THREE. Requirements under the. & Other Statutes AT A GLANCE

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1 THREE Requirements under the Reguated Heath Professions Act & Other Statutes AT A GLANCE The Structure of the RHPA - 24 Duty of the Coege Under the RHPA and the Dietetics Act - 24 Duty of Dietitians Under the RHPA and the Dietetics Act - 26 Mandatory Reporting for Dietitians - 29 Mandatory Report of Sexua Abuse - 29 Mandatory Report of Chid Abuse - 29 Duty to Warn - 30 Mandatory Report about the Conduct of Another Registered Heath Practitioner - 30 Making a Mandatory Report - 31 The Forma Investigation - 31 Protection from Retaiation - 32 Concusion - 32 Quiz - 34 Resources - 35 SCENARIOS Scenario 3-1 Cooperation with the Coege - 27 Scenario 3-2 Sexua Abuse - 29 Scenario 3-3 Breach of Empoyer Rues - 31 NEED TO KNOW 1. The Reguated Heath Professions Act and other egisation create obigations for dietitians that they need to earn, ike mandatory reporting. 2. Dietitians have a duty to cooperate with the Coege of Dietitians of Ontario in investigations, inquiries and assessments. 3. The chaenge for dietitians is to baance competing interests appropriatey. FIGURES Figure 3-1 CDO By-Law 5: Professiona Liabiity Insurance Coverage Requirements for Members - 28 Figure 3-2 Mandatory Reporting Requirements for Dietitians - 33 Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 23

2 The Structure of the RHPA Laws originate from two main sources: case aw and statutes. The courts decide case aw, often caed "common aw". For exampe, the case of McInerney v. MacDonad (1992), 93 D.L.R. (4th) 415, is a decision of the Supreme Court of Canada, which indicates that cients generay have a right to ook at and obtain a copy of their chart from their heath practitioner. Athough not directy aimed at dietetic practice, this aw aso appies to cients of dietitians. This case aw existed ong before the Persona Heath Information Protection Act, 2004 (PHIPA) was enacted. In many respects, PHIPA consoidates and then extends the case aw. Either the Federa or the Provincia Legisature can make a "statute", often caed an "act". A number of statutes, not directy reated to the reguation of the profession, affect the practice of dietetics. The Pubic Hospitas Act, for exampe, affects dietitians who work in pubic hospitas. Sometimes, the province enacts more than one statute to form a unified set of aws reating to one topic. The foowing egisation directy reates to how dietitians are reguated: The Reguated Heath Professions Act sets out the framework for the reguation of the entire heath profession sector and the roe of the Minister of Heath and Long-Term Care. The Heath Professions Procedura Code is an attachment, or schedue, to the RHPA. It sets out the common duties and procedures for individua heath Coeges, incuding the Coege of Dietitians of Ontario. For exampe, it specifies the responsibiities of the Counci and the seven statutory committees of each Coege. The Dietetics Act is a distinct statute. It deas specificay with issues pertaining to the reguation of dietitians, such as the dietetic scope of practice and the protection of dietetic tites. Many statutes authorize the making of further aw through reguations or by-aws without having to go to the egisature again. Reguations appear under both the RHPA and the Dietetics Act. Those under the RHPA are genera in nature, appying to a heath professions, whie reguations under the Dietetics Act specificay address the reguation of dietitians incuding: Registration ; Professiona misconduct; Quaity Assurance Program; Notice to the pubic of open meetings and hearings; and Funding for therapy and counseing for cients who have been sexuay abused. The Coege aso has by-aws that dea with interna administrative matters, such as eections to the Counci, composition of committees, fees, the content of the register of members, and the reporting of information by members to the Coege. In addition to this egisation, the Coege has created a number of guideines, poicies and standards. Stricty speaking, these are not aws, but toos that assist members to compy with their ega and professiona obigations. Duties of the Coege Under the RHPA and the Dietetics Act Under the RHPA and the Dietetics Act, the Coege has the mandate to reguate the dietetics profession. Its duty is to serve and protect the pubic interest. The Coege does not exist to advance the interests of the dietetic profession; this is the roe of professiona associations. Sti, there is no doubt that a we-reguated profession preserves its reputation and stature. Further, the Coege has a duty to act fairy when deaing with its members. Lega "fairness" means that before the Coege takes any action that might harm a dietitian's rights, such as making a finding of professiona misconduct, or imposing a fine or suspension, the Coege must notify the member of the concern, and hear and consider the member's expanation. Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 24

