By Esther Shainblum and Martin U. Wissmath

The College of Physicians and Surgeons of Ontario (“CPSO”) is reviewing its social media guidelines and has developed and posted a draft social media policy containing obligatory rather than advisory language, which would hold physicians to a professional standard when engaging on social media. The CPSO solicited feedback from the public in a general consultation that ended August 27, 2021. Although not yet officially published, the draft social media policy, available on the CPSO general consultation webpage (the “Draft Policy”), includes stronger wording than the current Social Media — Appropriate Use by Physicians statement (the “Current Statement”) on the CPSO website.

The Draft Policy requirements sets out professional expectations for physicians using social media and, along with the CPSO’s other policies and relevant legislation and case law, would guide Ontario physicians as to what is acceptable physician practice or conduct. The policy is framed as reflecting compulsory expectations rather than being advisory in nature. When compared with the Current Statement the word “must” appears 22 times in the Draft Policy but is found only once in the Current Statement.

The Draft Policy defines “social media” comprehensively as including popular platforms, such as Twitter, Facebook, YouTube, Instagram, LinkedIn, as well as blogging sites and other websites. Appropriate social media use requirements are listed in four main areas: Professionalism, Professional Relationships and Boundaries, Privacy and Confidentiality, and Conflicts of Interest. There are 17 listed requirements altogether, including the requirement to comply with the policy.

Under Professionalism, physicians must, among other obligations, conduct themselves in a respectful and professional manner while using social media and must consider the potential impact of their conduct on their own reputation, the reputation of the profession, and the public trust, must not engage in disruptive behaviour (including profane, bullying, insulting or harassing conduct) and must disseminate information that is verifiable and supported by evidence and not misleading or deceptive.

Under Privacy and Confidentiality, the obligations in the Draft Policy would include requiring physicians to comply with the Personal Health Information Protection Act, 2004; obtaining documented express and valid consent from the patient or substitute decision maker or de-identifying any patient information when posting content on social media; fulfilling the requirement to obtain express and valid consent by informing patients about the risks of publishing content about them on social media, informing patients of details about the purposes for which and where content would be published, and that their consent may be withdrawn; and refraining from searching for patient health information online without consent.

Under Professional Relationships and Boundaries physicians must also consider the impact of using social media on the “power imbalance inherent in the physician-patient relationship”. As explained in the accompanying document entitled Advice to the Profession: Social Media, patients may feel pressured or coerced into accepting a social media invitation from their physician due to the inherent power imbalance in the physician-patient relationship. Further, maintaining appropriate boundaries may mean not connecting with patients on social media.

Under Conflicts of Interest, physicians are required to recognize and appropriately manage areas where their personal or professional interests are in conflict with their professional obligations.

The Advice to the Profession: Social Media document helps to further explain and clarify the content of the Draft Policy and provides physicians with some additional information and best practices.

COVID-19 has accelerated a shift to increased online usage, which could expose organizations to greater risks arising from inappropriate online conduct by their employees and volunteers. While the Draft Policy is aimed specifically at Ontario physicians, it serves as a good example for charities and not for profits, which should consider adopting guidelines for social media and privacy that set out their expectations for their employees and volunteers in greater detail. Such expectations should include requirements to maintain privacy and protect personal information, manage conflicts of interest, be respectful and truthful online and protect the reputation of the charity or not for profit.

Read the October 2021 Charity & NFP Law Update