Topic: Preserving Confidences; Physical Therapist's Reporting Obligation with Respect to Unethical, Incompetent, or Illegal Acts
Notice: Two physical therapists sent the Ethics and Judicial Committee an ethics inquiry by letter dated August 8, 2001. Below is the text of the Committee's response of April 12, 2002 (not including the identity of the requesters):
Dear [name deleted]
Thank you for your inquiry of 08/08/2001 concerning a physical therapist's ethical obligations with respect to information obtained in connection with the therapist's review of medical records at the behest of an insurance company or attorney. The records relate to individuals who are not, and never have been, patients of the reviewing physical therapist. In your scenario the physical therapist, in reviewing such records, discovers information that appears to indicate that some other therapist(s) has engaged in activity that is "unethical, incompetent, or illegal."
The Ethics and Judicial Committee (EJC or Committee) of the American Physical Therapy Association (APTA or Association) is responsible for interpreting the Association's ethical principles and standards, in particular those articulated in the Code of Ethics (HOD 06-00-12-23) (Code). The EJC has carried out that responsibility in part by adopting the Guide for Professional Conduct (GPC), a set of brief statements that elaborate somewhat on the various Principles of the Code.
Your inquiry suggested that the scenario raised a conflict between distinct ethical obligations – the reviewing physical therapist's obligation to patients (and to physical therapists undergoing peer review) to preserve confidences, versus the reviewer's obligation to report unethical, incompetent, or illegal activity. The obligations of confidentiality appear in GPC Section 2.3(A) (patient) and Section 2.3(B) (peer reviewed physical therapist), while the obligation to report appears in GPC Section 9.1(C). You asked the EJC to give an opinion as to which of the conflicting ethical imperatives takes precedence.
The EJC believes that the scenario you have set forth does not give rise to any conflict between GPC Section 2.3, on the one hand, and GPC Section 9.1(C), on the other. As explained below, the reviewer in the situation you describe does not appear to owe any duty under Section 2.3(A) or (B) to preserve the confidences of the patients or the treating physical therapists.
As to the former, a physical therapist-patient relationship evidently does not exist between the patients whose records are under review and the reviewing physical therapist. Absent such a relationship, Section 2.3(A) does not impose any obligation on the reviewer. Furthermore, because your inquiry provides no details concerning the manner in which the records in question came into the possession of the insurance company or the attorney, the EJC imagines that in most cases the patients consented to the disclosure of the otherwise confidential information and/or waived any right to insist upon the reviewer's keeping the information confidential.
As to the treating physical therapist, the scenario you have sketched, in very barebones fashion, does not appear to involve peer review within the meaning of GPC Section 2.3(B). Therefore, the EJC does not believe that the reviewing physical therapist would have any obligation thereunder to the physical therapist whose work is under review.
Although your scenario appears not to raise any conflict between a duty to preserve confidences and a duty to report misconduct, it does raise questions concerning the proper interpretation of GPC § 9.1(C) ("A physical therapist shall report any conduct that appears to be unethical, incompetent, or illegal.")
A physical therapist's determination whether § 9.1(C) requires any report should be guided by the purpose of Principle 9 of the Code of Ethics, which is to protect the public. Conduct that does not pose any threat of harm to the public does not trigger any obligation under GPC § 9.1(C), even if it is unlawful. For example, a physical therapist who discovers that a highly competent colleague has inadvertently let his/her license lapse would not be obliged under GPC § 9.1(C) to report the unlawful behavior (i.e., unlicensed practice of physical therapy) to any third party, although he/she obviously should call the matter to the colleague's attention.
In situations in which a physical therapist becomes aware of misconduct that does harm (or threaten harm to) the public, he/she should use mature judgment to decide to whom to report the matter, being guided by the underlying purpose to protect the public. The possibilities are far too numerous for the EJC to identify, for all cases, the person/party to whom a physical therapist should report. In some cases a physical therapist simply might need to call the matter to the attention of the physical therapist (or other person) who appears to be acting in an illegal, incompetent, or unethical manner. In other cases, a physical therapist might have to communicate to some person within his/her organization having authority over the person directly responsible for the problematic behavior. In still other cases, a physical therapist might have an ethical obligation to report to some party or body outside his/her organization (e.g., criminal prosecutors, a defrauded third-party payer, a state agency with regulatory authority over insurance, a state agency that licenses physical therapists). Although in some cases a physical therapist might have an ethical obligation to report unethical, incompetent, or illegal conduct to a physical therapist licensing agency, GPC § 9.1(C) does not require a physical therapist to report every instance of such behavior to the licensing board.