3 The RHPA requires reguated heath coeges to carry out seven core functions to achieve pubic protection: 1. Registration 2. Pubic Register 3. Compaints, Reports and Investigations 4. Discipine 5. Incapacity 6. Quaity Assurance 7. Patient Reations 1. REGISTRATION The Coege has a duty to ensure that ony quaified appicants are given a Certificate of Registration to practice as a dietitian. If the Coege does not accept an appicant's quaifications, it must give reasons for the decision, and provide the appicant with a right of review before the independent Heath Professions Appea and Review Board PUBLIC REGISTER The Coege is obiged to maintain a register of a members containing basic information about their registration status (e.g., category of registration, whether there are any terms, conditions or imitations), business contact information, discipine history and other information (e.g., findings of professiona negigence). The register must be avaiabe on the Coege's website. This enabes members of the pubic to make informed choices about using the services of a dietitian COMPLAINTS, REPORTS AND INVESTIGATIONS The Coege must operate a pubic compaints system, and investigate every compaint received about dietitians. When a compaint is received, the dietitian must be notified of the compaint and get an opportunity to respond in writing. Both the dietitian and the compainant have a right of review before the independent Heath Professions Appea and Review Board, uness the matter resuts in further action by the Coege. The Coege has pubished a detaied description of the compaints process in an artices in résumé entited, Investigations of Members how they get started (Spring 2008) and Inquiries, Compaints and Reports Committee (Spring 2009). 3 In addition to pubic compaints, the Coege has a duty to investigate concerns about members that arise from other sources such as mandatory reports (Tabe 3-1, p. 33). 4. DISCIPLINE If concerns from a compaint or a report are serious and are supported by sufficient evidence, the Discipine Committee wi hod a forma discipine hearing. Any finding of misconduct or incompetence, and any penaty ordered, may be appeaed to the courts. 5. INCAPACITY If there is a concern that a member has an iness that is ikey to interfere with their abiity to practice or their professiona judgment (e.g. certain chronic and severe menta inesses or substance abuse), the Coege can inquire into the matter. Shoud medica evidence substantiate a concern, the Coege wi attempt to negotiate a treatment and monitoring pan with the member. If no agreement can be reached, a forma hearing is hed in private before the Fitness to Practise Committee. The committee can order, among other things, ongoing treatment and monitoring. Any decision can be appeaed to the courts. The Coege has pubished two usefu resources in the résumé newsetter: 1. "Fitness to Practice", résumé, Spring 2002, p. 6; 2. "When Stress Leads to Incapacity What Can I Do", résumé, Winter 2006, p. 2. Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 25

4 6. QUALITY ASSURANCE The Coege is required to estabish and operate a Quaity Assurance Program for its members to encourage and assist members in being the best dietitians possibe. The program is non-punitive and participation is mandatory PATIENT RELATIONS Another non-punitive program, the Patient Reations Program, tries to provide education, guideines and toos for both dietitians and members of the pubic to support constructive, coaborative and nonexpoitative interactions with cients. Whie preventing or deaing with sexua abuse of cients is a mandatory component of the Patient Reations Program, it is far from being its excusive focus. It aso provides funding for therapy and counseing for abused cients. Reports about abuse are deat with in a respectfu and timey manner. Duties of Dietitians Under the RHPA and the Dietetics Act This section expains the essentia aspects of a dietitian's most important obigations as set out in the Reguated Heath Professions Act, (incudes the Heath Professions Procedura Code) and the Dietetics Act. Here are the fundamenta duties of every dietitian. RESPECT OF THE SYSTEM OF CONTROLLED ACTS Controed acts are higher risk procedures. No one, incuding dietitians, is permitted to perform them without ega authority. This duty is discussed in detai in Chapter 4. RESPECT LEGAL RESTRICTIONS FOR THE DIETITIAN TITLE The Dietetics Act prohibits the use of the tite "dietitian" by anyone who is not a member of the Coege. The prohibition incudes using variations or abbreviations of "dietitian" in any anguage. The Coege takes steps to ensure that the "dietitian" tite is protected by pursuing compaints about the misuse of the tite. Dietitians are encouraged to report to the Coege anyone suspected of misusing the tite. Dietitians are not permitted to use the tite "doctor" or an abbreviation or variation of that tite in the course of providing or offering to provide heath care to individuas in Ontario. Even dietitians who have a doctora degree cannot use that tite in the context of their