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Dentist's case highlights reality that CAS report may trigger complaint

Media coverage of a mother who complained after her child’s dentist reported her to a Children’s Aid Society (CAS) for possible “oral neglect” highlights a potential risk of complying with a health professional’s mandatory duties in cases where they learn there is a child in need of protection, Toronto health lawyer Lonny Rosen tells AdvocateDaily.com.

"They may have to respond to a College complaint for making the mandatory report," he says. 

“Health professionals are required under the Child, Youth and Family Services Act to make a report to a CAS where they have reasonable grounds to suspect that a child has suffered harm or abuse, or requires medical treatment to which the parent does not consent.

“This is a duty that cannot be delegated to a staff member."

Rosen, a partner with Rosen Sunshine LLP, says that when making such a report, professionals should prepare for a possible complaint by ensuring that the report is justified and that the basis for the report is well-documented. 

“Seeking counsel before doing so is always prudent, first to receive advice as to whether the reporting obligation is triggered, and second because many professionals have received complaints relating to such a report,” he says. 

In this particular case, the dentist notified the CAS after determining the 10-year-old girl needed thousands of dollars in dental repairs for nine cavities, reports the CBC.

The child's mother sought a second opinion and had the dental work done at another clinic but didn't notify the clinic that had recommended the repairs. Later, the mother received a call from the CAS after the child-protection agency opened a file on her, says the article.

The Royal College of Dental Surgeons of Ontario (RCDSO) told the broadcaster that the first dentist was just doing his job when he made the report, says the CBC.

The definition of a child in need of protection is outlined in the new Child, Youth and Family Services Act, notes Rosen.

Set out in s. 74 of the Act, the legislation says there is a need of protection in instances where “the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment.”

Rosen says when a parent does not consent to recommended treatment, “the health professional may be forced to conclude that the child is suffering and they meet the definition of one who is in need of protection because they’re not getting that necessary medical treatment."

He emphasizes that reporting in these circumstances is not optional, and if they don’t notify the CAS, they can be found liable under the legislation for failing to report.

It's also important to point out, Rosen adds, that if the health professional does make a report, there will likely be an investigation, the family will likely learn of it and may conclude that it was the health professional who notified the CAS.

“As a result, the health professional may face a complaint with their regulatory body for making the report,” he says. “But this should not deter them from reporting since doing so is a legal and professional obligation.”

The only circumstance in which professionals should be concerned about the possibility of a College complaint arising from a report to CAS is if there is some other interest or circumstance that could be alleged to have motivated them to make a report, Rosen says.

"This could be a dispute over fees, a breakdown in the health professional-patient relationship, or a threatened complaint or lawsuit by the child’s parent,” he says. 

“Where the professional makes a report on the heels of one of these events, particularly where the information on which the report is based is not new, they could be accused of making a report in bad faith or for ulterior motives, which could result in action by the [College] reviewing committee.

"However, reporting to CAS where there is a duty to do so is not optional, and failing to do so can result in a fine as well as disciplinary consequences."

If the basis for the complaint is clearly documented, the professional will be well-placed to respond to such a complaint, Rosen says.

"The possibility of a complaint should not deter a professional from complying with the law," he says. 

“Health professionals should also document clearly and completely the basis for their conclusion that the child is at risk and is in need of protection. They should be prepared for a complaint from the family because they made the report they were required to make.”

Rosen also notes that the Personal Health Information Protection Act, 2004, prohibits professionals from disclosing patients’ personal health information. 

“But one of the exceptions is where it’s necessary to make a report under the Child, Youth and Family Services Act,” he says. 

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