skip to content

Mandatory and Permissive Reporting

Print page icon

Approved by Council: November 2000
Reviewed and Updated: September 2004, April 2005, September 2005, June 2009. September 2012, October 2017

Other References: "A Duty to Report, A Chance to Protect" Dialogue, Issue 3, 2015

 

Policies of the College of Physicians and Surgeons of Ontario (the “College”) set out expectations for the professional conduct of physicians practising in Ontario. Together with the Practice Guide and relevant legislation and case law, they will be used by the College and its Committees when considering physician practice or conduct.

Within policies, the terms ‘must’ and ‘advised’ are used to articulate the College’s expectations. When ‘advised’ is used, it indicates that physicians can use reasonable discretion when applying this expectation to practice.

Additional information, general advice, and/or best practices can be found in companion resources, such as Advice to the Profession documents.

Physicians have a legal and professional obligation to maintain the confidentiality of patient information. There are circumstances, however, where physicians are either required or permitted to report particular events or clinical conditions to the appropriate government or regulatory agency. This policy sets out circumstances that may require or permit physicians to make a report. The policy does not represent an exhaustive list of physicians’ legal responsibilities, nor is it a substitute for legal advice regarding reporting obligations.

 

Definitions

Mandatory Reports: Mandatory reports are legally required and considered necessary in the public interest. Depending on the origin of the mandatory reporting duty, physicians are required to include specific information and, at times, professional medical opinions in mandatory reports.

Permissive Reports: Permissive reports are rooted in professional responsibility and ethics. While they may be legally permitted in certain circumstances, the decision to make a permissive report is at the physician’s discretion.

 

Policy

General

  1. Physicians must be aware of and comply with the legal, professional and ethical reporting obligations relevant to their practice.1
  2. In order to support a trusting physician-patient relationship, physicians are advised to communicate with patients about their reporting duties, where circumstances make it appropriate to do so.
  3. Physicians are advised to consult with the Canadian Medical Protective Association (CMPA), the Office of the Information and Privacy Commissioner of Ontario (IPC) and/or the College’s Physician Advisory Service (PAS) where they have questions about any of their reporting obligations.

Mandatory Reporting

Listed below are the mandatory reporting obligations captured in this policy. Please use the links below to be directed to more information about each obligation:

Child Abuse or Neglect

  1. Under the Child Youth and Family Services Act (CYFSA), a ‘child in need of protection’ includes a child who has suffered, or is at risk of suffering, physical abuse, sexual abuse, emotional abuse, or neglect.2,3 Physicians who have reasonable grounds4 to suspect a child is or may be in need of protection must immediately report the suspicion, and the information upon which it is based, directly to a children’s aid society5 (CAS).6
  2. Physicians must make a report directly to CAS when:
    1. The child has suffered physical harm, including by way of neglect, or there is a risk that the child is likely to suffer physical harm.7
    2. The child requires treatment to cure, prevent or alleviate physical harm or suffering, and the child’s parent or the person responsible for the child does not provide treatment, or access to the treatment, or, where the child is incapable of consenting to the treatment, refuses, or is unavailable or unable to consent to the treatment.8
    3. The child has been or there is at risk that the child is likely to be sexually abused or sexually exploited, by the person responsible for the child, or by another person and the person responsible knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child.9
    4. The child has suffered or there is a risk that the child is likely to suffer emotional harm10, resulting from the actions, inaction, or pattern of neglect by the child’s parent or the person responsible for the child.11
    5. The child has suffered or is at risk of likely suffering emotional harm, and the child’s parent, or the person responsible for the child does not provide services or treatment, or access to services or treatment, or where the child is incapable of consenting to treatment, refuses or is unavailable or unable to consent to services or treatment to remedy or alleviate the harm.12
    6. The child suffers from a mental, emotional or developmental condition that, if left untreated could seriously impair the child’s development, and the child’s parent or the person responsible for the child does not provide the treatment, or access to the treatment, or where the child is incapable of consenting to the treatment, refuses, or is unable or unavailable to consent to treatment to remedy or alleviate the condition.13
    7. The child’s parent has died, or is unavailable to exercise their custodial rights over the child, and has not made adequate provision for the child’s care and custody.14
    8. The child is in a residential placement and the parent refuses, or is unable or unwilling to resume the child’s care and custody.15
    9. The child is under the age of 12 and has killed or seriously injured another person or caused serious damage to another person’s property and the child’s parent or the person responsible for the child does not provide services or treatment or access to services or treatment, or, where the child is incapable of consenting to treatment, refuses or is unavailable or unable to consent to treatment necessary to prevent a recurrence16
    10. The child is under the age of 12 and has on more than one occasion injured another person or caused loss or damage to another person’s property, with the encouragement of the person responsible for the child or because of that person’s failure or inability to supervise the child adequately.17
  3. Physicians who have reasonable grounds to suspect a child is in need of protection must not rely on any other person to report on their behalf.18
  4. Since the duty to report is ongoing, physicians must make a further report to the CAS if there are additional reasonable grounds to suspect that the child is or may be in need of protection.19

Impaired Driving Ability

  1. Physicians must report20 every individual who is at least 16 years old who attended the physician for an examination or for the provision of medical or other services, who, in the opinion of the physician has or appears to have a prescribed medical condition, functional impairment, or visual impairment, that is not of a distinctly transient or non-recurrent nature,21 including:22
    1. cognitive impairment,23
    2. sudden incapacitation,24
    3. motor or sensory impairment,25
    4. visual impairment,26
    5. substance use disorder,27
    6. psychiatric illness.28,29
  2. For assistance determining whether a reporting obligation under provision #8 exists, physicians are advised to consult the CCMTA Medical Standards for Drivers (2017),30 and the Canadian Medical Association’s Determining Medical Fitness to Operate Motor Vehicles, 9th edition (2017)31.32
  3. If an individual described in provision #8 above does not have or appear to have one of the prescribed conditions, but has or may have another condition or impairment that may make it dangerous for the individual to operate a motor vehicle, physicians must use their professional judgement to determine if a report is warranted.33
  4. Physicians must send reports to the Registrar of Motor Vehicles in the form and manner specified by the Registrar, and include the following information:
    1. the name, address, and date of birth of the individual,
    2. the condition or impairment diagnosed or identified, and a brief description of the condition or impairment, and
    3. any other information requested by the form.34
  5. While it is not necessary to obtain a patient’s consent before making a report under the Highway Traffic Act, where appropriate, physicians are advised to inform the patient in advance of doing so, or in circumstances where the patient was not informed beforehand, after the report has been made.