practice. Dietitians with a doctora degree can use the tite sociay or in non-cinica contexts, where they woud not be taken to be offering to provide heath care. In addition, the professiona misconduct reguations prohibit the inappropriate use of a term, tite or designation in respect of a dietitian's practice. An inappropriate use woud ikey incude: Using a fase or miseading term such as Medica Dietitian when the person is not a physician; or Impying speciaization or certification such as Paediatric Dietitian, since there are no recognized and certified speciaties in dietetics. It is generay acceptabe, however, to indicate that a practice is restricted to a particuar area, such as chidren. It is aso acceptabe to use the tite Pubic Heath Nutritionist, where appropriate, because the term impies an area of practice rather than a speciaty, and is recognized under the Heath Protection and Promotion Act. COOPERATE The issue of cooperation is raised in Scenario 3-1, Cooperation with the Coege (next page). A dietitians have an obigation to cooperate with the Coege in an investigation, inquiry or assessment conducted under the RHPA. Faiing to cooperate with the Coege is in itsef professiona misconduct, even if the behaviour initiay being investigated is bameess. Cooperation with the Coege is part of the accountabiity expected of dietitians, incuding: Responding to Coege communications in a timey manner; Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 26

5 Providing access to faciities and records for Coege investigators or assessors; Fuy cooperating with Coege investigators incuding answering questions reated to the investigation; Not withhoding, conceaing or destroying documents or things reevant to an investigation or assessment; Attending for cautions (forma warnings) directed by the Inquiries, Compaints and Reports Committee, or reprimands ordered by the Discipine Committee; Compying with a summons issued by a committee or an investigator appointed by the Coege; Providing required information to the Coege, incuding changes of information contained in the pubic register of the Coege (e.g., business address and teephone number); Fufiing an undertaking or promise to the Coege; and Practising within the restrictions paced on your Certificate of Registration. PARTICIPATE IN THE QUALITY ASSURANCE PROGRAM Dietitians are required to participate in the Quaity Assurance Program. This incudes competing and returning, when requested, the Jurisprudence Knowedge and Assessment Too and the Sef-directed Learning Too, which faciitate professiona deveopment. It aso requires cooperating with any practice assessment directed by the Quaity Assurance Committee or any remediation that might fow from an assessment. AVOID SEXUAL AND OTHER ABUSE A major theme of the RHPA is the eradication of sexua abuse of cients by registered heath practitioners. Any sexua behaviour, incuding making a ribad comment, constitutes sexua abuse. See Chapter 10 for more detais on boundary issues. SCENARIO 3-1 Cooperation with the Coege A etter arrives from the Coege informing you of a compaint by a cient who says you were rude. The Coege asks you to respond to the compaint within 30 days. In fact, you beieve that it was the other way around, and can barey contain your frustration at having to dea with yet another probem. You are aready working 60-hour weeks, have a mother who can barey cope in her home, and as the ony chid in the city, are trying to persuade her to go to a retirement home. Six weeks go by, and you receive a reminder etter from the Coege. On a visit to your famiy physician for a recurring cough, she diagnoses you with exhaustion and tes you to stop a work reated activity for a month. What do you do? AVOID TREATING CLIENTS WHILE INCAPACITATED A dietitian must not treat a cient whie being impaired by any substance or iness. This means avoiding situations that can ead to troube, such as booking cient visits after a Christmas uncheon or party where acoho might be consumed, or skipping necessary medication. Specia provisions exist to dea with situations where the iness itsef so impairs judgment that a dietitian may not know that they are incapacitated. Typicay, this occurs with addiction to acoho or drugs, or with some severe and chronic menta inesses. If these conditions are confirmed upon a fu inquiry which can incude an independent medica or other examination the Coege wi usuay require the dietitian to go through treatment and monitoring to ensure cient safety. REPORT FINDINGS OF OFFENCES OR PROFESSIONAL NEGLIGENCE Dietitians must report to the Registrar of the Coege if they have been found guity of any crimina code or provincia offence, or if a court has made a finding of professiona negigence or mapractice. The Coege wi then assess Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 27

