COVID-19 + The Duty to Report
Perspectives for the Professions
On March 17, 2020, Alberta declared a state of public health emergency “due to pandemic COVID-19 and the significant likelihood of pandemic influenza”.
While in the normal course, a patient’s right to privacy is paramount, in the face of a public health emergency, regulated members may find themselves in situations where they have a positive obligation to report a patient’s conduct pursuant to section 1.1(1) of the Health Professions Act (HPA). Further, regulated members who believe that the conduct of another regulated member is placing patients at risk also have positive reporting obligations.
Duty to Report Information about Patients to the Medical Officer of Health
Section 1.1(1) of the HPA imposes a positive obligation on regulated members to immediately notify the medical officer of health of the appropriate regional health authority1 if the regulated member “knows of or has reason to suspect the existence of a nuisance or a threat that is or may be injurious or dangerous to the public health.” Note this positive obligation also applies to council members, officers, employees and agents of a college. Section 1.1(1) uses the definitions in the Public Health Act, which defines “nuisance” as a “condition that is or that might become injurious or dangerous to the public health, or that might hinder in any manner the prevention or suppression of disease.”
The Public Health Act provides more detailed positive reporting obligations with respect to communicable diseases prescribed in the Communicable Diseases Regulation. Due to its novelty, COVID-19 is not currently one of the communicable diseases prescribed in the Regulation. If COVID-19 is added to the Regulation, the reporting obligations set out in in the Public Health Act will also come into effect.
Even outside of a public health emergency or pandemic, s. 1.1(1) of the HPA imposes a positive obligation on regulated members to report behaviour by patients that is detrimental to public health. For example, the reporting obligations may be triggered where a regulated member who knows that a patient who is HIV positive is engaging in conduct that poses a high risk of HIV transmission.
How does the positive reporting obligation under section 1.1(1) of the HPA apply with respect to COVID-19? While the reporting obligation may not be triggered merely because a regulated member knows that a patient has COVID-19, the reporting obligation would certainly be triggered if a regulated member is aware that a patient with a diagnosis (or symptoms) is acting in a manner that is likely to cause transmission. Examples of situations where the reporting obligation may be triggered include where the regulated member:
- Knows that a patient has tested positive for COVID-19 but is not engaging in self-isolation (e.g., they are is still going to work every day, or are shopping for their own groceries);
- Is aware that a patient just returned from out of the country and has refused to self-isolate; or
- Becomes aware that a patient who has tested positive for COVID-19 recently hosted a large house party.
Clearly, regulated members should first educate their patients regarding how COVID-19 is transmitted, the danger of community spread, the requirement to self-isolate, supports that may be available (e.g., if a patient required to self-isolate lives alone and is in need of groceries or other essentials), and other measures that ought to be taken. However, where the regulated member has reason to believe that the patient, despite being notified of the need to take such precautions, is acting in a manner that may be injurious to public health, or where there the patient’s actions may have already caused an increased risk of transmission, the mandatory reporting obligations in s. 1.1(1) will also be triggered.
Duty to Report a Colleague
What if a regulated member is aware that another regulated member is continuing to provide professional services despite having been diagnosed with COVID-19, or after returning from international travel without first self-isolating as required by public health directives?
Section 1.1(1) is also broad enough to require the regulated member to report their colleague to a medical officer of health in these circumstances.
However, many colleges have mandatory reporting requirements, separate and apart from s. 1.1(1) of the HPA, that would also be triggered in this scenario. For example, s. 17.3 of the Standards of Practice for the College of Alberta Psychologists provides that “a psychologist must report another psychologist to the College if they have reasonable grounds to believe that the other psychologist’s emotional, mental, physical, cognitive condition(s), and/or behaviour places the public at risk”.2
Therefore, regulated members may have a duty to inform both a medical officer of health and their own college if they become aware that another regulated member is acting in a manner vis-à-vis COVID-19 that places the public at risk.
In response to a question during the Chief Medical Officer of Health’s briefing on Friday, March 20th, Dr. Deena Hinshaw, Chief Medical Officer of Health (CMOH), advised that her office had followed up with colleges to ensure colleges will emphasize to their regulated members that following public health directives regarding COVID-19 is a professional obligation. Regulated members and colleges alike should continue to monitor directions from the CMOH with respect to positive reporting obligations around COVID-19. Updates from the CMOH are streamed live and archived at alberta.ca/covid. Note that transcripts are only provided for the prepared portion of each briefing, and not the question-answer portion.
College’s Response on Receiving Notification
Subject to further directions from the CMOH, if a college receives notification that a regulated member is providing professional services in circumstances that constitute a nuisance or threat that is dangerous to the public health, the College’s own reporting obligations may be triggered pursuant to s. 1.1(1) of the HPA, which also imposes a positive reporting obligation on council members, officers, employees and agents of the College.
Further, the College should provide the information to the Complaints Director, who may then determine whether to initiate a complaint pursuant to s. 56 of the HPA.
Where the Complaints Director initiates a complaint pursuant to s. 56, the Complaints Director should carefully consider whether to make a recommendation to the decision-maker designated to make decisions regarding interim suspensions pursuant to s. 65 of the HPA. For more information regarding interim suspensions and conditions, see Section H of the Alberta Federation of Regulated Health Professions Complaints Director’s Manual.
While most regulated members will meet their obligations to help prevent the spread of COVID-19, regulated members and colleges need to understand their mandatory reporting obligations, should the need arise. Further, colleges should be prepared to utilize their authority to impose interim suspensions (or conditions) in the event that they have grounds to believe that a regulated member is acting in a manner that puts patients or clients at risk for increased transmission of COVID-19.
If you need any legal assistance related to the state of public emergency or any other regulatory matter, please contact any member of our Professional Regulatory Group. We are continuing to work remotely and are able to assist.
1The legislation was drafted at a time when Alberta had more than one regional health authority, and has not been updated to reflect that at present the only provincial health authority is Alberta Health Services (AHS).
2Other examples include: College of Physicians and Surgeons of Alberta, Standard of Practice: Duty to Report a Colleague; and College of Licensed Practical Nurses of Alberta, Standards of Practice for Licensed Practical Nurses in Canada, Standard 1.5.