The EJC would point out that the existence of an ethical duty under GPC § 9.1(C) is dependent on the character and strength of the evidence that misconduct has occurred or is occurring. A physical therapist might witness with his/her own eyes and/or ears a colleague's clearly improper conduct, or he/she might be confronted with only a troubling mixture of circumstantial evidence and hearsay. A physical therapist does not have an ethical obligation to report wrongdoing unless he/she has sufficiently reliable evidence of misconduct.
The EJC, of course, is not in the business of dispensing legal advice. However, your inquiry alludes to the fact that in your state (Massachusetts) the licensing authorities, by administrative regulation, have adopted the APTA's Code of Ethics and the Guide for Professional Conduct as the ethical standards of practice a licensed physical therapist must observe. The EJC is responsible for interpreting the APTA's ethical principles and its own Guide for Professional Conduct. As indicated, neither the Code nor the GPC requires a physical therapist, in every case in which he/she becomes aware of unethical, incompetent, or illegal conduct by a licensed physical therapist, to make a report to the physical therapy licensing agency. The decision whether an ethical obligation exists must be guided by the underlying purpose of Principle 9, a practical assessment of how best to combat the threat to the public, and due consideration of the strength/quality of the evidence of misconduct.
Below is a detailed discussion of the questions raised by your inquiry.
APTA Ethics Documents
Your inquiry raises questions concerning a physical therapist's duty to preserve the confidences of a patient. It also raises questions concerning the obligation of confidentiality that attaches to peer review activities.
The APTA's Code does not refer explicitly to an obligation to keep information confidential. However, Principle 2 of the Code provides:
A physical therapist shall act in a trustworthy manner towards patients/clients, and in all other aspects of physical therapy practice.
The EJC, in the GPC, has interpreted Principle 2 to encompass obligations of confidentiality:
2.3 Confidential Information
A. Information relating to the physical therapist/patient relationship is confidential and may not be communicated to a third party not involved in that patient's care without the prior consent of the patient, subject to applicable law.
B. Information derived from peer review shall be held confidential by the reviewer unless the physical therapist who was reviewed consents to the release of the information.
C. A physical therapist may disclose information to appropriate authorities when it is necessary to protect the welfare of an individual or the community or when required by law. Such disclosure shall be in accordance with applicable law.
Section 2.3(B) refers specifically to information derived from peer review. Although the Code does not refer explicitly to peer review, Principle 6 does say, "A physical therapist shall maintain and promote high standards for physical therapy practice, education and research." The EJC has interpreted this principle as follows:
A. A physical therapist shall achieve and maintain professional competence. See Section 5.
B. A physical therapist shall demonstrate his/her commitment to quality improvement by engaging in peer and utilization review and other self-assessment activities.
The GPC does not elaborate on the activity described as "peer review."
With regard to a physical therapist's duty to report misconduct by another physical therapist, the focus of the Code and the GPC is the protection of the public. Principle 9 of the Code provides:
A physical therapist shall protect the public and the profession from unethical, incompetent, and illegal acts.
The EJC's interpretation of this Principle includes the following:
9.1 Consumer Protection
B. A physical therapist shall not engage in any conduct that is unethical, incompetent or illegal.
C. A physical therapist shall report any conduct that appears to be unethical, incompetent, or illegal.
The GPC does not attempt to specify the person or body to whom or which a physical therapist should report misconduct.
The EJC has a Compendium of Interpretations and Opinions, 1980-1995 (Compendium), and it has posted some of its other ethics opinions on the APTA website. Nothing in the Compendium or those other ethics opinions addresses the issues of confidentiality and reporting raised by your inquiry.