6 whether the particuar finding is reevant to the dietitian's suitabiity to practise. If the finding raises no apparent concerns (e.g., a traffic offence that does not invove dishonesty or impairment), the Coege wi simpy fie the report. If the finding raises concerns reevant to the dietitian's suitabiity to practice dietetics (e.g., a crimina conviction for fraud or professiona negigence invoving serious breaches of standards of practice) the Coege wi investigate the matter to determine if some reguatory action shoud be taken, such as, remediation or discipine). The Coege is required by the RHPA to pace any finding of professiona negigence on the pubic register. Offence findings are not, however, paced on the pubic register. This new provision is a sef-reporting obigation ony. Other dietitians do not have to make a report if they become aware of a finding made against someone ese (athough in some circumstances a dietitian may concude that he or she has an ethica obigation to notify the Coege of a serious court finding). CARRY LIABILITY INSURANCE Dietitians practising dietetics as defined by the Coege must carry professiona iabiity insurance as set out in the Coege's By-aw 5, Professiona Liabiity Insurance Coverage Requirements for Members, beow. (See Figure 4.1: CDO`s Definition of Practicing Dietetics, p. 38.) A dietitian can rey on their empoyer's professiona iabiity insurance coverage ony where the dietitian is an "added insured", i.e., the insurer agrees to defend the dietitian even if the empoyer is not sued. The Coege may ask dietitians to provide proof of this iabiity insurance coverage. OTHER DUTIES Numerous other duties are set out in the egisation, particuary in the Professiona Misconduct Reguation. They incude: competence (Chapter 1); honesty (Chapter 1); appropriate assignment of tasks and supervision (Chapter 4); privacy obigations (Chapter 5) respecting cient confidentiaity (Chapter 6); obtaining informed cient consent (Chapter 7); record keeping (Chapter 8); appropriatey managing conficts of interest (Chapter 9); maintaining proper boundaries (Chapter 10); effective communication (Chapter 2); mandatory reporting (next page). FIGURE 3-1 CDO BY-LAW 5 Professiona Liabiity Insurance Coverage Requirements for Members 1.01 A member engaging in the practice of dietetics sha maintain professiona iabiity insurance coverage with the foowing characteristics: a. The minimum coverage sha be no ess than $2,000,000 per occurrence. b. The aggregate coverage sha be no ess than $5,000,000. c. The deductibe sha be no more than $1,000. Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 28

7 Mandatory Reporting for Dietitians A specia duty under the RHPA, and indeed other statutes, is to make mandatory reports to the proper authority when certain events occur, such as sexua abuse of a cient, chid abuse, abuse of an edery person in a ong-term care or nursing home, or unprofessiona behaviour of another dietitian. If it appears that one of these situations exists, a dietitian shoud obtain specific ega advice. Figure 3-2, Mandatory Reporting Requirements for Dietitians (p. 33), identifies the reporting requirements, what must be reported, and to which authority. Generay, faiing to make a mandatory report is professiona misconduct, and carries significant consequences. In some cases, dietitians can be prosecuted and fined up to $50,000 in Provincia Offences Court. A dietitian coud aso be sued for any harm that resuts. Some years ago, a physician was successfuy sued for more than haf a miion doars for faiing to report a cient who was a danger to others, and who then harmed someone in a motor vehice accident. A mandatory report is not a breach of confidentiaity, even where a cient does not want a report to be made. A dietitian's duty of confidentiaity is subject to other requirements or authority of aw. REASONABLE GROUNDS Many of the mandatory reporting criteria refer to "reasonabe grounds to beieve". That phrase has two components: 1. Reasonabe grounds refer to objective information, not persona beief. If the facts are present, a report must be made even though you might not beieve the facts to be true. A dietitian does not have to make a detaied evauation of whether the person providing the information is credibe -- so ong as there is some objective basis for making the report. 2. Reasonabe grounds describe the type of information needed to make a report. Mere rumour or gossip does not constitute reasonabe grounds; for exampe, a nurse saying over coffee that everyone knows that a certain doctor in the hospita seeps with his patients. However, hard evidence or cear proof is not needed either. Information from someone who did not personay observe the event is fine, so ong as it contains some specifics. For a report under the Chid and Famiy Services Act, ony reasonabe grounds to "suspect", not "beieve", is needed. This means that the degree of information suggesting that a chid is in need of protection can be quite ow. Mandatory Report of Sexua Abuse SCENARIO 3-2 Sexua Abuse You have been working with your cient, Maria, for some time and have deveoped a fairy cordia professiona reationship. On one visit, Maria seems quite subdued. After your attempts to engage her don't work, you