Feedback from a recently published disciplinary tribunal prompted me to clarify certain aspects about the process.
To gain a detailed understanding I encourage readers to review Part 4 of the Health Professions Act (available on the Alberta Queen’s Printer website) and information about the complaints and discipline process at cpsa.ca. As we publish notifications of upcoming hearings, I also suggest that interested parties plan to attend a future hearing; hearings are open to the public (but may be closed, in all or in part, in certain circumstances – S. 78 of the HPA).
The tribunals that hear a case (hearing tribunals) are made up of three individuals, two physicians independent of the College and the Council, and one public member from a list maintained by the Alberta Government.
A hearing is a quasi-judicial process, meaning it is much like a court of law. The College acts as the prosecutor (we lay the charges); the physician(s) named in the charges is the defendant; and the hearing tribunal is the panel of judges.
As in a court of law, the defendant physician has a number of rights, including the right to defend himself/herself against the charge(s); the right to legal counsel; the right to see the evidence against him/her; the right to examine witnesses and the right to cross-examine witnesses brought by the prosecution.
Should the physician/defendant be found guilty by the hearing tribunal of the charge(s), the physician has the right to present argument with respect to penalty, and the physician has the right to appeal both the finding of guilt and the penalty imposed. Under this Act, the first level of appeal is to the Council of the College (and the full Council hears appeals arising from disciplinary cases) and then to the Court of Appeal.
Often the College and the counsel for the physician/defendant will agree on the materials to be presented to the Hearing Tribunal (an agreed statement of facts); such agreements reduce the length of time required for a hearing. As noted above, the physician/defendant has the right to present a defense and the exercise of that right cannot be a consideration with respect either to the finding of guilt (or not) or penalty.
In its decision, the Hearing Tribunal lays out its findings and the reasons for its findings (“we find the physician not guilty of charge XX because…”); similarly, the Tribunal makes clear its reasons regarding penalty, having heard argument from both the College and counsel for the physician, most often including precedent cases in Alberta and elsewhere, and case law specific to the question of penalty.
Some have questioned the cost of the recent hearing – almost $130,000. Costs are calculated by the College beginning with the Notice to Practitioner – when charges are laid against the physician. The longer the hearing, the greater the potential cost. In the recent case, the Hearing Tribunal met for a total of 8 days, three days of which with respect to penalty.
Costs would have been higher had the physician in the recent case exercised his right to appeal to Council; there was no appeal.
I have outlined certain aspects of the discipline process. It is expensive and it is high stakes. Those are two reasons why many potential disciplinary matters are resolved through negotiation between the parties.
I also want to emphasize that the College receives about 750 complaints per year, on average. Some years we have zero discipline hearings; some years we will have as many as 10. Some matters, such as serious boundary violations, are guaranteed to be sent to a Hearing Tribunal; most issues, even serious clinical care problems that resulted in patient harm, can be addressed through negotiation and agreement.
The CPSA complaint and discipline process is not a ‘black box’ as some members have suggested. My intention in writing this piece was to offer some insight into the process. I invite those with questions to review the Health Professions Act and the information on our website, and to ask questions to us directly if the answers are not apparent. Dr. Michael Caffaro, our Complaints Director, is an excellent source of information about the process.