I. Confidentiality Owing to Patients
Your inquiry does not provide any details concerning the circumstances under which the physical therapist obtained access to the "medical records" in question, other than to say that an insurance company or an attorney engaged the physical therapist to review them. The Committee assumes that the insurer or the lawyer has possession or control of the documents. The Committee imagines that you have in mind a situation in which an insurer hires a physical therapist to review records of one or more insured patients for purposes of deciding (prospectively or retrospectively) whether a particular course of treatment is (or was) "medically necessary" or otherwise covered under the relevant contract of insurance. The Committee imagines you also have in mind a situation in which a lawyer representing a party (or potential party) in a malpractice lawsuit hires a physical therapist to review records for purposes of forming an expert opinion as to whether the treatment provided to the affected patient(s) met the applicable standard of care (which typically is dependent on what competent physical therapists in the community would have done in a comparable case). Other scenarios are possible. For example, a prosecuting attorney in a criminal case involving alleged sexual abuse of a patient might call upon a physical therapist to review medical records to evaluate the credibility of the defendant's claim that he touched the patient for therapeutic purposes rather than sexual gratification.
Principle 2 of the APTA's Code obligates physical therapists to "act in a trustworthy manner towards patients/clients." As indicated, the EJC's interpretation of this principle is that "[i]nformation relating to the physical therapist/patient relationship is confidential and may not be communicated to a third party not involved in that patient's care without the prior consent of the patient, subject to applicable law." GPC, Section 2.3(A).
The paucity of details in your inquiry prevents the Committee from reaching any firm opinion concerning the application of Section 2.3(A) of the GPC to the scenario you have sketched. However, circumstances you have presented suggest strongly that the prohibition in Section 2.3(A) would not be applicable.
A. Absence of Physical Therapist/Patient Relationship
In the first place, the scenario you have advanced appears to be one in which the reviewing physical therapist does not have a therapist-patient relationship with any of the patients whose medical records are under review. Your inquiry argues that if a physical therapist is not involved in the care of a patient that a physical therapist-patient relationship does not exist, and that Section 2.3(A) of the GPC therefore would not be applicable. The EJC believes that when a physical therapist is hired by an insurance company or a lawyer to review records of a patient whom the reviewing therapist never has treated, the reviewing therapist does not have a physical therapist-patient relationship with that patient. In such a situation, the EJC believes that Section 2.3(A) of the GPC is not applicable.
This conclusion means only that the prohibition in Section 2.3(A) is inapplicable. It does not mean that the reviewing therapist is authorized to disclose information to third parties without the patient's consent, since the reviewing therapist might be subject to other kinds of obligation. For example, if a patient gave his/her records to a personal injury lawyer to determine whether a malpractice lawsuit was advisable, those records presumably would be subject to the attorney-client privilege, and the lawyer presumably would not have released them to the reviewing therapist without first having obtained his/her commitment to keep the records confidential, just as a physical therapy clinic typically requires all its staff members to preserve the confidentiality of patient records. In the absence of more details, the EJC need not state emphatically that a physical therapist who promises a lawyer to preserve the confidentiality of information protected by the attorney-client privilege is bound to honor that commitment. However, the EJC is inclined to believe that a physical therapist should act in a trustworthy manner, in matters related to patients, even when the therapist does not have a physical therapist-patient relationship with the individual in question.
B. Patient Consent/Waiver
A second consideration worthy of note is the likelihood that the patients in your inquiry have explicitly or implicitly consented to disclosure of their confidential information to third parties. In many – but not all – of the situations in which insurance companies or lawyers hire physical therapists to review medical records the patients already have waived any claim that the information should be kept confidential.
Insurance policies typically condition the payment of benefits upon the insured party's having incurred expenses for healthcare services that are medically necessary, however defined by the particular insurance policy. A person who submits a claim for benefits to an insurance company obviously would be hard pressed to insist that the services provided to him/her were covered by the policy while simultaneously refusing to allow the insurer to examine the medical records that would support (or undermine) that claim. (If you are aware of any insurers who pay claims solely on the say-so of the beneficiary, without the possibility of reviewing the patient's medical records, please let the Committee know!) In general, a person who seeks benefits under an insurance policy must consent to allowing the insurer (and its agents) to review the underlying documentation. Therefore, in many of the situations to which your inquiry refers, the patient undoubtedly already has consented to the disclosure of his/her confidential information to third parties.