ask her what is wrong. Maria bursts into tears. After regaining her composure, she tes you that her famiy physician conducted an improper breast examination. She describes what occurred, which certainy sounds ike an unusua breast examining technique. You know the identity of the physician from her fie. What are your ega obigations? When deaing with reveations of sexua abuse, it is important for dietitians to manage them sensitivey and not cause further harm. In addition, dietitians need to be aware of their professiona ega obigations. Scenario 3-2, Sexua Abuse, raises the issue of mandatory reporting obigations and when they appy. According to aw: A report of sexua abuse under the RHPA must be made if a dietitian has reasonabe grounds, obtained in the course of practising dietetics, to beieve that a reguated heath professiona has sexuay abused a patient. Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 29

8 A report of sexua abuse under the RHPA cannot incude the identity of the cient uness the cient gives written consent to incuding his or her name. A report of sexua abuse under the RHPA must be made within 30 days uness there are reasonabe grounds to beieve that additiona abuse may occur, in which case the report must be made immediatey. without cient consent in order to protect a third party from a significant risk of serious bodiy harm or a cient from serious sef-inficted harm (see Chapter 6). Mandatory Reports about the Conduct of Another Registered Heath Practitioner Mandatory Report of Chid Abuse Any person who has a reasonabe suspicion that a chid is in need of protection needs to report that suspicion to the oca Chidren's Aid Society. Whie everyone has this duty, it is an offence for a dietitian not to make a report when the information is obtained in the course of practising dietetics. The definition of a chid in need of protection, under the Chid and Famiy Services Act, is quite engthy and compex. For exampe, one part of the definition states: "The chid requires medica treatment to cure, prevent or aeviate physica harm or suffering and the chid's parent or the person having charge of the chid does not provide, or refuses or is unavaiabe or unabe to consent to, the treatment." Obviousy, there can be some debate as to the precise meaning of that definition. If in doubt, get advice. Duty to Warn The duty to warn is the professiona obigation for dietitians to notify appropriate third parties and/or authorities when a cear threat of harm or death is made by a cient to another identifiabe individua or group. The duty to warn may aso appy when a cient is at significant risk of seriousy harming themseves. The duty to warn created by case aw is not defined very ceary and permits some variation in interpretation. The Persona Heath Information Protection Act provides egisative support for making a report One of the more frequent mandatory reports is for terminating an empoyee or an association with another registered heath practitioner, incuding other dietitians, for professiona misconduct, incompetence or incapacity. A dietitian might make a report to the Registrar of a coege, for exampe, when ending a group practice because they coud no onger toerate a practitioner's drinking or repetitive rudeness to cients. Another reporting obigation for dietitians who operate a faciity, such as a ong-term care home, is where they have reasonabe grounds to beieve that another registered heath practitioner is incompetent or incapacitated. Incompetence refers to a significant demonstration of a ack of knowedge, ski or judgment towards a patient. Incapacity generay refers to a menta or substance abuse iness that impairs the practitioner's judgment. This reporting obigation is in addition to "termination" reports. The two work together as foows: If the association (e.g., empoyment) with a registered heath practitioner is terminated, the faciity and/or the Registered Dietitian must report the matter in a cases, incuding professiona misconduct, incompetence or incapacity. If the association with a registered heath practitioner is not terminated, the faciity and/or the Registered Dietitian must report incidents of unsafe practice or unethica conduct, incompetence and incapacity. Empoyers and faciity operators generay have a sense as to what incompetence or incapacity are, but may not aways appreciate what constitutes professiona misconduct for a Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 30