Long-Term Care and Retirement Homes

  1. Physicians must immediately report their suspicion and the information upon which it is based to the Registrar of the Retirement Homes Regulatory Authority, or long-term care home director when they have reasonable grounds to suspect that a resident of a nursing home or retirement home has suffered harm or is at risk of harm due to improper or incompetent treatment or care, unlawful conduct, abuse or neglect.35
  2. Additionally, physicians must report suspicions of misuse or misappropriation of a resident’s money or of funding provided to a licensee.36

Sexual Abuse of a Patient

  1. When a physician has reasonable grounds, obtained in the course of practising the profession, to believe that another physician or regulated health professional has sexually abused37 a patient, the physician must file a report in writing with the Registrar of the college to which the alleged abuser belongs.38
  2. Where information regarding sexual abuse is obtained from a patient, physicians must use their best efforts to advise the patient of the requirement to file the report before doing so.39
  3. Generally, physicians must file reports within 30 days after the obligation to report arises. However, where the physician has reasonable grounds to believe that the alleged abuse will continue or that the member will sexually abuse other patients, physicians must make the report immediately.40
  4. Physicians must include the following information in their reports:
    1. their name;
    2. the name of the regulated health professional who is the subject of the report;
    3. an explanation of the alleged sexual abuse; and
    4. the name of the patient who may have been sexually abused (if the grounds for reporting are related to a particular patient, and the patient or the patient’s representative, has consented in writing).41
  5. Physicians providing psychotherapy to the alleged abuser, who are able to form an opinion as to whether the alleged abuser is likely to sexually abuse patients in the future, must also include their opinion in the report.42
  6. If the reporting physician ceases to provide psychotherapy to the alleged abuser, the reporting physician must provide an additional report to the same college immediately.43

Facility Operators: Duty to Report Incapacity, Incompetence and Sexual Abuse

Under the Health Professions Procedural Code, physicians or others who operate a facility44 where one or more regulated health professionals practise, have specific reporting obligations. Physicians acting as facility operators are subject to the additional requirements set out below.

  1. Physicians who operate a facility (including but not limited to hospitals and long-term care homes) where one or more regulated health professionals practise, who have reasonable grounds to believe that a regulated health professional practising in the facility is incompetent45, incapacitated46 or has sexually abused a patient, must file a report with the Registrar of the college to which the regulated health professional belongs.47,48 
  2. Generally, when a reporting obligation arises, physicians must make reports within 30 days after the obligation to report arises. However, physicians must report immediately when there are reasonable grounds to believe that:
    1. the regulated health professional will continue to sexually abuse the patient or will sexually abuse other patients; or
    2. the incompetence or incapacity of the regulated health professional is likely to expose a patient to harm or injury and there is urgent need for intervention.49
  3. Physicians must include the following in their reports:
    1. their name,
    2. the name of the regulated health professional who is the subject of the report,
    3. an explanation of the alleged sexual abuse, incompetence, or incapacity, and
    4. if concerns relate to a specific patient, the name of that patient.50
  4. In reports of alleged sexual abuse, physicians must only include patient names with the written consent of the patient or representative.51

Terminating or Restricting Employment, Privileges and Partnerships

Employers and Affiliates52

  1. Physicians who employ or offer privileges to regulated health professionals or who associate in partnership with such professionals (“employers and affiliates”) must report to the relevant college when they terminate the employment of a regulated health professional, or revoke, suspend or restrict their privileges, or dissolve their partnership, health profession corporation or association for reasons of:
    1. professional misconduct,53
    2. incompetence,54 or
    3. incapacity55.56
  2. Physicians who are “employers and affiliates” must make a report when a regulated health professional resigns, or voluntarily relinquishes or restricts their privileges, if:
    1. they have reasonable grounds to believe that the resignation, relinquishment or restriction of the regulated health professional is related to that member’s professional misconduct, incompetence or incapacity;57 or
    2. the resignation, relinquishment or restriction takes place during or as a result of an investigation, conducted by or on behalf of the employer or affiliate, into allegations related to that member’s professional misconduct, incompetence or incapacity.58
  3. Physicians must include the following details of the event in their reports:
    1. the reasons for the event or intended event,
    2. the grounds upon which their belief is based, or
    3. the nature of the allegations being investigated.59
  4. Physicians must make all reports in writing and send them to the Registrar of the appropriate college within 30 days after the obligation to report arises.60

Public Hospitals

  1. Physicians acting as hospital administrators must provide a detailed report to the College of Physicians and Surgeons of Ontario (CPSO) in the following circumstances:61
    1. A physician’s application for appointment or reappointment to the medical staff of a hospital is rejected, or the physician’s privileges are restricted or cancelled, due to the physician’s incompetence, negligence, or misconduct;62
    2. A physician resigns from the medical staff of a hospital or restricts his or her practice within a hospital and there are reasonable grounds to believe that the resignation or restriction is related to the physician’s competence, negligence or conduct;63
    3. A physician resigns from the medical staff of a hospital or restricts his or her practice within a hospital during or as a result of an investigation into the physician’s competence, negligence or conduct.64

Births, Still-births and Deaths

Live Births

  1. Physicians attending the birth of a child must give notice of the birth to the Registrar General, in the form approved by the Registrar General, within two business days.65

Still-births

  1. Physicians attending a still-birth must give notice of the still-birth to the Registrar General, within two business days.66
  2. Physicians must also complete a medical certificate of still-birth setting out the cause of the still-birth, and deliver the medical certificate of still-birth to the funeral director in charge of the body for the purpose of burial, cremation or other disposition.67
  3. Physicians must provide both the notice of still-birth and medical certificate of still-birth in the form approved by the Registrar General.68
  4. If there is no physician in attendance at the still-birth, or there is reason to believe the still-birth has occurred as a result of negligence, malpractice, misconduct or under circumstances that require investigation, physicians who are appointed as coroners must complete the medical certificate.69

