An article for physicians by physicians
Originally published December 2010
A review of the legal duties and ethical considerations for physicians to report their reasonable concerns about the professional competency, conduct or behaviour of another physician to health care institutions/hospitals, public health officials or regulatory authorities (Colleges).
A Manitoba physician suffers from alcohol dependence and occasionally has tremors and blackouts. She is being treated by her family physician. The family physician is becoming increasingly concerned about the physician-patient's ability to work and he suggests she stop seeing patients until getting the necessary treatment. Despite this, the physician-patient continues to practise clinically, but states that she does not drink or take drugs before working.
What are the treating physician's obligations in this situation?
Like all individuals, physicians can suffer from medical conditions (e.g., epilepsy), mental health problems (e.g., depression and adjustment disorders), or alcohol or substance use problems. Each of these illnesses can affect a physician's ability to practise.
You may be aware of a physician, whether he or she is a patient or a colleague, whose mental or physical health, conduct, or behaviour poses a risk to patients or the public, or raises reasonable concerns about his or her ability to practise. If you know a physician who is experiencing these difficulties, there are resources available to help you decide how you may best assist. For example, both the physician health program (PHP) in your province and the experienced medical officers at the CMPA can give guidance and advice.
You may conclude that you have a legal duty and/or ethical responsibility to report a physician. Regardless of the circumstances, making a report or being the subject of a report can be difficult and upsetting for all concerned. Understanding your reporting obligations in these circumstances is helpful.
You may be required to report to health care institutions/hospitals, public health officials or regulatory authorities (Colleges). A hospital that limits, suspends or revokes the practice privileges of a physician may be required to report this to the College.
You should become familiar with the legislation and/or College policies on reporting in your province or territory. The reporting requirements and expectations can generally be found on the relevant College website. You may want to contact a CMPA medical officer for advice and to review your obligations to report. Most statutes or policies require that you have reasonable grounds for reporting; however the triggering criteria can vary considerably between Colleges. Terms such as incompetence, incapacity or unfit are commonly used, but typically are not defined in the pertinent statute or policy document.
The CMPA encourages physicians to attend to their own personal health. This is especially important when facing stress from medico-legal difficulties.
In recent years, resources have been developed to help physicians whose ability to practise is at risk. Information to meet the health needs of Canadian physicians and those who care for them can be found at ePhysicianHealth.com. Physician health and wellness programs (PHPs) are available across the country, and studies have shown that these can successfully rehabilitate impaired physicians allowing them to return to active practice. Physicians may contact a PHP directly for help or can refer a colleague.
Generally, the confidentiality provisions associated with PHPs provide a safe haven to seek advice and assistance and, if necessary, treatment in a manner that does not threaten professional standing. In specific situations, PHPs may have an obligation to report to the College. Physicians considering PHP treatment regimes are encouraged to review the reporting obligations of PHPs.
Physicians finding themselves or their colleagues in need of help can contact the physician health program in their region by going to https://www.cma.ca/En/Pages/provincial-physician-health-programs.aspx.
Concerns about a physician who is your patient (the physician-patient)
Physicians who provide medical care to fellow physicians benefit not only the physician-patient, but also the profession and the community. In caring for physician-patients, however, there are certain legal duties as well as ethical considerations.
Communicable diseases: All provinces and territories have public health laws requiring physicians to report patients with certain communicable diseases (e.g., HIV infection or hepatitis) to public health officials. If a physician-patient is diagnosed with a reportable condition, you must report this to the individual or office designated in the legislation.
Health: As a treating physician, you may have a legal requirement or ethical duty to report a physician-patient's health status to the College when the condition might reasonably impair that physician's ability to practise or when the condition could threaten the safety of patients, staff or others.
In some provinces and territories, the law mandates a treating physician to report a physician-patient to the College when health issues render him or her unfit to practise. This can happen when the physician-patient refuses to follow recommended and reasonable treatments such as taking medications, exercising safety precautions or taking a necessary leave of absence. You may face a dilemma between your duty of confidentiality as a treating physician and the imperative to protect the public. Public safety must be the primary consideration.
Alleged sexual impropriety: Many colleges have specific statutory provisions that require the reporting of certain conduct such as suspected sexual impropriety by a physician toward a patient. This obligation most often arises when you have reasonable grounds, based on information you have obtained in your practice, to believe that another physician (whether a patient or a colleague) has sexually abused a patient. Other Colleges have policies imposing ethical reporting obligations in such cases. You therefore have a duty to report sexual impropriety, even when the information becomes known through a physician-patient relationship to which a duty of confidentiality would otherwise apply.
If you are uncertain about your reporting obligations, contact the CMPA for advice.
Concerns about a physician colleague who is not your patient
In certain circumstances, legal and/or ethical obligations may also exist to report physician colleagues who are not under your clinical care.
Clinical competency: There may be uncommon circumstances in which you feel responsible for reasons of patient safety to bring forward your concerns about a colleague's pattern of care, health or behaviour.