9 dietitian. The starting point is to read the definition of professiona misconduct found at the beginning of this book. Generay, misconduct invoves any breach of honesty or trust. In addition faiure to compy with any fundamenta standards of practice (e.g., confidentiaity, informed consent, etc.) woud aso quaify. Where in doubt the empoyer or the faciity operator can contact the Coege. Scenario 3-3 iustrates the issue of when a SCENARIO 3-3 Breach of Empoyer Rues George has been fired for repeated persona use of faciity phones during work hours and for faiing to re-assess residents of the faciity every three months. Shoud the empoyer report the matter to the Coege? breach of empoyment rues is reportabe. Even though George was fired, a report is ony necessary if the conduct constitutes professiona misconduct. Not a breach of empoyer rues constitute professiona misconduct. One has to ook at whether the breach compromised safety, created a risk to cients or jeopardized patient care or amounted to a serious departure from the honesty or trust that the pubic can expect from dietitians. Further guidance is provided by the 34th definition of professiona misconduct with reads as foows: 34. Contravening a federa, provincia or territoria aw, a municipa by-aw or a by-aw or rue of a faciity where a member practices if, i. the purpose of the aw, by-aw or rue is to protect the pubic heath, or ii. the contravention is reevant to the member s suitabiity to practise. In Scenario 3-3, the persona use of faciity phones during business hours is more of an empoyment management issue than one of professiona misconduct. Whie it is true that there may have been some brief absences from cient care when making the cas, those absences ikey were not materia to cient care. The faiure to re-assess residents may be another matter, particuary if it occurred over severa months, not just a few days, and the cients were high risk. Depending on the circumstances a mandatory report may we be required for that matter. Writing a Mandatory Report A report shoud either be made or confirmed in writing. Here are some key eements for writing a report: Provide a summary of the concern. Be cear about the concern. Do not make the reader guess, particuary if the matter is technica or cinica. Provide detais. This wi assist the recipient to respond appropriatey. It may aso reduce your subsequent invovement in answering obvious questions. It is usuay acceptabe to attach pertinent documents. Incude a ist of witnesses the authority may wish to contact. Remember, for reports of sexua abuse under the RHPA, the identity of the cient cannot be incuded uness he or she consents in writing. Incude any response or expanation from the subject of the report. Fairness woud suggest that it be mentioned in the report. This demonstrates good faith. In addition, incuding the response heps everyone understand the compete situation. You are not taking sides by making a report, but providing important information to an authority. Outine any action that has been taken to date on the aegation. It is important for the authority to know, for exampe, that the person has been paced on workpace suspension. The Forma Investigation Once the mandatory report is made, the authority wi first consider if there is enough information to conduct a forma investigation. If there is any doubt, the reporting dietitian wi probaby be contacted again. If a forma investigation is initiated, the investigator wi focus on ocating and interviewing firsthand Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 31

10 witnesses of the actua events, and obtaining documents that might bear on the aegations. Most authorities try not to revea the name of the person making a mandatory report. However, it sometimes is necessary to discose the name in order to propery investigate or prosecute the matter. Shoud dietitians conduct their own investigation if a mandatory report is going to be or has been made? There is no cear answer to this question. Some worry that this coud interfere with or even jeopardize the officia investigation. Nonetheess, proceed with great caution and consider these factors: In every case, try not to disturb the evidence. Make sure that documents are not atered by your inquiries. Ensure that the recoection of witnesses is not affected by asking eading questions, or interviewing them in the presence of other witnesses or peope who may, by their mere presence, infuence the answers. Ony make inquiries if there is an important reason for doing so, for exampe, to ensure that sufficient facts have been coected in order to make the report, estabish whether anyone is at immediate risk or take necessary interna discipinary action. If it is reasonaby possibe, wait unti the authorities have competed their investigations. Protection from Retaiation When a dietitian makes a mandatory report, there is some ega protection from retaiation. Uness acting in bad faith, the reporting dietitian cannot be successfuy sued for making a mandatory report. Making a fase report in order to get someone into troube woud be an iustration of bad faith. A dietitian making a report that ater turns out to be groundess woud sti be protected if there was information to support the report, even though that information was incorrect. Some statutes provide additiona protection as we. The RHPA for exampe, protects peope who submit reports from retaiation in their empoyment or their contract to provide services. Even where the criteria for making a mandatory report are not present, courts tend to offer simiar protections for vountary reports made to an