Deaths70

  1. A physician who has been in attendance during the last illness of a deceased person, or who has sufficient knowledge of the last illness, must complete and sign a medical certificate of death in the form approved by the Registrar General.
  2. Physicians must:
    1. State the cause of death according to the International Statistical Classification of Diseases and Related Health Problems, as published by the World Health Organization, in the certificate; and
    2. Deliver the certificate to the funeral director immediately.71

Notification of Coroner

  1. Physicians must immediately notify a coroner or police officer if there is reason to believe that an individual has died:
    1. as a result of violence, misadventure, negligence, misconduct or malpractice;
    2. by unfair means;
    3. during pregnancy or following pregnancy in circumstances that might be reasonably attributed to the pregnancy;
    4. suddenly and unexpectedly;
    5. from disease or sickness for which he or she was not treated by a legally qualified medical practitioner;
    6. from any cause other than disease; or
    7. under circumstances that may require investigation.72
  2. Physicians must include the facts and circumstances relating to the death in their notifications.73
  3. Physicians who are appointed as coroners are advised to consult the Coroners Act to understand their obligations.

Communicable Diseases and Diseases of Public Health Significance

  1. Physicians must report to the Medical Officer of Health of the health unit in which the professional services were provided, as soon as possible74 when, in the course of providing professional services, they have formed the opinion that an individual:
    1. has or may have a disease of public health significance75 and is not a patient in or an out-patient of a hospital;76
    2. is or may be infected with an agent of a communicable disease;77
    3. is under the care and treatment of the physician for a communicable disease, but refuses treatment, or neglects to continue treatment in a manner and to a degree that is satisfactory to the physician.78
  2. Where reports are made in relation to communicable diseases or diseases of public health significance, physicians must include the following information about the individual involved:
    1. name and address in full, and if available, any other contact information;79
    2. date of birth in full;
    3. sex; and
    4. date of onset of symptoms.80
  3. For reports regarding the refusal of treatment for a communicable disease, or the neglect to continue with treatment for a communicable disease to the satisfaction of the physician, physicians must include the name and address of the individual.
  4. Some diseases require additional information in the report. Physicians are advised to consult the Reports Regulation for more information about their specific reporting obligations.81
  5. If the Medical Officer of Health requires additional information, physicians must provide the information upon request.82

Duty to Report Death Due to a Disease of Public Health Significance

  1. Any physician who signs a death certificate indicating that the cause of death of an individual was a disease of public health significance, or that a disease of public health significance was a contributing cause of death, must report this to the Medical Officer of Health for the health unit in which the death occurred.83
  2. Physicians must make the report as soon as possible after signing the certificate.84

Eyes of New-Born

  1. When a physician attends the birth of a child and is aware that an eye of the new-born child has become reddened, inflamed or swollen, the physician must make a written report to the Medical Officer of Health within two weeks of the child’s birth and include the following information in their report:
    1. the name, age, and home address of the child;
    2. the whereabouts of the child (if not at home); and
    3. the conditions of the eye that the physician has observed.85

Rabies

  1. Physicians who have information about an animal bite or animal contact that may result in rabies in persons, must notify the Medical Officer of Health as soon as possible and provide the Medical Officer of Health with the required information.86

Reactions to Immunizations

  1. If any of the following events occurs as a result of administering an immunizing agent87 and the physician is of the opinion that the event may be related to the immunization, physicians must make a report to the Medical Officer of Health of the health unit in which the professional services were provided within seven days of the event:88
    1. persistent crying or screaming, anaphylaxis or anaphylactic shock occurring within 48 hours of being immunized;
    2. shock-like collapse, high fever or convulsions occurring within three days of being immunized;
    3. arthritis occurring within 42 days of being immunized;
    4. generalized urticarial, residual seizure disorder, encephalopathy, encephalitis, or any other significant occurrence occurring within 15 days of being immunized; or
    5. death occurring at any time and following upon a symptom as described above.

Controlled Drugs and Substances

  1. When a physician discovers or is informed that a controlled substance (including a targeted substance,89 a narcotic,90 or a controlled drug91) has been lost or stolen from their office, the physician must report the loss or theft to the Office of Controlled Substances, Federal Minister of Health, within 10 days.92

Community Treatment Plans

  1. Physicians involved in the care of mentally ill patients who are following community treatment plans, have specific reporting duties under the Mental Health Act, and its regulations.93 Where a physician issues an order for examination,94 the physician must ensure the police:
    1. have complete and up-to-date contact information of the physician responsible for completing the examination (including name, address and telephone number),
    2. are provided with any information that has changed, and
    3. are informed immediately if the patient attends the examination or if the order is revoked for any other reason before it expires.95

Gunshot Wounds

The Mandatory Gunshot Wounds Reporting Act, 2005 requires every facility96 that treats a person for a gunshot wound to report to police, as soon as is practical, the fact that a person is being treated for a gunshot wound, the person’s name, if known, and the name and location of the facility.97

  1. Physicians working in designated facilities must comply with any policies and procedures of the facility to enable the reporting obligations to be met.

Pilots or Air Traffic Controllers

  1. Under the Aeronautics Act,physicians must report patients they believe, on reasonable grounds, to be a flight crew member, an air traffic controller, or to hold a Canadian aviation document that imposes standards of medical or optometric fitness, where the physician is of the opinion that the patient has a medical or optometric condition that is likely to constitute a hazard to aviation safety.98
  2. Physicians must make the report to a medical advisor designated by the federal Ministry of Transportation, or to a medical advisor designated by the federal Minister of National Defence, if the report relates to a matter of defence99 and provide the following information:
    1. the physician’s opinion regarding the patient’s condition, and
    2. the information upon which the opinion is based.100

Maritime Safety

  1. Under the Canada Shipping Act, physicians must inform the Ministry of Transportation without delay if they believe on reasonable grounds that the holder of a certificate issued under the Act has a medical or optometric condition that is likely to constitute a hazard to maritime safety.
  2. Physicians must provide the following information in the report:
    1. the physician’s opinion regarding the patient’s condition, and
    2. the information upon which the opinion is based.101

Railway Safety

  1. Under the Railway Safety Act, physicians must notify the railway company’s Chief Medical Officer when they believe on reasonable grounds that a patient, occupying a position that is critical to railway safety,102 has a condition that is likely to pose a threat to safe railway operations.103
  2. Physicians must first take reasonable steps to notify the patient, prior to sending a notice to the railway company’s Chief Medical Officer.
  3. In relation to the notification, physicians must:
    1. make notifications without delay,
    2. indicate the physician’s opinion regarding the condition, and the information upon which the opinion is based;
    3. provide the patient with a copy of the notice.104

Occupational Health and Safety

  1. Under theOccupational Health and Safety Act physicians who conduct medical examinations on individuals in relation to employment conditions or hazards have a number of reporting requirements105 and are advised to consult the legislation to understand their obligations.

