Approved by Council: June 2021

Companion Resource: Advice to the Profession

Definitions

Third party: Any person or organization other than the physician and subject (e.g., insurer, government, employer, educational institution, lawyer, etc.).

Third party processes: Processes that relate to insurance benefits, government benefits and programs, employment, educational programs, legal proceedings, etc.  

Independent medical examinations (IME): Examinations that are conducted on individuals¹ strictly for the purpose of a third party process and not for the provision of health care. IMEs can include a file review (e.g., reviewing medical records, reports, etc.) and/or examination (e.g., physical, psychological, functional, etc.) of the individual.

Third party medical reports and testimony: Information and/or opinions that are provided by treating and non-treating physicians in writing (e.g., note, form, letter or report) and/or orally for a third party or third party process.

Subjects: Patients or individuals who are the subject of an IME, third party medical report, and/or testimony.²

Medical experts: Physicians who, by virtue of their medical education, training, skill and/or experience, have specialized knowledge and expertise on medical issues. They are retained by or on behalf of a party to provide opinion evidence in relation to a legal proceeding. Expert opinions are communicated by physicians in third party medical reports and/or testimony.

Policy

1. Physicians must comply with the expectations set out in this policy and any other specific legal principles and requirements that may apply to the IME, third party medical report, and/or testimony.³

Physicians’ Obligations

2. Treating physicians must provide:
   1. Third party medical reports about their current and former patients when requested, unless they no longer have an active certificate of registration⁴; and
   2. Testimony about their current and former patients when ordered (e.g., by subpoena or summons).
3. Before accepting a request to conduct an IME or act as a medical expert, physicians must disclose to the requesting party (i.e., the third party that requested the IME, third party medical report, and/or testimony) any perceived or potential conflicts of interest^5,6 and the physician must, in consultation with the requesting party, determine no conflict exists.⁷
4. Physicians must discharge provisions 2-3 in accordance with the ‘Privacy and Consent’ section of the policy.
5. Physicians are not obligated to conduct IMEs and must only accept a request to do so if:
   1. they currently have an active certificate of registration;
   2. the matter falls within their scope of practice and area of expertise; and
   3. they have the requisite knowledge, skill, and judgment to conduct the IME.
6. Physicians are not obligated to act as medical experts and must only accept a request to do so if:
   1. the matter falls within their scope of practice and area of expertise; and
   2. they have the requisite knowledge, skill, and judgement to provide the expert opinion.
7. When accepting a request to conduct an IME and/or provide a third party medical report and testimony, physicians must:
   1. know who the requesting party is;
   2. understand what they are being asked to do, including the scope of their role and responsibilities and the specific questions they are being asked to answer; and
   3. only enter into contracts with the requesting party (e.g., outlining scope, purpose, timelines, fee arrangements, etc.,) that comply with the expectations set out in this policy.

Physicians’ Role

8. Physicians must understand and communicate the nature of their role to subjects⁸ they interact directly with, which includes that their role:
   1. is to provide information and/or opinions for the third party or third party process and not to decide how the information and/or opinions will be used by the third party or the relevant decision-makers in the third party process;
   2. may involve collecting, using, and disclosing personal information and/or personal health information to a third party; and
   3. if applicable, may involve conducting an IME for the purpose of a third party process and not for the provision of health care.

Privacy and Consent

9. Unless permitted or required by law to proceed without consent and it would be unreasonable in the circumstances to obtain consent,⁹ physicians must ensure express consent¹⁰ has been obtained from the subject to:
   1. Collect, use, or disclose the subject’s personal information to a third party,¹¹ and
   2. Conduct an IME.
10. While the consent process will vary depending on the circumstances, at minimum, physicians must ensure the following points are conveyed as part of obtaining consent:
    1. the purpose, scope, and rationale of the IME, if applicable;
    2. that consent can be withdrawn at any time; however, this may prevent the physician from completing the IME and/or third party medical report and providing testimony;
    3. that limits may be placed on the information that physicians can disclose in writing and/or orally; however, such limitations may prevent the physician from providing the third party report and/or testimony; and
    4. if consent is withdrawn or limited by the subject, physicians may still be permitted or required by law to collect, use, or disclose the subject’s personal information and/or personal health information.¹²

Fees

11. Physicians must discuss any requirements or arrangements with respect to fees (including cancellation fees for missed appointments) with the requesting party before conducting the IME and providing the third party report and testimony.
12. Physicians must comply with any specific legal requirements in relation to fees for IMEs, third party medical reports, and testimony.
13. In the absence of any specific legal requirements, physicians must ensure their fees are reasonable in accordance with the College’s Uninsured Services: Billing and Block Fees policy and regulation.¹³

Requirements for Independent Medical Examinations, Third Party Medical Reports, and Testimony

14. Physicians must conduct IMEs and provide third party medical reports and testimony that are:
    1. within their scope of practice and area of expertise;
    2. comprehensive and relevant;
    3. fair, objective, and non-partisan;
    4. transparent, accurate¹⁴, and clear; and
    5. timely.

