Do I need to provide this information?

Physicians may receive requests for information when another healthcare professional, such as a nurse or other physician, is under investigation by their medical regulatory authority (College). Physicians may be asked to give this information as a witness to the conduct of the investigated healthcare professional, to validate the care or statements provided by another healthcare professional, or in their role as treating physician for the healthcare professional. These requests should be distinguished from those where a physician is asked to act as an expert or assessor in a College matter.

Physicians contacting the CMPA in these circumstances often ask whether they must cooperate with the investigating College, and if so, whether there are limits on what they can disclose.

Duty to cooperate

Where required to cooperate with a College’s request for information, whether by legislation or a court order, physicians should generally comply and do so in a timely manner. Since legislation can vary between provinces/territories, and the details of any court order are often fact-specific, members are encouraged to contact the CMPA for advice before responding to any request for information.

In some jurisdictions, the applicable health professions legislation requires the physician to cooperate with the College investigation or inspection, even if they are not a member of the College requesting the information. For example, Ontario’s Regulated Health Professions Act states that regulated health professionals have a duty to cooperate with a College investigator.¹ Newfoundland and Labrador’s Medical Act requires physicians to comply with requests for information and documents in the context of an investigation of a physician.² There is a similar requirement under Newfoundland and Labrador’s Registered Nurses Act and Health Professions Act that requires physicians to comply with similar requests from Colleges investigating nurses, midwives, and other regulated health professionals.³

Some legislation states that it is professional misconduct not to cooperate with a College,⁴ or more specifically, with an investigator’s request for records or information.⁵ It may also be considered an offence under the legislation to obstruct a College investigator who has requested information under their statutory authority.⁶

In certain circumstances, the College may obtain a court order to compel the physician to provide the information, or issue a subpoena to require the physician to attend at a hearing with relevant records and to give evidence.⁷ Physicians who receive a subpoena should consult the CMPA and refer to the article, Subpoenas — What are a physician's responsibilities?

Duty of confidentiality

A College may also ask physicians treating other healthcare professionals for information about their patients. In these circumstances, the first consideration should be the physician’s duty of confidentiality to their patient.

When a physician is required by the applicable health professions legislation, or receives a court order to disclose information about a patient, this generally prevails over any privacy and confidentiality obligations owed to the patient and consent is not required. To maintain trust, and when appropriate, consider informing the patient of the request and your duty to provide the required information. If there is no legal requirement to disclose patient information to the College requesting the information, the physician’s duty of confidentiality persists. In that case, it is reasonable to confirm that the investigator obtained express consent from the patient to disclose the information requested.⁸

In every case where patient information is disclosed, make a notation in the patient’s medical record of the request, confirmation of consent or other legal authority to disclose the information, and the specific information that was disclosed.

Responding to the request

Physicians should only disclose the information necessary to comply with the specific request or order. For example, a complete copy of the medical record should not be provided if only asked to address a particular issue. A cautious approach is especially important for treating physicians, who may be exposed to the risk of a privacy or College complaint or civil action if they provide more information than requested.

To ensure only relevant and authorized information is disclosed, clarify with the investigator the nature and scope of the requested information, such as a specific date range or specific medical issues and consultations identified as relevant to the investigation. This is particularly important where potentially sensitive information is contained in responsive records (e.g. mental health or substance use issues). If it is determined that sensitive information falls within the scope of the request, confirm with the patient that they understand this information will be disclosed.

Any communication with the College should be prompt and courteous. It is important to respond accurately and factually and to avoid engaging in speculation when answering investigators’ questions. If called to testify at a hearing, members are encouraged to consult the CMPA’s publication, Testifying: What it involves and how to do it effectively, and contact the CMPA for additional advice.

Keep records of all correspondence with the College related to the request, including details about the information disclosed. If the request relates to a patient, this documentation should be maintained in the medical record. Otherwise, this information should be kept in a personal file for future reference.

Bottom line

When receiving a request for information from a College investigating another healthcare professional, physicians will want to consider the following:

• Legislation or a court order may require compliance with the College’s request, even if the investigated healthcare professional is the physician’s patient and the physician is not a member of the College requesting the information.
• Ask the investigator to confirm the grounds for the request and the authority to disclose information (e.g. express patient consent, court order, or statutory obligation to cooperate).
• When providing information or records, ensure only relevant and authorized information is disclosed. If unclear about the parameters of the request, follow-up with the investigator to obtain this clarification.
• Respond accurately, objectively, and in a timely manner. Do not engage in speculation.
• Keep records of all communications with the College related to the request.
• Contact the CMPA when in receipt of a request by a College for documents or information, if asked to testify in a hearing concerning another healthcare professional, or if you are concerned about the care you provided in conjunction with the investigated healthcare professional.

Notes

1. 1. 
   Ontario, Health Professions Procedural Code under the Regulated Health Professions Act, 1991, SO 1991, c 18, s 76(3.1). See also Manitoba’s Regulated Health Professions Act, CCSM c R117, s 99(3), Québec’s Professional Code, CQLR c. C-26, s 114.
2. 2. 
   Newfoundland and Labrador, Medical Act, SNL 2011, c M-4.02, s 44(7). See also Northwest Territories, Medical Profession Act, SNWT 2010, c 6, s 60(3).
3. 3. 
   Newfoundland and Labrador, Registered Nurses Act, 2008, SNL 2008, c R-9.1, s 23(4)(b); Health Professions Act, SNL 2010, c H-1.02, s 38(5)(b).
4. 4. 
   See Prince Edward Island, Medical Practitioners Regulations, PEI Reg EC843/21, s 34(1)(aa).
5. 5. 
   See Manitoba, Regulated Health Professions Act, CCSM c R117, ss 100(2); Alberta, Health Professions Act, RSA 2000, c H-7, s 1(1)(pp); Prince Edward Island, Regulated Health Professions Act, RSPEI 1988, c R-10.1, s 47(4).
6. 6. 
   See e.g. British Columbia, Health Professions Act, RSBC 1996, c 183, s 31; Manitoba, Regulated Health Professions Act, CCSM c R117, ss. 100(5); Nova Scotia, Medical Act, SNS 2011, c 38, s 38(3).
7. 7. 
   See Alberta, Health Professions Act, RSA 2000, c H-7, s 53.3(1) and Ontario, Health Professions Procedural Code under the Regulated Health Professions Act, 1991, SO 1991, c 18, s 76(1).
8. 8. 
   In Québec, a regulated health professional under investigation by their College is prohibited from refusing to authorize another health professional, such as their treating physician, to cooperate with an inspector or disclose information about the investigated professional when requested: Code des professions, CQLR c C-26, s 114.

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.