Correctional Facilities

  1. Physicians who are treating or attending to inmates at a provincial correctional facility must immediately provide a written report to the Superintendent of the facility when an inmate is seriously ill, injured, or unable to work due to illness or disability106 and include the nature of the injury and the treatment provided.
  2. Where reports relate to illness or disability, physicians must also include whether the inmate is unfit to work or the work should be changed, if applicable.107
  3. Physicians who are of the opinion that a detainee is infected or may be infected with an agent of a communicable disease, must immediately notify the Medical Officer of Health of the health unit in which the institution is located.108
  4. Where physicians are required, by court order, to report the results of a medical and/or psychological assessment of a young person to the court, physicians are advised to consult the Youth Criminal Justice Act109 for further details.

 Preferential Access to Health Care

  1. When, in the course of professional duties, a physician has reason to believe that a person (either another physician or an individual) or entity has paid or conferred a benefit, or charged or accepted payment of a benefit in exchange for improved access to an insured health service, the physician must report the matter to the General Manager of the Ontario Health Insurance Plan.110

Health Card Fraud

  1. Under the Health Insurance Act, physicians must promptly report instances of health card fraud to the General Manager of OHIP, including the following situations:
    1. An ineligible person111 receives or attempts to receive an insured service as if they were an insured person.
    2. An ineligible person obtains or attempts to obtain reimbursement by the Ontario Health Insurance Plan (OHIP) for money paid for an insured service as if he or she were an insured person.
    3. An ineligible person, in an application, return or statement made to OHIP or the General Manager, gives false information about his or her residency.112,113

Privacy Breaches

Privacy breach refers to any unauthorized collection, use, disclosure, retention or disposal of personal health information114. The Personal Health Information Protection Act, 2004 (PHIPA) requires reporting of privacy breaches in a number of instances. Those duties pertinent to physicians are set out below.

Reporting to Affected Individuals

  1. Where personal health information is stolen, lost or used or disclosed without authority, physicians acting as health information custodians (custodians) must notify individuals about the breach and their entitlement to make a complaint to the Information and Privacy Commissioner (IPC), at the first reasonable opportunity.115,116

  2. As part of the notification, physicians must disclose the following to affected individuals:117

    1. details of the breach, including the extent of the breach and what personal health information was involved;
    2. the steps the physician has taken to address the breach, including if the breach has been reported to the IPC; and
    3. contact information for someone within the organization who can provide additional information, assistance and answer questions.
  3. When determining the most appropriate form of notification (i.e., by telephone, in writing, or in person at the next appointment) physicians must consider factors such as the sensitivity of the personal health information.118
  4. For more information about obligations related to a privacy breach, physicians are advised to contact the IPC directly and/or refer to the IPC’s guidance documents.119

Reporting to Regulatory Colleges

  1. Physicians acting as custodians, who employ, extend privileges to, or are otherwise affiliated with physicians or other regulated health professionals120 must to notify the relevant regulatory body (such as the CPSO) if any of the following events occur:
    1. The regulated health professional’s employment is terminated or suspended, or the regulated health professional is subject to disciplinary action, as a result of a privacy breach by the regulated health professional;121
    2. The regulated health professional resigns, and the custodian has reasonable grounds to believe that the resignation is related to an investigation or other action by the custodian with respect to an alleged privacy breach by the regulated health professional;122
    3. The regulated health professional’s privileges or affiliation with the custodian are revoked, suspended or restricted as a result of a privacy breach by the regulated health professional;123
    4. The regulated health professional relinquishes or voluntarily restricts his or her privileges or affiliation with the custodian, and the custodian has reasonable grounds to believe that the relinquishment or restriction is related to an investigation or other action by the custodian with respect to an alleged privacy breach by the regulated health professional.124,125
  2. Physicians acting as custodians must give written notice of any of the events described above to the appropriate college within 30 days of the event occurring.126

Reporting to Information and Privacy Commissioner

  1. Physicians acting as custodians must notify the IPC if at least one of the following situations occurs where an individual’s personal health information is stolen, lost or used or disclosed without authority:127
    1. The custodian has reasonable grounds to believe that personal health information in their custody or control was used or disclosed without authority by a person who knew or ought to have known that they did not have authority to use or disclose the information.128
    2. The custodian has reasonable grounds to believe that personal health information in their custody or control was stolen.129
    3. The custodian has reasonable grounds to believe that, after an initial loss or unauthorized use or disclosure of personal health information in their custody or control, the personal health information was or will be further used or disclosed without authority.130
    4. The loss or unauthorized use or disclosure of personal health information is part of a pattern of similar losses or unauthorized uses or disclosures of personal health information in the custody or control of the custodian.131
    5. The custodian is required to notify a college regarding the employment, privileges or affiliation of a regulated health professional (as outlined above), in circumstances involving the loss or unauthorized use or disclosure of personal health information.132
    6. The custodian would be required to notify a college regarding the employment, privileges or affiliation of an agent (a person who acts for or on behalf of the custodian)133 if the agent were a regulated health professional, in circumstances involving the loss or unauthorized use or disclosure of personal health information.134
    7. The custodian determines that the loss or unauthorized use or disclosure of personal health information is significant.135 When determining whether a breach is significant, consideration must be given to all relevant circumstances, including the following:
      1. Whether the personal health information that was lost or used or disclosed without authority is sensitive;136
      2. Whether the loss or unauthorized use or disclosure involved a large volume of personal health information;137
      3. Whether the loss or unauthorized use or disclosure involved many individuals’ personal health information;138 and
      4. Whether more than one health information custodian or agent was responsible for the loss or unauthorized use or disclosure of the personal health information.139