Additional information relating to each requirement is set out below.

Within Scope of Practice & Area of Expertise

15. Physicians must:
    1. accurately represent their scope of practice and area of expertise, including their qualifications, in accordance with relevant College policy and regulation;¹⁵ and
    2. restrict their IMEs, statements, and/or opinions to matters that are within their scope of practice and area of expertise.

Comprehensive & Relevant

16. Physicians must take reasonable steps to obtain¹⁶ and review all relevant clinical information and opinions relating to the subject that could impact their statements and/or opinions.
17. Physicians must clearly identify any limitations on the comprehensiveness of the IMEs they conduct and the third party medical reports and testimony they provide, including:
    1. if they are unable to fulfil an element of the third party’s request because the information and/or opinion requested is beyond their scope of practice and area of expertise;
    2. if after taking reasonable steps they are unable to obtain all relevant clinical information and opinions relating to the subject that could impact their statements and/or opinions;
    3. if consent has been withdrawn;
    4. if limits have been placed by the subject on the information that can be disclosed to the third party; and
    5. the impact that a-d have had on the statements and/or opinions they provide.
18. Physicians must not deliberately leave out relevant information and/or opinions in any third party medical reports and testimony they provide unless that limitation has been identified in accordance with provision 17.
19. Physicians must not make any unrelated or unnecessary comments during IMEs and must only provide information and/or opinions in third party medical reports and testimony that are relevant to request.

Fair, Objective & Non-Partisan

20. Physicians must:
    1. provide statements and/or opinions that are reasonable and substantiated by fact, scientific knowledge and evidence, and sound clinical judgment; and
    2. ensure the statements and/or opinions they provide are not influenced by prejudice or bias, the party who requests or pays for their services, or the potential outcome of the third party process.

Transparent, Accurate & Clear

21. For any third party medical reports and testimony provided, physicians must:
    1. Clearly state what they have been asked to do and by whom.
    2. Describe the basis or rationale for their statements and/or opinions, including:
       1. the facts or factual assumptions their statements and/or opinions are based on;
       2. what clinical information and opinions they obtained and reviewed and who the source was; and
       3. any research or literature they relied upon.¹⁷
    3. Indicate the extent to which there is professional consensus regarding the statements and/or opinions expressed (e.g., if there is a range of opinions on an issue, and if their statements and/or opinions are contrary to the accepted views of the profession).
    4. Communicate any of the following to the third party: errors they subsequently become aware of, new information they become aware of that impacts their statements and/or opinions, and changes to their statements and/or opinions.
22. If physicians receive assistance with an IME and/or third party medical report, they must:
    1. clearly identify in the third party medical report and testimony who assisted them and specify the nature of the assistance; and
    2. ensure any statements and/or opinions expressed are their own.¹⁸
23. Where possible, physicians must use language and terminology that will be readily understood by the audience.
    1. When physicians use abbreviations and medical or technical terminology, they must explain the meaning.

Timely

IMEs and Third Party Medical Reports (Outside of Legal Proceedings)

24. Absent a specific legal requirement, physicians must conduct IMEs and/or provide third party medical reports in a timely manner,¹⁹ but no later than:
    1. 60 days after receiving the request to conduct an IME and report on the findings; and
    2. 45 days after receiving the request to provide a third party medical report.
25. If physicians are not able to meet the timeframes set out in provision 24, physicians must discuss the matter with the requesting party and reach an agreement for a reasonable extension.²⁰
    1. Physicians must ensure the subject is informed of the new timeframe.

Expert Opinions in Legal Proceedings

26. Physicians who are acting as medical experts in the context of a legal proceeding must:
    1. reach an agreement with the requesting party regarding the timeframe for providing third party medical reports and any subsequent extensions; and
    2. provide third party medical reports within the agreed upon timeframe.

Testimony

27. Physicians must respond to any requests or orders (e.g., subpoenas or summons) to provide testimony in a timely manner.