Governmental benefit programs (e.g., Medicare) likewise condition the payment of benefits upon satisfaction of certain conditions. An individual who wishes to claim healthcare-related benefits under a governmental program surely may not advance a claim while simultaneously refusing to allow the party administering the program to examine the medical records that would support (or undermine) the individual's claim to be entitled to benefits.
The Massachusetts statute you cite in footnote 5 of your inquiry is entirely consistent with the common-sense rule that a person who asks a third party for benefits has no right to refuse to make the relevant records available for inspection. In particular, § 12G of Chapter 112 of Massachusetts General Laws provides that a physician may not be held liable for disclosing, without a patient's consent, information relating to the "diagnosis, treatment, or condition of a patient in connection with the establishment of eligibility for, or entitlement to, benefits" under specified Massachusetts laws, at least where the disclosure is to "any department, bureau or commission of the commonwealth [of Massachusetts] or to any federal agency which, by law, requires such information or which provides health care benefits to eligible recipients who apply therefore." The Massachusetts laws to which the law refers include Chapter 115 (Veterans' Benefits), Chapter 117 (Support by the Commonwealth – repealed, presumably refers to current Chapter 117a (Support by the Commonwealth)), Chapter 118 (Aid to Families With Dependent Children), Chapter 118a (Assistance to the Aged and Disabled), Chapter 118d (Assistance to Persons Who Are Disabled - repealed), and Chapter 118e (Division of Medical Assistance).
C. Limited/Restricted Consent
The most substantial question raised by your inquiry is not whether a patient seeking benefits under an insurance policy or governmental program has waived his/her right to withhold confidential medical records from the parties responsible for making the benefits determination. Such patients obviously have waived the confidentiality of their records, at least to the extent necessary to process their benefit claims. Rather, the question your inquiry raises is whether the patient's consent (whether explicit or implicit) to have his/her confidential information disclosed to the entities processing the benefits claim constitutes an unrestricted consent to disclose the information to third parties.
The EJC believes that the answer to this question may vary with the circumstances of the individual case. Because your inquiry provides no details at all concerning the nature of any explicit or implicit limitation on (or objection to) disclosure by the patients whose records the physical therapist reviews, the EJC ventures no opinion concerning the propriety of the reviewing physical therapist's disclosing confidential information in a context outside the scope of his/her engagement by the insurance company or lawyer.
II. Confidentiality Owing to Peer-Reviewed Physical Therapist
Your inquiry raises the question whether a physical therapist, hired by an insurance company or lawyer, to review medical records has an obligation to the treating physical therapist to refrain from disclosing information concerning the treating therapist's performance. You correctly point out that the GPC states:
B. Information derived from peer review shall be held confidential by the reviewer unless the physical therapist who was reviewed consents to the release of the information.
GPC, Section 2.3(B). The threshold question, therefore, is whether the reviewing physical therapist in your hypothetical is engaged in peer review within the meaning of Section 2.3(B) of the GPC.
The EJC does not believe that the scenarios presented in your inquiry would constitute peer review within the meaning of Section 2.3(B) of the GPC. The peer review that the GPC has in mind involves an exercise designed to help the therapist under review to improve the quality of his/her work. See GPC, Section 6.2(B). As you suggest in your inquiry, such peer review often involves a clinic's or healthcare institution's inviting professionals from outside the organization to review the performance of the organization's personnel. The physical therapists who are the subject of peer review, as that term in used in Section 2.3(B), always have an expectation (usually based on explicit assurances) that the peer reviewers will keep confidential the information to which they are given access. The scenarios in your inquiry seem clearly not to involve peer review of this kind. As far as appears, therefore, a physical therapist hired by an insurance company or lawyer to review medical records would not owe any duty under Section 2.3(B) of the GPC to refrain from disclosing to third parties information about the conduct of the treating physical therapist.