appropriate authority in good faith. For instance, if you earned at a party about a heath practitioner having sexua reations with a cient, a report woud not be mandatory (Tabe 3-1, next page). However, you might fee compeed to report the matter in order to protect the pubic, and coud expect ega protection. Concusion For reasons of pubic protection, the Reguated Heath Professions Act and other aws specify the obigations of dietitians. For those who are unaware of their professiona responsibiities, faiure to compy coud mean a course of remedia action by the Coege, ega action or potentia fines. Dietitians need to earn and understand how these aws appy to their professiona practice. In an effort to guide dietitians, the foowing chapters examine the compexities of jurisprudence issues in detai and their appication to dietetic practice. 1 The Heath Professions Appea and Review Board is appointed by the government and is made up of ay peope. Depending on what the appicant requests, the Board wi either conduct a paper review or conduct a fu hearing with witnesses to assess whether the Registration Committee made a reasonabe decision. If the Board beieves that the Registration Committee made an unreasonabe decision, it can make a number of orders incuding referring the matter back to the Registration Committee for reconsideration, or even directing that the Registration Committee register the appicant. The Board aso reviews decisions made by the Inquiries, Compaints and Reports Committee of the Coege. 2 Richard Steinecke. Transparency and Privacy What the Word Wi Know About You. résumé: Spring 2009, p Dean Benard, RN., LL.M., C.Med, Investigations of Members How they get started, résumé, Spring 2008, p. 6. And, Richard Steinecke, LLB. Inquiries, Compaints and Reports Committee, résumé, Spring 2009, p. 6. Aso see, What Happens When you make a Compaint. on the Coege website. 4 The Coege's website has an entire section expaining its Quaity Assurance Program: > Members: Quaity Assurance Program Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 32

11 Figure 3-2: Mandatory Reporting Requirements for Dietitians WHAT MUST BE REPORTED LEGISLATION / LEGAL AUTHORITY TRIGGER FOR REPORT WHO IS RESPONSIBLE FOR THE REPORT REPORT TO Sexua reations, touching, behaviour or remarks of a sexua nature between a registered heath practitioner and a cient where you know the name of the aeged abuser. Reguated Heath Professions Act Reasonabe grounds obtained either in: 1. The course of practising your profession; or 2. Operating a heath faciity. 1. Dietitian; or 2. Faciity Operator (e.g., CEO, administrator, or their deegate). The Registrar of the Coege to which the person beongs. Professiona misconduct, incompetence or incapacity of a registered heath practitioner. Reguated Heath Professions Act 1. You are terminating empoyment; 2. You are revoking, suspending or imposing restrictions on privieges; 3. You are dissoving a partnership or association; or 4. You intended to terminate or revoke, and the person quits first. Any person who meets the trigger must make the report. The Registrar of the Coege to which the person beongs. Incompetence or incapacity of a registered heath practitioner. Reguated Heath Professions Act You operate a faciity and have reasonabe grounds to beieve that a registered practitioner is incompetent or has an incapacity. Faciity Operator (e.g., CEO, administrator, or their deegate). The Registrar of the Coege to which the person beongs. Offence detais, professiona negigence or mapractice detais in a finding by a court. Reguated Heath Professions Act A dietitian is the subject of a finding by a court. Sef--report must be made by the dietitian who has been the subject of the finding by the court. The Registrar of the Coege of Dietitians of Ontario. Incidents of unsafe practice or unethica conduct by another dietitian. Professiona Misconduct Reguation for Dietitians Not stated. Probaby reasonabe grounds. Dietitian Any appropriate authority. That a chid (under 16) is in need of protection as defined in the Chid and Famiy Services Act (e.g., suffering abuse or negect). Chid and Famiy Services Act Reasonabe grounds to suspect. Any person who meets the trigger must make the report. Chidren's Aid Society The report must be persona; cannot deegated. That a resident of a ong-term care or retirement home has suffered or may suffer harm as a resut of unawfu conduct, improper or incompetent treatment or care, negect, or misuse or misappropriation of a resident s money or of funding provided, among other events. Long-Term Care Homes Act, and the Retirement Homes Act Reasonabe grounds to suspect. Any person who meets the trigger must make the report, other than another resident. The Director at the Ministry of Heath and Long-Term Care (for ong-term care homes or nursing homes), and the Registrar of the Retirement Home Reguatory Authority (for retirement homes). That an identifiabe person or group is at substantia risk of serious harm or death from another person. Case aw "duty to warn" Reasonabe grounds to suspect. Dietitian To an appropriate authority such as the poice, the Pubic Guardian and Trustee or, in some circumstances, the primary care physician and, possiby, the intended victim. Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 33