Independent Medical Examinations

Observers & Audio/Video Recordings

28. Physicians must comply with any legal requirements regarding the presence of observers²¹ and recordings that apply to the examination being conducted.
29. In the absence of any legal requirements, physicians must:
    1. give subjects the option of having an observer present during an intimate examination²², including bringing their own observer if the physician does not have one;²³
    2. permit subjects to have an observer present during an examination, unless physicians are of the view that the observer’s presence will likely impact the examination;
    3. inform any observer who is present during the examination that they cannot interfere or intervene in any way during examination;
    4. ensure any arrangements with respect to recordings are mutually agreeable to all the parties involved; and
    5. ensure consent with respect to observers or recordings has been obtained from all the parties involved.

Clinically Significant Findings

30. If physicians are conducting an IME and become aware of a clinically significant finding²⁴ that may not have been previously identified, they must determine if the subject is at imminent risk of serious harm and requires emergent or urgent medical intervention.
31. If the subject is at imminent risk of serious harm and requires emergent or urgent medical intervention, physicians must ensure the clinically significant finding is appropriately disclosed and managed by:
    1. disclosing the finding to the subject; and
    2. communicating 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
    3. 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,
       1. providing any necessary care that is within the physician’s scope of practice²⁵ and connecting them to another health-care provider for any follow-up; or
       2. directing the subject to the emergency department or to another health-care provider that is available to provide any necessary care and follow-up.
32. If the subject is not at imminent risk of serious harm and does not require emergent or urgent medical intervention, physicians must take the steps outlined in a or b, depending on the context in which the IME is being conducted and/or who hired the physician.
    1. If the IME is not being conducted in the context of a legal proceeding or the subject hired the physician to conduct the IME in the context of a legal proceeding, physicians must:
       1. disclose the finding to the subject and advise them to see a health-care provider for any necessary care and follow-up; or
       2. 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.
    2. If a third party (not the subject) hired the physician to conduct the IME in the context of a legal proceeding,²⁶ physicians must:
       1. seek independent legal advice regarding the disclosure of the finding; and
       2. consult with the third party to determine whether the third party waives any impediment to disclosure.
33. If the clinically significant finding is disclosed, physicians must only provide clinical information that is directly relevant to the finding.

Documentation, Retention, and Access

34. Physicians must document the following for all professional encounters or services provided for a third party or third party process, where applicable:
    1. identification of the subject and their contact information;
    2. identification of the requesting party;
    3. date of professional encounter or service;
    4. consent that has been obtained for the collection, use, or disclosure of information;
    5. consent that has been obtained for examinations;
    6. information regarding the IMEs that have been conducted;
    7. consent that has been obtained with respect to the presence of observers and/or recordings of examinations; and
    8. any clinically significant findings and any action taken with respect to the findings.
35. Physicians’ documentation of the information in provision 34 must be:
    1. legible;
    2. accurate;
    3. complete and comprehensive;
    4. identifiable, containing a signature or audit trail that identifies the author;
    5. written in either English or French; and
    6. organized in a chronological or systematic manner.
36. In addition to documenting the information in provision 34, physicians must retain any related materials including, where applicable:
    1. contracts with the requesting party (e.g., outlining scope, purpose, timelines, fee arrangements, etc.);
    2. clinical information or opinions not created by the physician, which the physician relied upon;
    3. audio or video recordings of examinations; and
    4. third party medical reports.
37. Physicians must retain and provide access to the information and related materials in provisions 34 and 36 in accordance with the legal requirements that apply to the specific circumstances.²⁷

Endnotes

^1. The College will consider individuals who are the subject of an IME, third party medical report, or testimony to be patients for the purposes of the sexual abuse provisions set out in the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c.18.

^2. Throughout this policy, where “subject” is referred to, it should be interpreted as “subject or substitute decision-maker” where applicable.

^3. For example, this can include, but is not limited to: the principles of solicitor-client and litigation privilege; requirements found in the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched A. (hereinafter PHIPA), and the Personal Information Protection and Electronic Documents Act, S.C. 2000, c 5 (hereinafter PIPEDA); requirements found in the Courts of Justice Act, R.S.O. 1990, c. C.43, the Insurance Act, R.S.O. 1990, c. I.8, the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A., and the Occupational Health and Safety Act, R.S.O. 1990, c.O.1; and the relevant regulations enacted under these Acts. Physicians may want to seek independent legal advice regarding the specific legal principles and requirements that apply to their circumstances.

