New Policy Governs Third Party Medical Reports and Testimony by Physicians
The College of Physicians and Surgeons of Ontario (“CPSO”) has recently approved a new policy addressing physician obligations with respect to Third Party Medical Reports (“Policy”) and has published a companion Advice to the Profession document (“Companion Advice”) to “provide physicians with additional information and general advice in order to support their understanding and implementation of the expectations set out in” the Policy. The Policy is a combination of the CPSO’s previous Third Party Reports and Medical Expert: Reports and Testimony policies, and sets out the expectations for all physicians who prepare third party medical reports, whether in the course of providing an opinion as a medical expert, conducting independent medical examinations (IMEs), or who provide information or testify in legal proceedings regarding their patients. In addition to the expectations previously set out in the two former policies as well as the General Regulation under the Medicine Act, 1991 (the “Regulation”), the Policy has created several significant changes to physicians’ obligations with respect to third party reports. The Policy was one of four draft policies released in September 2020 for two months of public consultation. The other draft policies were Delegation of Controlled Acts; Professional Responsibilities in Medical Education; and Telemedicine.
A. Definitions
The Policy sets out expectations and obligations for physicians when providing information as part of a a third party process and not for the provision of health care. A “third party” is defined as any person or organization other than the physician and the person who is the subject of the information provided (if applicable) and can include insurers, governments, employers, educational institutions and lawyers or courts. Following the same logic, a “third party process” is defined as a range of processes related to matters such as insurance benefits, government benefits and programs, employment, educational programs, and legal proceedings. These are merely examples provided by the CPSO, and not an exhaustive list of third parties or third party processes. Physicians may be invited to participate in a third party process in one of two ways: conducting independent medical examinations (IME), or providing third party medical reports and/or testimony. An IME is an examination of an individual as part of a third party process and not for the provision of health care. An IME may require the physician to undertake a review medical records and other relevant documents, and/or clinical examination or assessment of the subject. Third party medical reports and testimony take many forms: from a physician’s note to an employer or educational institution regarding sick leave and accommodations, to expert testimony provided as part of a legal process. The term “subject” is used throughout the Policy and Companion Advice instead of “patient”, likely as there is not always a patient-physician relationship in place or formed in the course of the third party process, as will be discussed in more detail below. It should also be understood to refer to substitute decision makers, where applicable. The term “medical experts” is used in the Policy to refer to physicians who are retained by a party to provide opinion evidence through a third-party medical report and/or testimony in relation to a legal proceeding. The Companion Advice clarifies that by “medical experts”, they are referring to “litigation experts” and not “participant experts”. A litigation expert is not the subject’s treating physician and is retained to help explain medical issues that are relevant to a legal proceeding. A participant expert is a treating physician who is called upon to provide information about one of their patients.
B. Physicians’ Obligations
The Policy represents the College’s interpretation of the laws and principles applicable to physicians conducting IMEs or acting as medical experts. When stepping into this role, physicians may want to seek independent legal advice for further assistance understanding the various areas of law that may influence their obligations and role in third party processes. These include but are not limited to privacy law, insurance law, workplace and occupational health and safety law, and legal procedures. It is also worth noting that even physicians who do not intend to provide these services as part of their practice may be required to provide third party medical reports or testimony about their current and former patients (i.e. to act as participant experts). As treating physicians must fulfill this role when the need arises, every physician should have some familiarity with the Policy so as to ensure that they are prepared to perform what may be an unfamiliar role and seek legal advice if needed. Non-treating physicians who are presented with an opportunity to perform an IME or act as a medical expert are not required to do so to fulfill their professional responsibilities but do have other obligations related to their role as a medical expert. This begins with the request to conduct an IME or act as a medical expert. When receiving such a request, a physician must know who the requesting party is and understand the request, including the scope of their role, responsibilities, and the specific questions that they are being asked to answer. The physician must then disclose any perceived or potential conflicts of interest, discuss them with the third party and must not proceed if a conflict is identified. The Policy further clarifies that, for a physician to accept a request to act as a medical expert or to conduct an IME, the matter must be within the physician’s scope of practice and area of expertise, and they must have the requisite knowledge, skill, and judgement to provide the expert opinion. Physicians conducting IMEs or acting as a medical expert must also have an active certificate of registration and have actively practiced within the requisite scope of practice and area of expertise within the past two years. Treating physicians, however, may be required to testify in a court proceeding regarding a former patient even after they have resigned their certificate of registration or have ceased practising in the relevant area. In addition to understanding their own role, the Policy requires physicians who interact with the subject to communicate to the subject that their role is to provide information for the third party process and not to decide how that information will be used (either by the third party or an adjudicator). They must also be informed that this process may involve the collection, use and disclosure of personal information or personal health information. If conducting an IME, the physician must be clear that they are not providing health care and that they do not intend for any physician-patient relationship to be created in the course of the examination.
