Reporting Obligations: When Professionals Need to Make Reports
By Philip B. Abbink
Under a number of different statutes, professionals are faced with the difficult duty of having to report certain kinds of misconduct by their colleagues or misconduct involving persons in their care. This does not mean that professionals have the responsibility of policing their workplace nor should it be taken to mean that they have to report every mistake made by a colleague. However, professionals do have an obligation to report some of the more serious kinds of misconduct, especially when it relates to vulnerable persons, such as children or the elderly.
Each of the obligations discussed below requires the reporting of suspicions or grounds that are reasonable. Vague suspicions, intuitions, rumour or innuendo should not be reported. A penalty, such as a fine, may result from a failure to report a reasonable suspicion. Penalties may also result from making a report that is known to be false. There is generally no duty on professionals to investigate the situation themselves. In fact, doing so may interfere with a subsequent investigation by the appropriate authorities. This article outlines some of the many reporting obligations that relate to children, sexual abuse by health care professionals and the elderly.
Child & Family Services Act
Section 72 of the Child & Family Services Act obliges anyone who has reasonable grounds to suspect one of the listed situations to report the suspicion and the information supporting that suspicion to a Children’s Aid Society. Situations which must be reported include:
- physical harm or a risk of physical harm caused by a caregiver;
- sexual misconduct or a risk of sexual misconduct;
- that a child requires medical treatment which is not being provided;
- certain kinds of emotional harm or the risk of those sorts of emotional harm;
- developmental conditions that are not being addressed;
- that a child has been abandoned; or
- that a child under 12 is likely to cause serious property damage, has injured another person on more than one occasion, or has killed or seriously injured another person.
The Ontario Association of Children’s Aid Societies explains “reasonable grounds” in this way: "Reasonable grounds" are what an average person, given his or her training, background and experience, exercising normal and honest judgment, would suspect.”
The obligation to report a reasonable suspicion of any of the situations listed above attaches to the individual. The duty to report is not met by reporting to a superior. The individual who has the reasonable suspicion must personally report that suspicion to a Children’s Aid Society. If the person has obtained the information in the course of their professional or official duties and fails to make the appropriate report, they may be subject to a fine of up to $1000. Teachers and nurses are explicitly listed as persons who perform such professional duties.
Regulated Health Professions Act
The Regulated Health Professions Act currently obliges all members of Colleges governed by that act to file a report with the appropriate College if they have “reasonable grounds, obtained in the course of practising their profession, to believe that another member ... has sexually abused a patient.” The duty applies to abuse committed by a member of any regulated health profession.
Sexual abuse is defined to include sexual intercourse or other forms of sexual relations, sexual touching, and sexual behaviour or remarks made by a member towards a patient. The RHPA contains further provisions dealing with the timing, form and contents of such a report. Failure to report may be professional misconduct. There is no duty to investigate the suspected misconduct. The report must be made within 30 days from when the duty arises. This means 30 days from the receipt of the information forming the basis for reasonable grounds to believe that the sexual abuse has occurred. If there are reasonable grounds to believe that the abuse will continue, the report must be filed immediately.
Nursing Homes Act
Any person who is not a resident in a nursing home is obliged under the Nursing Homes Act to report to the Director a reasonable suspicion that a resident has suffered or may suffer harm arising from unlawful conduct, improper or inappropriate treatment or care, or neglect. They must report both the suspicion and the information on which it is based. The Nursing Homes Act also contains provisions explicitly protecting the person who makes such a report from reprisals and intimidation or coercion.
Any contravention of the Nursing Homes Act, including the obligation to report a reasonable suspicion that a resident is or was harmed, may result in a fine of up to $25,000 and imprisonment for up to twelve months. It is also an offence to make a false report.
While professionals are not required to report every little mistake of their colleagues, it is important for professionals to know those few situations in which a report must be made, and to whom that report must be made. Common sense is as good a guide here as anywhere else. If a professional believes that he/she has information supporting a reasonable suspicion that a vulnerable person is being treated inappropriately, he/she may have a duty to report that information and his/her suspicion. As always, professionals have an obligation to know the professional standards to which they will be held, and the same is true of their duty to report.