III. Obligation To Report
Because Sections 2.3 (A) and (B) appear to be inapplicable to your scenarios, your inquiry does not seem to raise any conflict between those Sections and the reviewing physical therapist's reporting obligation, if any, under Section 9.1(C). Therefore, the EJC sees no need to determine which of the ethical obligations would take precedence in the event of an actual conflict.
The absence of a prohibition against disclosure to a third party is not the same thing, of course, as an obligation to make disclosure to some third party. Your inquiry does assume that the reviewing physical therapist would have some reporting obligation under Section 9.1(C). Although you do not ask for any opinion concerning the nature of the Section 9.1(C) obligation, the EJC believes that some discussion of that obligation would be of use to physical therapists.
A. Public Protection
The fundamental purpose of the Section 9.1(C) reporting obligation is to protect the public. The text itself makes no explicit reference to this purpose, but the implication is unmistakable, since Section 9.1(C) appears under the heading "Consumer Protection" and it is an interpretation of Principle 9 of the Code, which provides, "A physical therapist shall protect the public and the profession from unethical, incompetent, and illegal acts."
A determination that behavior poses a threat of harm to the public is essential to a physical therapist's having a reporting obligation. Frequently, of course, the harm is self-evident. For example, if a physical therapist witnesses a colleague's sexual abuse of a patient or knows his/her boss is submitting false insurance claims, then he/she clearly has knowledge of misbehavior that involves harm to the public.
On the other hand, some illegal/unethical behavior may pose no significant threat to the public welfare. For example, if a veteran and competent physical therapist inadvertently fails to renew his/her license and treats patients for several weeks thereafter, the unlicensed activity ordinarily would be a violation of state law and/or a basis for adverse action by the licensing authorities. Such unlawful behavior would violate Principle 3 of the Code, which provides, "A physical therapist shall comply with laws and regulations governing physical therapy." The EJC does not believe that a colleague of the delinquent physical therapist who became aware of the unlawful conduct would have any obligation under Section 9.1(C). The circumstances do not seem to involve any threat of harm to the public sufficient to trigger such an ethical obligation.
The purpose of a law against the unlicensed practice of physical therapy undoubtedly is to protect the public against the risk of being injured by an incompetent practitioner. In the hypothetical, the physical therapist already has satisfied the conditions for initial licensure – typically, good moral character, completion of an accredited educational program, and passage of the licensure exam – and he/she presumably is just as competent to treat patients as he/she was the day before the license expired. In such a situation, the EJC does not believe that a physical therapist who becomes aware of the colleague's having a lapsed license has any duty to report to any third party, although he/she obviously should call the lapse to the colleague's attention if he/she is unaware of the expiration of his/her license.
B. Recipient of Report
In situations where unethical, incompetent, or illegal conduct poses a sufficient threat to the public, Section 9.1(C) of the GPC is intentionally vague as to the identity of the person or body to whom a physical therapist should report.
The EJC believes that, where reporting is called for, the physical therapist should use mature judgment in deciding to whom to report. This decision should be guided by the underlying purpose of Section 9.1(C) – to protect the public against harm. The EJC does not believe that any one-size-fits-all approach to the question would be appropriate or feasible. Thus, the GPC certainly does not say that a physical therapist always must report to the relevant licensing agency whenever some action under Section 9.1(C) is in order. Rather, the decision to whom to make a report should be based on all the relevant circumstances and guided by the aim to make the world of physical therapy a better place for those it serves. The decision should be guided also by attention to who is in the best position to rectify the unethical, incompetent, and/or illegal behavior in question.
Although no single approach will be suitable for all contingencies, the EJC believes that a physical therapist should take the following considerations into account.