In the hospital/institution, you should voice your concerns professionally through the proper administrative channel. In a just culture of safety, the leadership would fairly determine if the individual has a gap in knowledge or skills, or if medical assessment and care is indicated. The preferred approach is to provide training and support.
Leaders should be aware the physician being reported may require medical assessment or reassessment, and a referral to the provincial PHP might be indicated. Reassessment may be required if the physician is already under the care of another physician or the PHP.
Disruptive behaviour: Physicians may have a responsibility to report the unprofessional conduct and behaviour of other physicians (or others) to an appropriate authority in an institution/hospital, often the chief of the department.
The Canadian Medical Association's Code of Ethics states that you are ethically bound to report "to the appropriate authority any unprofessional conduct by colleagues."
Institutions/hospitals generally have a legislated obligation to address disruptive behaviour in the workplace. Referrals to a physician health program for assessment and treatment can often help resolve the disruptive behaviour. If disruptive behaviour negatively impacts patient safety or if the physician is impaired, there may be an obligation for you or the institution to report the physician to the College.
Alleged sexual impropriety: As noted previously, many Colleges have specific statutory provisions that require the reporting of certain conduct such as suspected sexual impropriety by a physician toward a patient. Other Colleges have policies imposing ethical reporting obligations in such cases. Physicians have a duty to report sexual impropriety by a physician colleague.
Making the report
When you determine you have a legal obligation or an ethical duty to make a report to an institution/hospital, a College and/or public health officials, in most cases it is best to first inform the physician that you are obliged to make the report. The report should be made in a timely manner or immediately if patient safety is at risk or if the physician's health is compromised. Although a physician may wish to continue practising, the physician making a report must consider the safety of the community and the welfare of the physician being reported. The physician who is the subject of the report may require advice to stop practising in the interim.
Helping decrease the stress associated with reporting
The report itself and even your concerns about a colleague's fitness to practise, incapacity or disruptive behaviour can be particularly stressful for all involved. Recognizing that reporting is difficult, it is important to inform your colleague why you need to make the report. Generally, avoiding surprises and showing support or empathy will help ease the tension.
If you are aware of a physician who should be reported yet fail to do so, this may result in disciplinary proceedings against you at your health care institution/hospital or the College. It could also result in a legal action especially if someone is allegedly harmed because of an unreported physician's incapacity, health status or behaviour.
Although a decision to report may cause you considerable angst, it may be reassuring to know that the statutory provisions and the civil/common law generally protect you against liability in such circumstances. This protection typically prohibits a legal action against reporting physicians when their report is made on reasonable grounds and in good faith, without malice.
Keeping records of relevant information
You should keep detailed records of any relevant information leading up to making a report. The records should include the outcome of discussions with the physician-patient or colleague referred to in the report and made to the institution and College or with public health officials. Contemporaneous notes (i.e., notes made at the time of or as soon as practical after the actual encounter) may be helpful if it is alleged the report was not made in good faith or on reasonable grounds.
For treating physicians, you should keep information relating to a report separate from the patient's medical record or the hospital's personnel file, except in Québec where all disclosure of patient information must be noted in the patient record. You must also keep these records in a way that protects any personal health information included in the report, as well as the personal privacy of the physician who is the subject of the information.
Self-reporting by physicians
If you are being treated for serious health issues, you must also consider whether you are obligated to self-report in accordance with any applicable College policy. On licence applications or renewal forms, some Colleges include questions on alcohol or drug dependence, infectious diseases, and any physical or mental conditions that might affect fitness to practise safely.
Resolution of the illustrative case
Manitoba's Medical Act requires that the treating physician make a report to the College if the physician reasonably believes a physician-patient: (a) is unfit to practise, incompetent or unethical; or (b) suffers from a mental or physical disorder or illness that may affect fitness to practise, and continues to practise despite having been counselled otherwise.
In determining whether to report, the treating physician must assess whether his physician-patient can properly perform her clinical duties, even if she does not drink or take drugs before seeing patients. If the risks of blackouts, tremors or lapses in judgment remain, a duty to report exists. In that case, her physician should advise her that there is an obligation to make a report to the College, and this would be done as soon as possible.
- All physicians have an obligation to understand and meet their reporting obligations. If you are uncertain as to how to proceed, contact the CMPA for advice.
- Consider referring physician colleagues to provincial physician health programs for assessment and treatment of medical, mental, drug-related or behavioural problems.
- All jurisdictions have legislation that requires you to report patients with certain communicable diseases.
- Most provinces and territories have statutory provisions and/or College policies that make it mandatory for you to report physicians, whether they are patients or colleagues, whose health might compromise their ability to practise medicine or might put the public's health at risk.
- In cases of unprofessional conduct by colleagues, you or your institution/hospital may have a statutory duty to report in some jurisdictions and a general duty to do so in the remaining jurisdictions.
- The College reporting requirements and expectations in your jurisdiction can generally be found on the relevant College website. Since these requirements vary between provinces, you should consult the specific provision or policy before making a report.
- It is important to inform your physician-patient of your decision to report.
- If you have concerns about your own health, obtain medical assessment by your own physician or contact your provincial physician health/wellness program (PHP).