Psychologist Liability and Legal Protection

Historical environmentProgram today

Legal liabilities from practice

Historical Challenges

Driven by profit

Discrepancy in quality & Coverage

Limited accountability / control / input

Increasing litigation / regulatory action

Limited analysis on claims trending

Limited outcomes from data

Minimal additional member value

Limited incentive to introduce a member centric structure

What is done with analytics today compared to the past 30 years

Healthcare Professionals Insurance Alliance

The OPA (national) Program

Broker: BMS Group

Insurer: Lloyds of London – QBE

Adjuster: Maltman International

Preferred Legal Services:

Gowlings Lafleur Henderson LLP

The Program

Tailored exclusive protection

Over 7,400 Psychologists with exclusive unique coverage

$ in paid claims

Coverage designed with the input of the profession

Funds re-invested back into the program

Measurable Outcomes

Enhanced risk management, education

Safer patient care

Better control of premiums / Enhanced coverage

Risk and Liability

Where actions arise

Civil Law – proving negligence

Vicarious Liability

Pursuant with various acts and legislation

Disciplinary Proceedings

Criminal law

Issues arising beyond scope of practice

Coverage Highlights

Professional Liability Coverage (Scope)

General Liability Coverage

Claims made policy form

*Full retroactive / Tail coverage (retirement)

Coverage Territory

Business Clinic Insurance

Clinic Entity / Incorporated

Cyber for clinics

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Resources & Renew www.psychology.bsmgroup.com

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Legal Services

OutcomesTop ten legal issues facing Psychologists

1. Privacy and Confidentiality

2. Disposal of Records

3. Informed Consent

4. Record Keeping

5. Subpoenas

6. Mandatory Reporting

7. College Complaint

8. Civil Claim

9. Expert Opinion

10. Supervision

OutcomesPro Bono Line

646 Calls (30 minutes of free legal advice)

Top 5 Call Categories

1. Record Keeping and Charting Questions

2. Questions about Acting as an Expert Witness / Being Subpoenaed

3. College Complaint (actual or potential)

4. Reporting Obligations

5. Private Practice Questions

Professional Liability Concerns

Call the CPA Hotline: 1-855-441-4424

Go to your College’s website to review:

the applicable legislation and regulations

Standards / Code of Conduct

Policy documents / Practice directives

16

A. Confirm that they are willing to pay for a copy, send a copy to the lawyer

You receive a request for a patient’s chart from a lawyer representing the patient. Before you release the chart, what should you do?

B. Make sure there is an executed authorization permitting you to release the chart and confirm they will pay for a copy before sending C. Ignore it

D. Make a copy and send it to the lawyer, no questions asked

A. Practising beyond your scope of practice

As a psychologist, you are faced with various exposures throughout your daily practice. Some of the areas where legal proceedings may be initiated include:

B. Improper record keeping

C. Lack of consent

D. All of the above

A. Ignore it because it is frivolous

What should you do when you receive a College complaint?

B. Call the investigator from the College and explain what happened

C. Prepare a response and deliver it to the College

D. Call your broker and get legal advice

A. Tell the lawyer why the previous psychologist failed in her/his approach to cognitive behavior therapy.

You receive a letter who is acting on behalf of a current patient of yours. The lawyer then calls you and wants to know your opinion on the effects of the care and treatment previously provided to your patient by another psychologist. How do you respond?

B. Advise the lawyer to set the questions out in writing in addition to the terms and conditions of this retainer for a psychological opinion. C. Respond to the lawyer’s telephone request with a written opinion and then bill the patient for your opinion. D. Ignore - advise your patient that any more calls from his/her lawyer will be grounds for termination of your treating relationship.

A. Decline to attend the meeting until you have received legal advice

You and two other psychologists that you work with at your office are named as defendants in a lawsuit. The office manager wants to have a meeting with the three of you to discuss what happened. How should you respond?

B. Go to the meeting

C. Speak to the other two physiotherapists to develop a strategy for the meeting and then attend the meeting D. Review the chart and then prepare a summary in writing for your manager to review at your meeting

A. Yes

In the event a patient makes a complaint about you to your College, should you continue to provide treatment to that patient?

B. No

A. patient

Who is permitted to file a complaint about a psychologist with your College?