Given that the aim of Section 9.1(C) is to protect the public, a physical therapist sometimes may carry out his/her ethical obligation simply by calling the improper conduct to the attention of the offending physical therapist. The EJC recognizes that some questions of ethics and clinical practice do not present easy or clear answers. Furthermore, the American legal system often imposes legal liability for conduct that occurs "without fault" or without, at least, specific conscious knowledge that the behavior is unlawful. A physical therapist who discovers that a colleague is guilty of an offense that appears to be inadvertent surely would be acting responsibly by going to the colleague in the first instance. For example, some states require licensees to post their license in their primary place of practice, a law intended to give consumers assurance that the practitioner has met the state's competency requirements. If a therapist failed to post his/her license, in violation of the statute, a colleague who noticed the delinquency surely should call the unlawful behavior to the colleague's attention, giving him/her the opportunity to rectify the situation. The EJC believes that such action would serve the public interest involved (letting the patient population know whether the colleague was licensed). The EJC does not see any need, in the case of such simple and easily-corrected misconduct, for the physical therapist to disclose the misconduct to a wider audience – provided, of course, that the guilty colleague begins to comply with the law. A similar analysis would apply in the case of a physical therapist who inadvertently allows his/her license to expire. A similar analysis might apply in a situation where a physical therapist witnesses another physical therapist coding services for billing purposes in a way that the first therapist believes is incorrect.
False coding of physical therapy services obviously can have very significant financial implications for payers, and the harm to third party payers of systematic upcoding surely is a harm substantial enough to implicate Section 9.1(C). At the same time, coding often presents questions of some complexity, and a physical therapist's initial analysis of the proper solution to a coding problem is not always correct. Therefore, a physical therapist who believes that a colleague is miscoding a procedure ordinarily would be acting responsibly in communicating his/her belief to the colleague. If the colleague agrees, and adopts the first therapist's approach, the first therapist undoubtedly has acted responsibly, and the EJC is not prepared to say that disclosure to a wider audience is necessarily required.
On the other hand, a physical therapist obviously would have an ethical obligation to disclose problematic behavior to parties other than the offending therapist in some circumstances. In the foregoing example, for instance, if the response of the second physical therapist were to agree that his/her coding was improper but to insist on continuing to upcode, the physical therapist would be obliged to take the matter to higher authority. In some organizations, that might mean going to the department head or some other person in a higher position in the clinical and/or business hierarchy. If a physical therapist reported the problematic coding to such higher authorities and they acted to stop the practice, then the physical therapist surely would have acted responsibly and in accordance with Section 9.1(C) in prompting the physical therapy practice to amend its ways. In such a case the EJC is not sure that reporting to a wider audience would be necessary.
In many cases a physical therapist's reporting misconduct solely to persons within his/her organization would not be sufficient compliance with Section 9.1(C). In the foregoing example, if a physical therapist reported miscoding to the highest authority in his/her organization and the organization either (i) agreed that its practices were fraudulent but continued to follow them or (ii) advanced a clearly untenable/frivolous defense of the legitimacy of its practices, then the physical therapist undoubtedly would have an obligation under Section 9.1(C) to report the misconduct to parties outside the organization. For example, such a physical therapist might make disclosure of the dishonest coding to the affected third party payers, or even to appropriate state or federal investigators/prosecutors. The physical therapist might consider reporting the misconduct to relevant licensing authorities (if the wrongdoers were licensed professionals) and/or to the state's insurance authorities (if those authorities happened to have any jurisdiction over the matter).
In some situations, the appropriate party to whom to report misconduct undoubtedly would be the physical therapist licensing agency. The EJC imagines that the licensing agency most likely would be the appropriate party to whom to report misconduct if the behavior in question involved violations of provisions of the physical therapy practice act or implementing regulations. For example, the licensing board would be the obvious place to report a physical therapist who persists in violating state law relating to the tasks that may be assigned to physical therapist assistants, the nature of the required supervision of supportive personnel, or the prohibition against treating a patient without a physician's referral.
In an opinion such as this the EJC cannot begin to rehearse all the possible scenarios or to provide any bright-line guidance as to the exact party to whom a physical therapist should report. When Section 9.1(C) calls for reporting misconduct, the physical therapist needs to exercise sound practical judgment concerning where to report, keeping in mind the aim of Principle 9 and Section 9.1(C) to protect the public.