Tracking Breaches and Annual Reports 

  1. Physicians acting as custodians must provide the IPC with an annual report setting out the number of times in the previous calendar year that personal health information in the custodian’s custody or control was stolen, lost, or used or disclosed without authority.140
  2. Physicians must submit reports to the IPC electronically by March 1st each year, in the format determined by the Commissioner.141,142

Reporting Offences, Professional Negligence and Malpractice, Findings by Another Professional Regulatory Body, and Charges and Bail Conditions

  1. Physicians must provide a written report to the Registrar of the CPSO as soon as reasonably practicable in the following circumstances:
    1. They have been found guilty of an offence;143
    2. A finding of professional negligence or malpractice has been made against them;144
    3. A finding of professional misconduct or incompetence has been made against them by another professional regulatory body, inside or outside of Ontario;145
    4. They have been charged with an offence. The report must include information about every bail condition or other restriction imposed on, or agreed to, by the physician in connection with the charge.146
  2. Physicians must submit the report as soon as reasonably practicable after they receive notice of the finding or of the charge, bail condition or restriction.147
  3. For reports related to offences, physicians must include:
    1. their name;
    2. the nature of, and a description of the offence;
    3. the date they were found guilty of the offence;
    4. the name and location of the court that found them guilty of the offence; and
    5. the status of any appeal initiated respecting the finding of guilt.148
  4. For reports related to findings of professional negligence and malpractice, physicians must include:
    1. their name;
    2. the nature of, and a description of the finding;
    3. the date that the finding was made against them;
    4. the name and location of the court that made the finding against them; and
    5. the status of any appeal initiated respecting the finding made against them.149
  5. For reports related to findings of professional misconduct or incompetence by another professional regulatory body, physicians must include:
    1. their name;
    2. the nature of, and a description of the finding;
    3. the date the finding was made against them;
    4. the name and location of the body that made the finding against them; and
    5. the status of any appeal initiated respecting the finding made against them.150
  6. For reports related to charges and bail condition or other restrictions, physicians must include:
    1. their name;
    2. the nature of, and a description of, the charge;
    3. the date the charge was laid against them;
    4. the name and location of the court in which the charge was laid or in which the bail condition or restriction was imposed on or agreed to by the physician;
    5. every bail condition imposed on the physician as a result of the charge;
    6. any other restriction imposed on or agreed to by the physician relating to the charge; and
    7. the status of any proceedings with respect to the charge.151
  7. Physicians must not include any information that violates a publication ban in their report.152
  8. If there is a change in status of the finding that results from an appeal, or a change in status of the charge or bail conditions, physicians must submit an additional report to the Registrar.153

Permissive Reports

There are circumstances where the disclosure of personal information is permitted by law or based in professionalism and ethics. Listed below are two instances in particular where reports by physicians are permissible.154,155

Disclosure to Prevent Harm

  1. Under PHIPA, physicians are permitted to disclose personal health information about an individual if they have reasonable grounds to believe disclosure is necessary to eliminate or reduce significant risk of serious bodily harm to a person or group of persons.156 Physicians must use their professional judgment to determine whether a report is necessary to reduce or eliminate risk of harm, considering factors such as the following:
    1. there is a clear risk to an identifiable person or a group of persons;
    2. there is a risk of serious bodily harm or death; and
    3. the danger is imminent.157
  2. Where disclosure of confidential information is necessary to reduce or eliminate risk of harm, physicians must only include the information necessary to prevent the harm.

Physician Incapacity and Incompetence

The College’s expectations with respect to physician incapacity and incompetence are based in professionalism and ethics. They are distinct from the legal obligation contained in the Health Professions Procedural Code, which requires health facility operators to report incapacity and incompetence.

  1. Physicians must take appropriate and timely action when they have reasonable grounds to believe that another physician or health-care professional is incapacitated158 or incompetent159, including circumstances where a colleague’s pattern of care, health or behaviour poses a risk to patient safety. Depending on the circumstances, appropriate action may include:
    1. Contacting the Physician Health Program at the Ontario Medical Association,
    2. Contacting the College’s Physician Advisory Service,
    3. Contacting the individual’s friends and family and/or employer, and
    4. Notifying the individual to whom the physician is accountable (e.g., in a clinic or hospital setting)
 

Endnotes

1. Generally physicians are protected from legal action when complying, in good faith, with reporting obligations.  In some instances, physicians who fail to report their suspicions may be guilty of an offence punishable by fine or subject to disciplinary proceedings.

2. Section 74(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (hereinafter CYFSA).

3. As set out in section 125(4) of the CYFSA  the duty to report does not apply to older children (i.e., 16 and 17 years old); however, physicians may make a report for children 16 or 17 years of age if the described circumstance or condition exists.

4. The Ontario Ministry of Children and Youth Services, which administers the CYFSA, has defined “reasonable grounds” in this context as the information that an average person, using normal and honest judgment, would need in order to decide to report. Government of Ontario, Reporting Child Abuse and Neglect (Ontario: Ministry of Children and Youth Services, 2010).

5. Children’s aid societies are known as “family and children’s services” in some communities.

6. Section 125(1) of the CFYSA; Physicians are not obligated to report suspicions of abuse to the police. However, if information provided by the physician to the CAS alleges that a criminal offence has been perpetrated against a child, the CAS will immediately inform the police, and work with the police according to established protocols for investigation  (Government of Ontario, Child Protection Standards in Ontario (Ontario: Ministry of Children and Youth Services, 2007)).

7. CYFSA 125(1) paras 1 and 2.

8. CFSA 125(1) para 5.

9. CYFSA 125(1) para 3.

10. CYFSA 125(1) para 6; emotional harm is demonstrated by serious: anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.

11. CYFSA 125(1) para 8.

12. CYFSA 125(1) paras 7 and 9.

13. CYFSA 125(1) para 10.

14. CYFSA 125(1) para 11.

15. CYFSA 125(1) para 11.

16. CYFSA 125(1) para 12.

17. CYFSA 125(1) para 13.

18. Section 125(3) CYFSA.

19. Section 125(2) CYFSA. There is no ongoing duty for a child who is 16 or 17 years old however s. 125(4) of the CYFSA provides for permissive reporting for older children.