12 Quiz Provide the best answer to each of the foowing questions. Some questions may have more than one appropriate answer. Expain the reason for your choice. See Appendix 1 for answers. 1. In Scenario 3-1, "Cooperation with the Coege", what shoud you do? a. Foow doctor's orders and do not respond to the compaint. b. Ca or write the Coege expaining the situation and requesting an extension. c. Write a brief response because you must cooperate with the Coege. d. Ca the cient, apoogize, expain your condition and ask her to withdraw the compaint. 2. In Scenario 3-2, "Sexua Abuse", what do you do? a. Report the physician to the Registrar of the Coege of Physicians and Surgeons of Ontario, with a the detais incuding the cient fie. b. If you get the cient's written consent,report the physician to the Registrar of the Coege of Physicians and Surgeons of Ontario. c. Report the physician to the Registrar of the Coege of Physicians and Surgeons of Ontario, with a the detais except the cient's identity (uness you have the cient's written consent). d. Report the physician to the Registrar of the Coege of Dietitians of Ontario. 3. You have reasonabe grounds to suspect that a 17-year-od mentay chaenged potentia cient needs an assessment for possibe Type 1 diabetes. The person is ceary incapabe of consenting. You have discussed the situation with the parents. The parents won't act because of their persona beiefs and have tod you to drop the matter. What shoud you do? a. Report the matter to the Chidren's Aid Society under the Chid and Famiy Services Act. b. Contact the famiy physician anyway because you have impied consent to discuss the case with the cient's heath care team. c. Report the matter to the Pubic Guardian and Trustee's office (who ooks after the affairs of incapabe persons where there is no one ese) under the common aw (case aw) duty of care. d. Search for another substitute decisionmaker. 4. You have reasonabe grounds to beieve that a heath care aide is physicay abusing a resident of a ong-term care or nursing home. The resident is mentay capabe but fearfuy denies any suggestion that someone might be hurting her. You understand that you must make a mandatory report under the Long- Term Care Homes Act (2007). Shoud you advise the resident that you are making the report? a. Whie not required to do so, it is a good idea. b. Yes, the Long-Term Care Homes Act requires it. c. No, the Long-Term Care Homes Act prohibits it. d. No, it might interfere with the investigation. 5. On the facts raised by question 4, shoud you te the administration Long-Term Care Homes Act of the home that you are making the report? a. Yes, before you make the report, so that the administration can conduct its own investigation. b. Yes, after you make the report, so that the administration does not try to tak you out of it. c. No, it might interfere with the investigation. d. Yes, as soon as possibe, so that the administration can take steps to protect this and other residents. Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 34

13 Resources COLLEGE OF DIETITIANS OF ONTARIO résumé "Fitness to Practise", Summer 2002, 6-7. "When Stress Leads to Incapacity What Can I Do", Winter 2006, 2-4. "Coping with Stress at Work", Fa 2005, 1-4. Liabiity Issues & Coaborative Practice: Part 1 - Negigence & Seven Principes of Team-Based Care, Summer 2007, p Liabiity Issues & Coaborative Practice: Part 2 - Professiona Liabiity Insurance - What you shoud know. Fa 2007, p Liabiity Issues & Coaborative Practice: Part 3 - Understanding ega actions against heathcare teams. Winter 2008, p Investigations of Members how they get started, Spring 2008, 6-8. Inquiries, Compaints and Reports Committee, Spring 2009, 6-7. Transparency and Privacy: What the word wi know about you, Spring 2009, 4-5. Mandatory Reports New Requirements, Summer 2009, RD Responsibiities for Mandatory Reporting in a Faciity. Fa 2009, 4-5. RD Liabiity Insurance FAQs, Spring 2011, p. 10. PUBLICATIONS Richard Steinecke, «Mandatory reporting Obigations», Grey Areas, January 2006, McInerney v. MacDonad (1992), 93 D.L.R. (4e) 415. Federation of Heath Reguatory Coeges of Ontario. An Interprofessiona Guide on the Use of Orders, Directives and Deegation for Reguated Heath Professionas in Ontario (2007). Onine guide at: SRESOURCES/medica.asp LEGISLATION Dietetics Act, 1991, "Professiona Misconduct", Ontario Reguation 680/93. Amended to O.Reg. 302/01. Dietetics Act, 1991, "Quaity Assurance", Ontario Reguation 593/94. Amended to O. Reg. 301/01, Part III.2. Reguated Heath Professiona Act, 1991, S.O. 1991, Chapter 18, Prohibitions 27 (2). Guideines at > Making a Compaint Responsibiities of Empoyers Back to Tabe of Contents Jurisprudence Handbook for Dietitians in Ontario Coege of Dietitians of Ontario 35