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Vague Child Protection Law Puts Onus on Physician to Report

Originally published May 2000. Canadian Medical Association Journal.

To read the original article, click here.

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.”



Testimonials

Working with Tracey as closely as I have for the last 27 years, I am in a position to comment on her speaking expertise and why she would add considerable value to any lecture, presentation or seminar. I have not only heard her present, but I have also presented with her as co-presenter. Tracey is one of those rare individuals that can create buzz and excitement as soon as she walks in the room and starts to speak. In my opinion, that’s exactly what you want at a presentation: “buzz”. You want people excited and that’s what Tracey delivers. Her presentation style is dynamic and alive and is NOT just someone reading PowerPoint slides. Once any presentation is complete, a leading indicator of the presentation’s success is the number of questions and participation from the audience. In Tracey’s presentations, the audience is so engaged that the question and discussion period will likely need to be cut off.

Stephen R. Binder, B.A. , C.A. Partner, Grant Thornton LLP Personal and business accountant and advisor since 1985

Tracey Tremayne-Lloyd Health Law