B. Family member or friend of a patient

C. Other colleague

D. All of the above

A. Interview other individuals that you work with

During the investigation of a complaint, your College is not permitted to do the following:

B. Obtain patient records

C. Make unsolicited calls to other patients that you have treated

D. Retain an expert to review your practice

A. Impose limitations on your license

While your College has a number of options available to it when determining, what, if any action, it can take with respect to a complaint, it cannot do the following:

B. Make an award of monetary damages

C. Require you to take educational courses

D. Refer you to a disciplinary hearing

A. Attend and bring only those records requested in the Order.

You have been served with a Court Order to appear in Court with certain confidential medical records relating to a patient on a particular day. What should you do?

B. Call opposing counsel and explain the counselling services provided to your patient in order to avoid going to Court. C. Attend but do not bring the medical records as that would be a breach of patient confidentiality.

D. Attend and bring every possible record that you believe relates to the court proceeding.

A. Terminate the psychologist-patient relationship on the basis of a conflict of interest.

In the course of providing psychological services to a patient, the patient provides you with reasonable grounds to believe that he was sexually assaulted by a psychologist, a close friend of yours, ten (10) years ago. What do you do?

B. File a written report to the Registrar of the College, which sets out the reasonable grounds for your belief. C. Decide not to make a mandatory report against your friend, but warn her about the bald allegations being made by her former patient.

D. Make a note in your chart; continue treating the patient.

A. No

Can a minor or someone with a mental illness provide you with informed consent?

B. Yes, as long as you are confident that the person consenting has the ability to appreciate the nature and consequences of the consent discussion.

C. Yes, but only if a parent, guardian or substitute decision maker also provides consent.

A. Proceed without consent.

If you are to involve a student in a patient’s care you can:

B. Assume the patient consents if they don’t say anything.

C. Have the patient consent to the involvement of the student.

D. Proceed as if the student isn’t there.

A. Do nothing

A couple of days after you see a patient, you realize that you forgot to include pertinent information in the note you made for that visit. How should you address this?

B. Amend the record so that is it accurate

C. Add an addendum to the record with the new information, date it and sign it D. Call the patient for another appointment and then make a new note.

E. Destroy the record, call the College and self-report.

A. The lawyer for the patient

Before disclosing the contents of the chart of a patient to a third party, from whom should you obtain consent?

B. The College

C. The patient

D. Your priest or spiritual advisor

A. Make a note of the day you received the claim and how you received it

If you are served with a statement of claim, you should not:

B. Call you insurer

C. Contact the patient directly and ask them about the claim

D. Review the patient chart and prepare a summary of your recollection of what occurred regarding the treatment you provided

A. 1%

What percentage of civil cases actually make it to a trial?

B. 3%

C. 10%

D. 15%

A. That you breached the standard of care and they sustained damages

In order for a patient to succeed in a claim of negligence against you, they must be able to prove the following:

B. That you breached the standard of care, that the breach of the standard of care caused the patient to become injured and that the patient has sustained damages.

C. They sustained damages

D. None of the above

A. Destroy them

You have decided to retire and close your practice. Knowing that you are obligated to maintain those records for seven years, what are you required to do with the records that you have maintained?

B. Make arrangements to ensure that they are stored in a secure manner in compliance with the College Policy and inform your patients and the College as to where the records can be accessed

C. Send them back to each patient

D. Put them in your basement

A. After checking their identification to confirm they are the parent of the child, provide them with the chart

The parent of a patient who is a minor attends at your office requesting a copy of the chart that you have maintained . How should you respond to the request?

B. Ask them if they can confirm that the minor knows that this request is being made. If they say yes, provide them with the chart

C. Ask them for a written consent from the minor authorizing the release of the chart D. Tell them that you cannot provide them with a copy of the chart, but would be happy to provide them with a verbal summary of the treatment

A. No. Your dealings with the lawyer are subject to litigation privilege.

You have been retained by a lawyer to review the care and treatment provided to a patient by a psychologist. The lawyer advises you to be supportive of the psychologist in your written report and at trial, and to ignore critical facts. Upon cross-examination at trial, do you acknowledge the lawyer’s direction?

B. No. You are retained by the lawyer who is defending the psychologist and owe him/her a duty to defend the case.

C. Yes. Your communications with the lawyer in this instance are not protected by any privilege; further, you have a duty to the Court to provide fair, objective and non-partisan advice.

D. At all times during your expert retainer, you have a duty to the Court to provide fair, objective and non-partisan advice. You never made it to Court as the lawyer discontinued the retainer upon reading your non-biased report.