Ontario physicians and other health professionals now have a large but ambiguous responsibility to report not only children who "suffer abuse" but also cases in which a child is "in need of protection." New child protection legislation, which was approved in May 1999, aims to prevent children from falling through the cracks of the child protection system, says Toronto lawyer Tracey Tremayne-Lloyd, an expert in health law at Tremayne Lloyd Partners. A child "in need of protection" is one whose best interests, protection and well-being are not being sustained.
The legislation will undoubtedly lead to more reporting and awareness - a good thing, says Tremayne-Lloyd - but it also puts physicians in a vulnerable legal position. They are now legally liable for failing to report cases, and penalties include fines of up to $1000 and imprisonment for up to a year. The new legislation also allows children to sue physicians for failing to protect them. And since the limitation period for starting legal action does not begin until the child has turned 18, the physician's potential liability and exposure extends for years.
It puts physicians in an awkward situation, says Tremayne-Lloyd. "If physicians act precipitously, it can create conflict with the family and destroy the patient-physician relationship. But, if they don't act, they could be fined and then sued for damages."
There have been no charges under the legislation, but Tremayne-Lloyd says it's only a matter of time. She also believes that other provinces will adopt similar legislation. She says physicians should err on the side of caution, arguing that it is better to make 2 or 3 mistakes than to let a case slip by.
Tremayne-Lloyd acknowledges there will likely be some frivolous claims "but there are a lot of children out there suffering in situations where people in authority do nothing."