20. A report by a physician under the Highway Traffic Act will not automatically result in the suspension or downgrading of the patient’s licence. Upon receipt, the Ministry of Transportation will review information received in accordance with the Highway Traffic Act and national medical standards. The national medical standards are those published by the Canadian Council of Motor Transport Administrators (CCMTA), and are referenced in Section 14(2) of Drivers’ Licences, O. Reg. 340/94 enacted under the Highway Traffic Act (hereinafter Highway Traffic Act, Drivers’ Licences Regulation).

21. Section 203(1) and 203(4) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (hereinafter HTA) and section 14.1(4) of Highway Traffic Act, Drivers’ Licences Regulation; the Medical Condition Report form is available for physicians to use when reporting a patient and is available on the Ministry of Transportation’s website.

22. Section 14.1(3) of Highway Traffic Act, Drivers’ Licences Regulation.

23. A disorder resulting in cognitive impairment that,

  1. affects attention, judgment and problem solving, planning and sequencing, memory, insight, reaction time or visuospatial perception, and
  2. results in substantial limitation of the person’s ability to perform activities of daily living.

24. A disorder that has a moderate or high risk of sudden incapacitation, or that has resulted in sudden incapacitation and that has a moderate or high risk of recurrence.

25. A condition or disorder resulting in severe motor impairment that affects co-ordination, muscle strength and control, flexibility, motor planning, touch or positional sense.

26. A best corrected visual acuity that is below 20/50 with both eyes open and examined together; a visual field that is less than 120 continuous degrees along the horizontal meridian, or less than 15 continuous degrees above and below fixation, or less than 60 degrees to either side of the vertical midline, including hemianopia; Diplopia that is within 40 degrees of fixation point (in all directions) of primary position, that cannot be corrected using prism lenses or patching.

27. A diagnosis of an uncontrolled substance use disorder, excluding caffeine and nicotine, and the person is non-compliant with treatment recommendations.

28. A condition or disorder that currently involves acute psychosis or severe abnormalities of perception such as those present in schizophrenia or in other psychotic disorders, bipolar disorders, trauma or stressor-related disorders, dissociative disorders or neurocognitive disorders, or the person has a suicidal plan involving a vehicle or an intent to use a vehicle to harm others.

29. Physicians are not required to report modest or incremental changes in ability that, in the prescribed person’s opinion, are attributable to a process of natural aging, unless the cumulative effect of the changes constitutes a condition or impairment described in provision 8.

30. This document is published by the Canadian Council of Motor Transport Administrators and available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

31. This document is available on the internet through the website of the Canadian Medical Association.

32. Section 14.1(6) of Highway Traffic Act, Drivers’ Licences Regulation.

33. Section 203 (2) of HTA.

34. Section 204 (1) of HTA.

35. Sections 24(1) and 24(4)of the Long-Term Care Homes Act, 2007, S.O. 2007, c.8 (hereinafter Long-Term Care Homes Act) and Sections 75(1) and 75(3) of the Retirement Homes Act, 2010, S.O. 2010, c.11.

36. Section 24(1) Long-Term Care Homes Act; Section 2(1) of the Long-Term Care Homes Act defines ‘licensee’ as the holder of a licence issued under the Long-Term Care Homes Act, and includes the municipality or municipalities or board of management that maintains a provincially approved municipal home, joint home or First Nations home.

37. Section 1(3) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1001, c.18 (hereinafter HPPC), defines sexual abuse of a patient by a member as: (a) sexual intercourse or other forms of physical sexual relations between the member and the patient (b) touching, of a sexual nature, of the patient by the member, or (c) behaviour or remarks of a sexual nature by the member towards the patient.

38. Section 85.1(1) and 85.3(1) of the HPPC. Under section 85.1(2) of the HPPC physicians are not required to file a report if the name of the regulated health professional who would be the subject of the report is not known.

39. Section 85.1(3) of the HPPC.

40. Section 85.3(2) of the HPPC.

41. Sections 85.3 (3) and 85.3(4) of the HPPC.

42. Section 85.3 (5) of the HPPC.

43. Section 85.4(1) and 85.4(2) of the HPPC.

44. The terms ‘facility’ and ‘facility operator’ are not defined in the RHPA or the HPPC. For the purposes of providing guidance to the profession, the CPSO relies on the definition of “health facility” contained in the Independent Health Facilities Act, R.S.O. 1990, c.I.3, as a working definition. The Independent Health Facilities Act (IHFA) defines “health facility” as a place in which one or more members of the public receive health services and includes an independent health facility (s.1(1) IHFA).

45. Section 52(1) of the HPPC states that a panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted.

46. Section 1(1) of the HPPC states that “incapacitated” means, in relation to a member, that the member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member’s certificate of registration be subject to terms, conditions or limitations, or that the member no longer be permitted to practise.

47. Section 85.2(1) and 85.3(1) of the HPPC.

48. Under section 85.2(3) of the HPPC facility operators are not required to file a report if the name of the regulated health professional who would be the subject of the report is not known.

49. Section 85.3(2) of the HPPC.

50. Sections 85.3(3) of the HPPC.

51. Sections 85.3(4) of the HPPC.

52. As set out in Section 85.5(3) of the HPPC, this section applies to every person, other than a patient, who employs or offers privileges to a member or associates in partnership or otherwise with a member for the purpose of offering health services. 

53. Section 51(1) of the HPPC states that a panel shall find that a member has committed an act of professional misconduct if:

(a) the member has been found guilty of an offence that is relevant to the member’s suitability to practise;

(b) the governing body of a health profession in a jurisdiction other than Ontario has found that the member committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct as defined in the regulations;

(b.0.1) the member has failed to co-operate with the Quality Assurance Committee or any assessor appointed by that committee;

(b.1) the member has sexually abused a patient; or

(c) the member has committed an act of professional misconduct as defined in the regulations.

54. Please see footnote 45 for the definition of incompetence.  

55. Please see footnote 46 for the definition of incapacity.

56. Section 85.5(1) of the HPPC

57. Section 85.5(2) paragraph 1 of the HPPC.

58. Section 85.5(2), paragraph 2 of the HPPC.

59. Section 85.5(1), 85.5(2), paragraph 1, and 85.5(2), paragraph 2 of the HPPC.

60. Section 85.5(1) and 85.5(2) of the HPPC.

61. Section 33 of the Public Hospitals Act, R.S.O. 1990, c. P. 40 (hereinafter Public Hospitals Act).

62.. Section 33(a) and 33(b) of the Public Hospitals Act.

