Trevor’s Take: On The College’s Disciplinary Process

Dina Baras CPSA, Messenger, Trevor's Take On 4 Comments

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.

Trevor Theman

4 Comments on Trevor’s Take: On The College’s Disciplinary Process

Jennifer Thibodeau said : Subscribe Mar 25, 2017 at 11:36 AM

I graduated as an RN over 20 years ago, and have witnessed numerous changes to patient care.  Nurses were supposed to be patient advocates in the rare instances of uncaring or unsafe practices; however, now it is impossible to fight every battle when hospitals are business and nurses are barely getting basic care done because of inadequate facilities and overloaded wards .  In my days of hospital training, research meant trekking over to the University of Alberta medical library for hours upon hours.  Now, that same information is available online within minutes; not only to healthcare professionals, but to patients as well.  I feel that some physicians are not comfortable discussing information obtained by their patient.  Perhaps this is out of arrogance that they already know it or fear that they might not!  I also believe sub-specialization has potential barriers to good care, because many of these physicians are so focused on their area of study they have lost the ability to see the whole picture.  Often times they miss seemingly unrelated symptoms and ultimately lose the ability to form a proper diagnosis.  I personally have witnessed several physicians pretend to know about different conditions; however, when questioned it was abundantly clear that they had no idea.  There is no shame in not knowing everything, patients don't expect their medical team to know it all, but they do expect the professionals that they are counting on to be honest and to do their best to find the answers.  Surely, if patients can do the reasearch to find out what is wrong with them, they can expect that same effort from their physicians.  All to often, the physician sees a patient as being too complicated and doesn't put in the same effort they would if it was a loved one.  On a personal note, I was admitted to hospital and had successfully known my diagnosis.  The ER physician ignored me, the next day I told the IM specialist and he dismissed it, and on the third day, I was finally diagnosed properly.  The IM physician returned to my room and apologized.  He said he had never heard of that condition before.  He could have easily stayed away from my room and gone about with his other patients, but he didn't do that!  To this day, I have a tremendous amount of respect for him, because he cared enough to apologize and admit he didn't know.   There would be a lot less complaints and mistakes if physicians, nurses, etc. work together with our patients, even if that means admitting we don't know, but we'll work hard to find the answers.  It's gotten so complicated, but it's really simple... all patients want is a medical profession that has compassion, honestly, and is willing to listen, answer questions and collaborate a plan of care together.  

 

 

Trevor Theman said : Subscribe Mar 20, 2017 at 9:33 AM

I appreciate the comments by Drs. Das and Rottger.

Timeliness/efficiency of complaint resolution is an ongoing challenge. Some complaints are easily and quickly resolved, within days of receipt. Others, especially those that name multiple physicians, that require information from more than one physician  and other providers, and those for which expert opinion is sought, take longer. Accessing and receiving copies of charts may also lengthen the process. Finally, some complaints are resolved after meetings with the physician(s) and complainant once all the information has been gathered and the Investigation Report finalized, also adding to the time to resolution.

John Rottger said : Subscribe Mar 16, 2017 at 7:16 PM

Dear Trevor, I appreciate your review of the process. One phrase is notable by it's absence; "in a timely manner". As you are aware, any complaint is an extremely stressful experience for a physician. My experience and that of some colleagues who do expert witness reports see that resolution of a complaint is a very slow process which could be done a lot more promptly. 

Dr. Madhavan Das said : Subscribe Mar 09, 2017 at 1:31 PM

Dr. Trevor Theman, I appreciate this initiative.  In an era of modern approach to medical practice with more time spent on paper work and computers, are we learning to replace the importance of human interpersonal interaction - the medium through which the caring cure happens.  Even though 'patient advocacy' is a much often used terminology in healthcare system, a clear insight into this is difficult unless one views it objectively - as a patient or standing in his/her shoes. Medicine once practiced as a 'caring profession' is now metamorphosed into the 'business model' with some impact into the tapping of the skills by the needy patients.

When the frail patient is weak enough to think about what is fair, the role should be picked up by the ethical mind of the caring physician without waiting for the patient to ask for. Every effort should be made by the ethical physician to provide the best of the skills s/he has. The wise sentence in this context I heard from my Professor ( and still reverberates in me ) is quoted : " when the case in front of you is difficult, ask what you would want for the patient if s/he was your next of kin or the dearest person in your life.. and proceed ".

We need to safeguard the standard of healthcare provided using the provisions of a transparent system of The College's disciplinary process which is kept as completely unbiased.  

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