C. Strength/Credibility of the Evidence of Misconduct
The foregoing discussion assumes that the physical therapist has direct knowledge of the problematic behavior of another therapist. In many cases, of course, physical therapists obtain information second-, third-, or fourth-hand, from sources more or less credible, about the misconduct of another therapist. The EJC recognizes that the strength of the evidence of wrongdoing available to a physical therapist may vary enormously from case to case, ranging from situations in which the physical therapist is an eyewitness to blatant misconduct to those in which he/she has only snippets of circumstantial evidence or hearsay from a source of unknown (or questionable) credibility. The EJC believes that the existence of a duty under Section 9.1(C) to report misconduct to third parties should depend on the physical therapist's having sufficiently reliable evidence of the misconduct.
The EJC certainly did not adopt Section 9.1(C) with the intent of requiring all physical therapists willy-nilly to "report" any rumors of misbehavior that come to their ears. Section 9.1(C) of the GPC refers to reporting any conduct that "appears" to be improper, language that conceivably could support the view that the Section applies whenever a physical therapist becomes aware of any evidence of misbehavior, without regard to the strength/credibility of the evidence. Although such an interpretation is a logical possibility, it is a misreading of Section 9.1(C). Such a rule would have perverse consequences, in that it would be unfair to physical therapists victimized by false rumors (whether circulated unwittingly or maliciously) and it would tend to expose the "reporting" physical therapists quite unnecessarily to various forms of legal liability to the subject of the false report (e.g., libel, slander, malicious prosecution, and intentional infliction of emotional harm).
Section 9.1(C) does not establish any standard relating to the degree of certainty a physical therapist must have about the truth/accuracy of his/her belief that another therapist is guilty of unethical, incompetent, or illegal behavior before he/she has an ethical duty to report the matter to a third person. Section 9.1(C) certainly does not establish any hair-trigger standard.
Considerations of fairness counsel against interpreting Section 9.1(C) as imposing an obligation on every physical therapist who comes across any evidence of misbehavior, without regard to its strength and credibility. People often refrain from spreading hearsay accusations out of a sense of fairness to the accused (even when the hearsay seems credible) or out of a legitimately self-interested desire to avoid liability for defamation (especially when the hearsay seems incredible or its truth is impossible to gauge). The American Physical Therapy Association has no ability to grant physical therapists legal immunity for the consequences of reporting what they believe to be the unethical, incompetent, or illegal behavior of another therapist, and the EJC believes that a physical therapist does not have an ethical duty to report misconduct to third parties in the absence of direct knowledge (or sufficiently strong indirect evidence) of the wrongdoing. Therefore, considerations of fairness to physical therapists who may obtain only indirect knowledge or equivocal evidence of misconduct counsel against imposing any rigid reporting obligation.
IV. Obligation To Obey State Law
Your inquiry indicates that in the state where the physical therapist is reviewing the records state law has "codified" the Code and the GPC. The EJC understands that you are referring to § 23K(f) of Chapter 112 of the Massachusetts General Laws, the online version of which provides that the Board of Allied Health Professions may discipline a licensed physical therapist upon proof that he/she "acted in manner which is professionally unethical according to ethical standards of the [profession] of … physical therapy." The EJC notes that the Board has adopted a regulation stating that the Code and the GPC "in their most recently updated formats, are adopted as the ethical standards of practice for persons holding a license to practice physical therapy." 259 CMR 5.05(1).
The role of the EJC, of course, is not to interpret state law or to provide legal guidance to physical therapists. However, the role of the EJC under the APTA's Bylaws is to interpret the ethical principles of the Association. As indicated above, the EJC does not interpret the Code or the GPC to require a physical therapist, in every case in which he/she becomes aware of unethical, incompetent, or illegal conduct, to make a report to the physical therapy licensing agency. The determination whether – and where, when, and how – to report depends on the circumstances of the case. As explained above, these decisions should be guided by the underlying purpose of Principle 9 and GPC Section 9.1(C) to protect the public and by a practical assessment of how best to influence events toward that goal. The Code and Principle 9.1(C) do not obligate a physical therapist to pass along to licensing agencies (or other third parties) every bit of hearsay evidence that indicates or suggests a physical therapist is guilty of unethical, incompetent, or illegal behavior.
The Committee thanks you for your very thoughtful inquiry and for calling its attention to questions of importance for all physical therapists.
Deborah H. Shefrin, PT, JD
Ethics and Judicial Committee