C. Privacy and Consent
The Policy provides minimum standards that physicians must apply during the consent process for expert roles involving a subject. Although the goal is not to treat the subject, physicians must still ensure that they communicate with the subject and ensure that they have all the information that they need to provide informed consent to participate in the process. The Policy states that, at a minimum, the physician must inform the subject:
of the purpose, scope, and rationale for an IME (if performing an IME);
that they can withdraw their consent at any time (as well as the consequences of withdrawing consent under the circumstances);
that they may place limits on the information that the physician may disclose and that doing so may prevent the physician from performing their role; and
that even if they withdraw or limit their consent, the physician may still be permitted or required by law to collect, use, or disclose the subject’s personal information.
The Policy reminds physicians that they must obtain the express consent of the subject to conduct an IME and for the collection, use, and disclosure of personal information (including personal health information). This requirement reflects the provisions of the Personal Health Information Protection Act, 2004 (“PHIPA”) and Personal Information Protection and Electronic Documents Act, 2000 (“PIPEDA”) as well as CPSO policies regarding patient information and consent. The Policy also reflects the exemptions provided in PHIPA and also allows for exemptions from the requirement to obtain express consent when such activities are permitted or required by law and it would unreasonable to obtain consent under the circumstance. The Companion Advice further states that physicians may rely on consent forms obtained by someone other than the subject, such as a lawyer, employer, or insurer. However, if a physician has concerns about the validity or scope of the consent that they are provided, they can raise their concern with the requesting party and consider whether it is necessary to obtain consent from the subject directly. Additionally, the Companion Advice clarifies that although consent does not expire after a specific period of time (unless otherwise specified) and is valid until it is withdrawn, physicians should make a reasonable effort to ensure that the consent remains valid if a significant time has passed since consent was obtained, or if other circumstances dictate confirmation of consent.
D. Fees
Along with the other obligations discussed above, physicians must discuss any requirements or arrangements with respect to fees (including cancellation fees for missed IME appointments) with the requesting party before being retained to act as an expert or conduct an IME. Physicians must also comply with any specific legal requirements in relation to fees for IMEs, third party medical reports, and testimony. If there are none, physicians must ensure their fees are reasonable in accordance with the College’s Uninsured Services: Billing and Block Fees policy and regulation. The Companion Advice adds that when a patient is paying out-of-pocket for a third party medical report ( i.e., to support an application for disability benefits or other matters related to income or the necessities of life), physicians may want to discuss the patient’s ability to pay and consider alternative arrangements. In such circumstances, a payment plan or delayed payment may be appropriate.
E. Requirements for IMEs, Third Party Medical Reports, and Testimony
The Policy highlights five requirements for conducting IMEs and providing third party medical reports and testimony. Physicians must ensure that their work product is:
within their scope of practice and area of expertise;
comprehensive and relevant;
fair, objective, and non-partisan (no “hired guns”);
transparent, accurate, and clear; and
timely
Additional information relating to each requirement is provided in the Policy and Companion Advice, including the introduction of new obligations for physicians involved in this work. For example, the requirement that a medical report be transparent, accurate, and clear now expressly includes that physicians must clearly identify who assisted them, specify the nature of that assistance, and ensure that any statements and/or opinions expressed are their own. The Policy also introduces new maximum timeframes for conducting IMEs and preparing third party medical reports, with a maximum of 60 days for third party medical reports that require IMEs and a maximum of 45 days for third party medical reports that do not require IMEs. If a physician is unable to meet these timeframes, they must discuss the matter with the requesting party and reach an agreement with them for a reasonable extension and ensure that the subject is informed of the change. In both cases, physicians who are subject to specific legal requirements (such as a court order) that they work alone or deliver their work within another timeline ought to comply with those requirements.