^4. In accordance with provision 18 in the College’s Closing a Medical Practice policy.

^5. An example of where a conflict of interest may arise is when physicians have a personal or professional relationship with one of the parties (or their representatives) involved in the third party process.

^6. Even the fact that the physician has or had a treating relationship with a patient is considered personal health information and therefore any disclosure must be made in accordance with the ‘Privacy and Consent’ section of the policy.

^7. It may be possible to proceed notwithstanding a conflict if the following conditions are met:

• the conflict has been disclosed to all parties;
• all parties expressly waive the conflict; and
• the physician has determined the conflict would not affect their objectivity or impartiality.

^8. Patients may be confused about the nature of the physician’s role when it is their own treating physician that is involved in the third party process.

^9. Where PIPEDA or PHIPA apply, there are some exceptions to the general requirement that a subject’s consent be obtained to collect, use, or disclose their information (see Division 1, Section 7 of PIPEDA and Part IV of PHIPA). In other circumstances, neither PIPEDA nor PHIPA may apply. Physicians are responsible for determining whether the subject’s consent is required by law in the circumstances, and whether it would be unreasonable to proceed without the subject’s express consent, even if not required by law.

^10. Express consent is direct, explicit, and unequivocal, and can be given in writing or orally.

^11. A subpoena or summons does not grant physicians the authority to speak to anyone about the patient or disclose their medical records without the patient’s (or their substitute decision-maker’s) consent, unless permitted or required by law (e.g., court order). For more information, see: Canadian Medical Protective Association. (2009). Subpoenas-What are a physician’s responsibilities.

^12. See footnote 9.

^13. Section 1(1), paragraphs 21 and 22 of Professional Misconduct, O. Reg., 856/93, enacted under the Medicine Act, 1991, S.O. 1991, c. 30 (hereinafter Medicine Act, Professional Misconduct Regulation).

^14. Section 1(1), paragraph 18 of the Medicine Act, Professional Misconduct Regulation.

^15. College’s registration policy on Specialist Recognition Criteria in Ontario (also see the Cosmetic Surgery FAQ and Advertising FAQ); and section 9(1) of General, O. Reg 114/94, enacted under the Medicine Act, 1991, S.O. 1991, c. 30.

^16. Indirectly via medical records or reports and/or directly via examination of the subject.

^17. If acting as a medical expert, see Rule 53.03(2.1) of the Rules of Civil Procedure, O. Reg. 194, enacted under the Courts of Justice Act, R.S.O. 1990, c. C.43 (hereinafter Courts of Justice Act, Rules of Civil Procedure) for specific information required in an expert report.

^18. Case law suggests that it is inappropriate for physicians to get assistance with the preparation of third party medical reports in circumstances where physicians have not disclosed the fact that they had assistance,  have not reviewed the work that has been done on their behalf, or cannot confirm that the statements or opinions expressed are truly their own. Where an expert is court-appointed, some courts have prohibited assistance altogether.

^19. What is considered timely will depend on the nature of the request, taking into consideration the complexity and urgency of the request. For example, third party medical reports that relate to income or the necessities of life would need to be completed urgently.

^20. Section 1(1), paragraph 17 of the Medicine Act, Professional Misconduct Regulation.

^21. For example, for court-ordered examinations, Rule 33.05 of the Courts of Justice Act, Rules of Civil Procedure states that no person other than the person being examined, the examining health practitioner and such assistants as the practitioner requires for the purpose of the examination shall be present during examinations, unless the court orders otherwise.

^22. Intimate examinations include: breast, pelvic, genital, perineal, perianal and rectal examinations.

^23. This requirement is consistent with the College’s Boundary Violations policy.

^24. An unexpected clinically significant finding, 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.

^25. Providing emergent or urgent care may create a physician-patient relationship with the legal and professional responsibilities that flow from that relationship. A physician-patient relationship may compromise the physician’s independence and therefore may disqualify them from providing the third party medical report and/or testimony.

^26. If a third party (not the subject) hired the physician to conduct an IME in the context of a legal proceeding, legal privilege may apply and may be an impediment to disclosure when the subject is not at imminent risk of serious harm and does not require urgent medical intervention. The purpose of seeking independent legal advice is to determine whether any such impediment to disclosure exists in the circumstances.

^27. For example, retention requirements would depend on whether or not the information or related materials are retained as part of a patient’s medical record, and access requirements would depend on what the purpose of the examination/report was (e.g., if the report was for a commercial purpose and is subject to PIPEDA).