
Mandatory reports must be filed within 30 days after the occurrence of the incident giving rise to the report. However, reports must be made immediately if there are reasonable grounds to believe that:
the professional will continue to sexually abuse the patient or other patients; or
the incompetence or incapacity of the professional is likely to expose patients to harm or injury, and there is urgent need for intervention.
Where do I send a mandatory report?
For the College of Occupational Therapists of Ontario, to:
Office of the Registrar
College of Occupational Therapists of Ontario
20 Bay Street, Suite 900
PO Box 78
Toronto, Ontario M5J 2N8
For sexual abuse cases, to the Registrar of the relevant College. In Ontario, there are Colleges for the following health care providers: Audiologists and Speech-Language Pathologists; Chiropodists and Podiatrists; Chiropractors; Dental Hygienists; Dental Surgeons; Dental Technologists; Denturists; Dieticians; Homeopaths; Kinesiologists; Massage Therapists; Medical Laboratory Technologists; Medical Radiation Technologists; Midwives; Naturopaths; Nurses; Occupational Therapists; Opticians; Optometrists; Pharmacists; Physicians and Surgeons; Physiotherapists; Psychologists; Psychotherapists; Respiratory Therapists; and, Traditional Chinese Medicine Practitioners and Acupuncturists.
What information should the report contain?
The name and contact information of the person filing the report, the name of the subject of the report, and all relevant details giving rise to the report. As the Registrar must determine if an investigation is warranted, it is helpful to provide as much information as possible.
What happens if someone who’s obligated to file a mandatory report fails to do so?
Failure to file a required report is considered an offence which is punishable upon conviction to a fine of up to $25,000 in the case of an individual, and $50,000 in the case of a corporation.
What happens once the College receives the report?
The Registrar reviews all mandatory reports received; assesses the level of risk posed to the public and determines the appropriate regulatory response. If there is sufficient information to provide reasonable and probable grounds to believe that a practitioner has
engaged in professional misconduct, is incompetent or incapacitated, the Registrar will seek the Inquiries, Complaints and Reports Committee’s (ICRC) approval to appoint an investigator. Not every report will require formal investigation. If an investigator is appointed, the results of the investigation are reported to the ICRC which is composed of members of the public and OTs. College staff are neither members of the ICRC nor involved in the decisions it makes.
If the College initiates an investigation, the Investigations & Resolutions Associate usually contacts the OT who is the subject of the report to advise him/her that a report has been received; and to discuss and answer questions about the process. Generally, the subject of the mandatory report is given a summary of the report. The subject of the report is always put on notice of the results of the investigation and asked to provide a response to the ICRC. In rare cases, some investigation might occur before the subject of the report is notified (such as to preserve evidence).
What will the investigator do?
If appointed, an investigator may contact the person filing the report, the OT who is the subject of the report, or any other individuals who may assist the ICRC in understanding the nature of the concerns that led to the filing of the report.
The investigator works within the provisions of the Regulated Health Professions Act, 1991 and the Public Inquiries Act, 2009. When gathering information the investigator can:
enter, at any reasonable time, the business premises of the occupational therapist and examine anything relevant to the investigation;
copy any documents related to the investigation; or
remove documents or objects which will be returned within a reasonable timeframe.
Information obtained by the investigator may be used as evidence in proceedings before the College. At the conclusion of the investigation, the Registrar will report the results to the ICRC.
If an investigator is appointed, do I have to cooperate?
Yes. If you are an OT, it is considered professional misconduct not to cooperate with a College investigation. For anyone else, if the College requires information to assist with the investigation, a summons can be issued compelling you to provide it.
What other information will the ICRC have?
The ICRC will not make a final decision on a matter without providing the subject of the report an opportunity to respond in writing to the results of the investigation. Depending on the case, the investigator may be required to meet with witnesses, which may include clients, colleagues, the employer, etc.
Should the subject of a mandatory report obtain the advice of legal counsel?
Some do, but the College does not require it. Malpractice insurance may cover this. The College suggests that individuals discuss the matter with their insurance carrier if they are interested in having legal counsel represent them.
Can I contact the College during the process?
If you have questions of an administrative nature, contact the Manager, Investigations & Resolutions. While the College can discuss the process, it cannot share specific details about the investigation itself, which is generally confidential information.
How long does the process take?
Although there are no statutory imposed timelines, the College seeks to ensure that investigations and dispositions of mandatory reports are made within a reasonable time. The ICRC ensures that the investigation is fair, objective and complete, and will not make a decision without the benefit of having enough information before it to enable it to do so.
What is the status of a member of the College during an investigation process?
Unless the matter is referred to the Discipline Committee or the Fitness to Practise Committee, and there is a finding of professional misconduct, incompetence, or incapacity, or the ICRC makes an interim order requesting the Registrar to suspend or restrict the OT’s ability to practice, the OT who is the subject of the report is considered to be active.
What decisions can the ICRC make?
The ICRC has the power to make one or more of the following decisions:
1. Decide not to investigate because the complaint is frivolous, vexatious, made in bad faith or is an abuse of process.
2. Take no further action, if the OT’s conduct was appropriate.
3. Issue advice or a recommendation, if the ICRC believes the OT would benefit from some guidance to improve his or her conduct or future practice.