63. Section 33(c) of the Public Hospitals Act.

64. Section 33(d) of the Public Hospitals Act.

65. Section 8 of the Vital Statistics Act, R.S.O. 1990, c. V.4 (hereinafter Vital Statistics Act); Section 1(2) and (3) of General, R.R.O. 1990, Regulation 1094 enacted under the Vital Statistics Act (hereinafter Vital Statistics Act, General Regulation).

66. Section 19(3), paragraph (a) of the Vital Statistics Act, General Regulation.

67. Section 20 of the Vital Statistics Act, General Regulation.

68. Section 9.1 of the Vital Statistics Act; Sections 19(2) and 20 (1) of the Vital Statistics Act, General Regulation.

69. Section 20(1), paragraphs 2 and 3 of the Vital Statistics Act, General Regulation.

70. For guidance related to reporting deaths resulting from medical assistance in dying to the Coroner, please refer to the College’s Medical Assistance in Dying policy.

71. Section 21 of the Vital Statistics Act; Sections 35(2) and 70 of the Vital Statistics Act, General Regulation.

72. Section 10(1) of the Coroners Act, R.S.O. 1990, c. C. 37 (hereinafter Coroners Act).

73. Section 10(1) of the Coroners Act.

74. Section 25(1), 26, 27(1), and 34(1) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (hereinafter HPPA).

75. A list of diseases of public health significance is contained in the Designation of Diseases, O. Reg 135/18 enacted under the HPPA (hereinafter HPPA, Designation of Diseases Regulation). A copy of this list can be obtained from the local Medical Officer of Health.

76. Section 25(1) of HPPA; under section 27(1) of HPPA the reporting duty of hospital administrators arises if an entry in the hospital record states that a patient or an out-patient of the hospital has or may have a disease of public health significance, or may be infected with an agent of a communicable disease.

77. A list of communicable diseases is contained in the Designation of Diseases Regulation. A copy of this list can be obtained from the local Medical Officer of Health.

78. Section 34(1) of the HPPA.

79. An exception exists to the requirement to include a patient’s name and address. Section 5.1(2) of Reports, R.R.O. 1990, Reg. 569, enacted under the HPPA (hereinafter HPPA, Reports Regulation)sets out that when patients infected with an agent of AIDS receive testing in a designated clinic and are provided with counselling about preventing transmission, the patient’s name and address are not required in the report. Schedule 1 of the HPPA, Reports Regulation sets out 50 clinics across the province where anonymous HIV testing is offered.

80. Section 1(1) of the HPPA, Reports Regulation.

81. For a list of diseases and their specific reporting requirements please see HPPA, Reports Regulation.

82. Section 1(2) of the HPPA, Reports Regulation.

83. Section 30 of the HPPA.

84. Section 30 of the HPPA; Physicians are advised to consult the HPPA, Reports Regulation for information regarding the specific contents of these reports.

85. Section 33(1) of the HPPA; Section 1, paragraph 2 of Communicable Diseases – General, R.S.O. 1990, Regulation 557 enacted under the HPPA (hereinafter HPPA, Communicable Diseases – General Regulation).

86. Section 2(1) of the HPPA, Communicable Diseases – General Regulation.

87. Section 38(1) of the HPPA defines an “immunizing agent” as a vaccine or combination of vaccines administered for immunization against any disease specified in this Act or the regulations; see HPPA, Designation of Diseases Regulation for a list of diseases against which immunizing agents are used.  

88. Sections 38(1) and 38(3) of the HPPA.

89. A list of targeted substances is contained in Schedule 2 of the Benzodiazepines and Other Targeted Substances Regulations, SOR/2000-217, enacted under the Controlled Drugs and Substances Act, S.C. 1996, c.19.

90. A list of narcotics is contained in the Schedule to the Narcotic Control Regulations, C.R.C., c. 1041, enacted under the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

91. A list of controlled drugs is contained in the Schedule G to Part G of the Food and Drug Regulations, C.R.C., c. 870, enacted under the Food and Drugs Act, R.S.C., 1985, c. F-27.

92. Sections 7(1) and 61(2) of the Benzodiazepines and Other Targeted Substances Regulations, enacted under the Controlled Drugs and Substances Act; Section 55(g) of the Narcotic Control Regulations, enacted under the Controlled Drugs and Substances Act.

93. Mental Health Act, R.S.O. 1990, c. M.7 (hereinafter Mental Health Act); General R.R.O. 1990, Reg. 741, enacted under the Mental Health Act, R.S.O. 1990, c. M.7 (hereinafter Mental Health Act Regulations).

94. Sections 33.3(1), 33.3(2) and 33.4(3) of the Mental Health Act provide that physicians may issue an order for examination if they have reason to believe that the patient is not attending appointments, or is otherwise failing to comply with his or her treatment plan, or the patient (or substitute decision maker) withdraws consent for the treatment plan and refuses to allow the physician to review his or her condition. Section 33.5 of the Mental Health Act provides that physicians who issue or renew a community treatment order are responsible for the general supervision and management of the order.

95. Section 7.4 of the Mental Health Act Regulations.

96. Facilities charged with this obligation are public hospitals, and prescribed organizations or institutions that provide health care services. This reporting obligation may be extended to clinics and medical doctors’ offices by regulation, however no regulations were in place as of September 2019.

97. Section 2(1) of the Mandatory Gunshot Wounds Reporting Act, 2005, S.O. 2005, c.9. The disclosure must be made orally, and as soon as it is reasonably practical to do so, without interfering with the person’s treatment or disrupting the regular activities of the facility.

98. Sections 3 and 6.5(1) of the Aeronautics Act, R.S.C. 1985, c. A.2 (hereinafter Aeronautics Act); further information on medical conditions of interest and reporting procedures can be found on the Transport Canada website, or by contacting the local Civil Aviation Medicine office.

99. Section 6.5(1) of the Aeronautics Act; Under Section 3 of Aeronautics Act, a matter relating to defence includes any matter relating to military personnel or a military aircraft, military aerodrome, or military facility of Canada or a foreign state.