F. IMEs: Observers, Transparency and Documentation
The Policy dictates several requirements which apply specifically to physicians who conduct IMEs, and which address the sometimes challenging circumstances created by conducting a medical examination for the purpose of a third-party process and not as part of a patient-physician relationship. Observers and Recordings The Policy addresses the issue of having observers present or recording an IME, by the request of either the subject or the physician. Subject to any additional legal requirements regarding the presence of observers or making recordings of an IME, a Physician must permit subjects to have an observer present during an examination, unless they are of the view that the observer’s presence will likely impact the examination. Physicians may also wish to consider having an observer present and/or recording examinations involving vulnerable subjects (such as children). In all cases, consent with respect to observers and recordings must be obtained from all parties involved. The Companion Advice clarifies that if there is a disagreement between the parties regarding the presence of an observer or whether an examination will be recorded, physicians may postpone the examination in order to discuss the parties concerns and arrive at a resolution. If discussions are not fruitful, the physician may choose to decline to conduct the examination and the remaining parties may seek a different physician for the IME. Recognizing that disagreements of this nature may occur, physicians are advised to try to make these arrangements in advance to provide time for discussion if needed and avoid having to reschedule the IME. Clinically Significant Findings The Policy also addresses the duty of the physician conducting an IME to the subject irrespective of the intention that the physician will not provide clinical care during an IME. The Policy states that if a physician becomes aware of an unexpected clinically significant finding, this gives rise to an obligation to perform a risk assessment and appropriately disclose and manage their findings following the process set out in the Policy. An “unexpected clinically significant finding” is defined by the CPSO as “a condition which raises serious concern, or a symptom or condition which requires essential intervention. This includes, but is not limited to, undiagnosed conditions and conditions for which immediate intervention is required.” We interpret this definition to include situations where a condition is known to the subject, but where the need for intervention or available avenues for intervention may not have been known. An unexpected clinically significant finding immediately triggers a risk assessment in which the physician must determine whether the subject is at imminent risk of serious harm and requires emergent or urgent medical intervention. Based on their assessment, the physician must then ensure that the clinically significant finding is appropriately disclosed and managed following the procedures provided in the Policy. If a physician determines that their clinical findings do present an imminent risk of serious harm and require urgent treatment, the physician must:
a. disclose the finding to the subject; and
b. communicate the finding to the subject’s primary health-care provider for any necessary care or follow-up, if there is one and consent to do so has been obtained; or
c. if the subject does not consent to communicating the finding to their primary health-care provider or they do not have a primary health-care provider,
i. provide any necessary care that is within the physician’s scope of practice and connect them to another health-care provider for any follow-up; or
ii. direct the subject to the emergency department or to another health-care provider that is available to provide any necessary care and follow-up.
If a physician determines that their clinical findings do not present an imminent risk of serious harm and the subject does not require urgent treatment, the physician’s next steps are determined by the context of the IME and who made the request. If the IME is either not being performed as part of a legal proceeding or being performed at the subject’s request as part of a legal proceeding, then the physician must:
i. disclose the finding to the subject and advise them to see a health-care provider for any necessary care and follow-up; or
ii. communicate the finding to the subject’s primary health-care provider for any necessary care or follow-up, if there is one and consent to do so has been obtained.
If a third party (not the subject) hired the physician to conduct the IME in the context of a legal proceeding, physicians must:
i. seek independent legal advice regarding the disclosure of the finding; and
ii. consult with the third party to determine whether the third party waives any impediment to disclosure.
In each scenario above, physicians must only disclose clinical information that is directly relevant to the finding. The Companion Advice further provides that the above duty notwithstanding, a physician ought to wait until after the third party process concludes before forming a physician-patient relationship with the subject, unless there is no other physician available to provide the needed care. Forming a physician-patient relationship can compromise a physician’s independence and may become a barrier to the physician participating in the third party process. If a physician does form a physician-patient relationship with the subject, the Companion Advice states that it is good practice for the physician to notify the requesting party of the change in their relationship with the subject, with the subject’s consent. Documentation, Retention, and Access The Policy provides physicians who conduct IMEs with clear guidance regarding how they must document the provision of services for third parties or as part of a third party process. This documentation includes identification of the subject and requesting party, contracts with the requesting party, documentation of the subject’s consent, information regarding the services provided or which was relied on by the physician (even if not prepared by the physician), and any recordings of the examination. The Policy also reminds physicians that their documentation must be legible, accurate, complete and comprehensive, identifiable (containing a signature or audit trail that identifies the author), written in English or French, and organized in a chronological or systematic manner. A physician must retain and provide access to the above documentation in accordance with applicable legal requirements. For example, a patient may have a right of access to the information if it forms part of their medical record under PHIPA, or under PIPEDA if the purpose of the IME was commercial in nature.
G. Conclusion
The Policy and Companion Advice combine the CPSO’s two previous policies regarding medical reports and medical experts, clarify previous requirements, and introduce several new requirements for physicians engaged in third party processes. As other health Colleges often look to the CPSO for guidance, this new policy will likely be influential throughout the health professions. We will continue to monitor regulatory changes in this area. For more information about the new Policy or the Companion Advice, or for advice regarding whether your current or intended role conducting third party medical reports and/or IMEs are in compliance with the Policy, please contact us.
Rosen Sunshine is pleased to present this special update with a focus on third party reports.