4. Request that the OT participate in self-study or practice monitoring, with assistance available from the College in developing an educational plan with follow up from the College to ensure the OT has addressed the needs identified.
5. Require the OT to appear before a panel of the ICRC to be cautioned-in-person regarding specific aspects of his or her practice, professionalism or conduct. For investigations initiated on or after January 1, 2017, a summary of the decision to caution-in-person will be posted to the OT’s profile on the public register at Find an Occupational Therapist.
6. Request or accept the OT's undertaking to improve his or her practice or to restrict his or her practice, which may include education, supervision, and/or monitoring, and may require further evaluation upon completion. The College monitors compliance and for investigations initiated on or after January 1, 2017, the terms of the undertaking will be posted to the OT’s profile on the public register at Find an Occupational Therapist.
7. Direct the OT to complete a specified continuing education remediation program (SCERP) in order to improve skills or change practice. The College monitors compliance and for investigations initiated on or after January 1, 2017, a summary of the decision will be posted to theOT’s profile on the public register at Find an Occupational Therapist.
8. Request or accept an undertaking from the OT to resign and to never apply for reinstatement, which is posted to the OT’s profile on the public register at Find an Occupational Therapist;
9. Take other appropriate action not inconsistent with the Regulated Health Professions Act, 1991.
10. Refer allegations to the Discipline Committee for a hearing, if the concerns related to conduct or competence are very serious and cannot reasonably be addressed through one of the other options.
11. Refer the case to the Fitness to Practise Committee for a hearing if the ICRC believe the therapist may be mentally or physically unable to practice.
12. Where a referral is made to the Discipline Committee or Fitness to Practie Committee and the ICRC is of the opinion that the conduct of the OT exposes or is likely to expose patients to harm or injury, it may request the Registrar to suspend or restrict the OT’s ability to practice.
A written decision of the ICRC will be issued to the subject of the mandatory report.
Will the person who files a report be advised of the ICRC’s decision?
No, the process is between the College and the subject of the report.
Can an occupational therapist appeal the decision?
No. Decisions about mandatory reports cannot be appealed. However, the decision of the ICRC can be judicially reviewed on application to the Superior Court of Justice (Divisional Court).
Can the ICRC revoke an occupational therapist’s Certificate of Registration?
No. That can only happen as a result of a finding made by the Discipline Committee or the Fitness to Practise Committee.
In rare circumstances, the ICRC may direct the Registrar to suspend or impose terms, conditions or limitations on a Certificate of Registration. That happens through an Interim Order. This will only be considered in cases where the matter has been referred to the Discipline Committee or the Fitness to Practise Committee for a hearing, and the ICRC feels that immediate action is required to protect the public interest.
Is the process confidential?
Generally, the people who are aware of the particulars include: the Registrar; the Manager, Investigations & Resolutions; the Investigations & Resolutions Associate; ICRC members; and relevant College staff reviewing the case file. During the investigation, other individuals may become aware of some aspects of the case if they are required to provide information to the College.
2. Sexual Abuse Reporting Requirements and Processes
If there is a referral to the Discipline Committee or the Fitness to Practise Committee for a hearing, that process is open and information related to the hearing will be made available to the public.
What are the general College processes in the case of mandatory reports of possible sexual abuse?
General College processes are the same as those outlined above under General Reporting Requirements.
What are the mandatory reporting requirements in the case of possible sexual abuse?
An OT, an individual who operates a facility and any member of a regulated health profession has a duty to file a mandatory report if they have reasonable grounds to believe that a regulated health care professional has sexually abused a patient/client.
Sexual abuse is defined as:
Sexual relations, i.e. intercourse or other forms of physical sexual relations with a patient/client.
Touching of a sexual nature of the patient/client (apart from therapeutic touching, i.e. that required for exams, assessments and therapies).
Behaviour or remarks of a sexual nature towards the patient/client, which can include saying something sexually suggestive; requesting a date; making sexualized comments on appearance or clothes; commenting about sexual relationships; making sexually insulting or offensive comments; or giving unwanted attention (like kissing or hugging).
What happens if the patient/client tells me about the sexual abuse but refuses to tell me the name of the health care professional?
Have a discussion with the individual about to the seriousness of the allegation and their right to have it addressed by a regulatory body. You can also suggest that this individual contact the College’s Manager, Investigations & Resolutions, anonymously for more information. You are only required to file a report with the College if you have the name of the person alleged to have committed sexual abuse.
What if I am a health care professional treating another health care professional, and learn of the possible sexual abuse that way? Do I have to make a mandatory report?
Yes. In this case, confidentiality with your patient/client does not apply. In addition, you are also required, if you’re able, to provide your opinion as to whether the individual may sexually abuse patients/clients in the future.
Do I need the consent of the patient/client to submit their name in the report?
Yes. If the individual is incapable of providing consent, their representative may provide consent on their behalf. If the patient/client refuses to provide their consent, you must still file a report without their name. You should advise the individual of your professional obligation to file the report, and suggest that they contact the College’s Manager, Investigations & Resolutions, for additional information.
Where can I find more information about health care professionals and sexual abuse?
Please see our page about Sexual Abuse Prevention here.