100. Section 6.5(1) of the Aeronautics Act.

101. Section 90(1) of the Canada Shipping Act, 2001, S.C. 2001, c.26 (hereinafter Canada Shipping Act); visit the Transport Canada website, or contact the Marine Medicine office by phone for additional information on medical conditions of interest and reporting procedures.

102. Under Section 35(3) of the Railway Safety Act, R.S.C. 1985, c. 32 (hereinafter Railway Safety Act), at the time of any examination, patients must inform the physician if they hold a safety critical position.

103. Section 35(2) of the Railway Safety Act; Transport Canada has published a document titled Railway Medical Rules. This document, which is available on the Transport Canada website, provides guidance for physicians who examine patients in positions that are critical to railway safety.

104. Section 35(2) of the Railway Safety Act.

105. Occupational Health and Safety Act, R.S.O. 1990, c.0.1.

106. Section 4(3) of the General R.R.O. 1990, Regulation 778, enacted under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (hereinafter MCSA, General Regulation).

107. Section 4(4)(c) and 4(5) of the MCSA, General Regulation.

108. Section 37(1) of the HPPA.

109. Youth Criminal Justice Act, S.C. 2002, c.1, including sections 34(1) and 34(14).

110. Sections 17(1) and 17(2) of the Commitment to the Future of Medicare Act, 2004, S.O. 2004, c.5; Section 7(1) of General Regulations, O. Reg. 288/04, enacted under the Commitment to the Future of Medicare Act, 2004, S.O. 2004, c.5.

111. Section 43.1(3) of the Health Insurance Act, R.S.O. 1990, c. H.6 (hereinafter Health Insurance Act), defines an “ineligible person” as a person who is neither an insured person nor entitled to become one.

112. Sections 43.1(1) and (2) of the Health Insurance Act; Section 1(1), paragraph 1 of the Health Fraud Regulation, O. Reg. 173/98, enacted under the Health Insurance Act.

113. Section 43.1(1) of the Health Insurance Act; Sections 43.1(5) and 43.1(6) of the Health Insurance Act provide that physicians may also make a voluntary report relating to the administration of the Act even if the information reported is confidential or privileged and despite any Act, regulation or other law prohibiting disclosure of the information.

114. The definition of personal health information is set out in Section 4(1) of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (hereinafter PHIPA) as well as in the College’s Confidentiality of Personal Health Information policy.

115. Section 12(2)(a) and 12(2)(b) of PHIPA.

116. Section 12(4) of PHIPA provides for an exception to the notification requirement if the custodian is a researcher and specific conditions are met. Further exceptions may be established by regulation, however no such regulations are in force as of September, 2019.

117. Responding to a Health Privacy Breach: Guidelines for the Health Sector.

118. Responding to a Health Privacy Breach: Guidelines for the Health Sector.

119. For example: Responding to a Health Privacy Breach: Guidelines for the Health Sector, Reporting a Privacy Breach to the IPC, and Annual Reporting of Privacy Breach Statistics to the Commissioner.

120. The obligations described in this section also arise if the employee is a member of the Ontario College of Social Workers and Social Service Workers.

121. Section 17.1(2) para. 1 of PHIPA.

122. Section 17.1(2) para. 2 of PHIPA.

123. Section 17.1(5) para. 1 of PHIPA.

124. Section 17.1(5) para. 2 of PHIPA.

125. A custodian who is a medical officer of health has specific reporting obligations in respect of its agents. See Section 17.1(3)(4) of PHIPA.

126. Section 17.1(2) and 17.1(5) of PHIPA.

127. Section 12(3) of PHIPA.

128. Section 6.3(1)1 of General Regulations, O. Reg. 224/17, s. 1, enacted under PHIPA (hereinafter PHIPA, General Regulation).

129. Section 6.3(1)2 of PHIPA, General Regulation.

130. Section 6.3(1)3 of PHIPA, General Regulation.

131. Section 6.3(1)4 of PHIPA, General Regulation.

132. Section 6.3(1)5 of PHIPA, General Regulation.

133. The full definition of “agent” is set out in Section 2 of PHIPA.

134. Section 6.3(1)6 of PHIPA, General Regulation.

135. Section 6.3(1)7 of PHIPA, General Regulation.  

136. Section 6.3(1)7i of PHIPA, General Regulation.

137. Section 6.3(1)7ii of PHIPA, General Regulation.

138. Section 6.3(1)7iii of PHIPA, General Regulation.

139. Section 6.3(1)7iv of PHIPA, General Regulation.

140. Section 6.4(1) of PHIPA, General Regulation.

141. Section 6.4(2) of PHIPA, General Regulation.

142. For additional information please see the IPC’s Annual Reporting of Privacy Breach Statistics to the Commissioner.

143. Section 85.6.1 (1) of the HPPC.

144. Section 85.6.2 (1) of the HPPC.

145. Section 85.6.3 (2) of the HPPC; section 85.6.3 (1) of the HPPC requires physicians to also advise the Registrar in writing if they are a member of another professional regulatory body, inside or outside of Ontario.

146. Section 85.6.4 (1) of the HPPC.

147. Section 85.6.1 (2), 85.6.2 (2), 85.6.3 (3), 85.6.4 (2) of the HPPC.

148. Section 85.6.1 (3) of the HPPC.

149. Section 85.6.2 (3) of the HPPC.

150. Section 85.6.3 (4) of the HPPC.

151. Section 85.6.4 (3) of the HPPC.

152. Section 85.6.1 (4), 85.6.2 (4), 85.6.3 (5) and 85.6.4 (4) of the HPPC.

153. Section 85.6.1 (6),  85.6.2 (6), 85.6.3 (7) and 85.6.4 (6) of the HPPC.

154. For details on additional permissible disclosures available under PHIPA physicians are encouraged to review the College’s Confidentiality of Personal Health Information policy.

155. In keeping with provision #3 in this policy, physicians are advised to contact the CMPA or the IPC if they are uncertain whether disclosure is appropriate.

156. Section 40(1) of PHIPA. There are no restrictions on the types of persons to whom the information may be disclosed.

157. The courts have set out circumstances in which concern for public safety may warrant the disclosure of confidential information to reduce or eliminate risk of harm. Smith v. Jones, [1999] S.C.J. No. 15 (S.C.C.).

158. Please see footnote 46 for the definition of incapacity.

159. Please see footnote 45 for the definition of incompetence.