■ Duties and responsibilities:

Expectations of physicians in practice

Understanding how Colleges handle complaints or allegations of professional misconduct

Originally published June 2012; Revised May 2021
P1202-5-E

Over the course of their careers, physicians may face a medical regulatory authority (College) complaint. The most serious type of complaint is one which alleges professional misconduct. These complaints most often originate from patients, but may also be initiated by third parties, including other physicians and healthcare providers, hospitals and institutions, family members, and insurance agencies.

Colleges take allegations of professional misconduct very seriously and are generally obligated to investigate the matter thoroughly. These investigations can often cause physicians significant stress, particularly given that—in a very small proportion of the cases—the outcome could include loss of licence, licence suspension, limitations or modifications placed on licence, or a reprimand.

Many patient-initiated complaints do not rise to the level of professional misconduct. However, when physicians are facing a professional misconduct investigation, they should promptly contact the CMPA. If eligible for assistance, in addition to providing timely advice through its physician advisors, the Association may in some cases provide legal representation to assist members where legal advice is required.

The CMPA is available to assist members with College complaints relating to the professional practice of medicine. The CMPA will generally not assist with complaints primarily arising from business or personal issues, such as advertising, rental or leasing disputes, employment issues, and marital and family disputes. Early contact with the Association can often alleviate stress for physicians and contribute to a satisfactory resolution.

Colleges obligated to review complaints

All provinces and territories have legislation giving Colleges the mandate and authority to regulate and discipline the medical profession. The Colleges' role is to protect public health and safety. Colleges are legally obligated to review all complaints they receive about physicians.

Investigating complaints

While each College has its own procedures and processes for handling complaints, it is generally the nature of the complaint that determines the extent of the process.

To resolve most complaints, Colleges will conduct a confidential review of the facts. Complaints may be about a lack of parking spaces near the doctor's office, long waiting periods in a physician's office, or communication issues such as not providing reports in a timely manner (e.g. to third parties). Colleges generally resolve this type of complaint through correspondence between the College, the physician, and the complainant. Physicians are generally asked to respond to the complaint in writing, providing all necessary facts. For members eligible for assistance, CMPA physician advisors are available to assist in the preparation of the response. On occasion, legal counsel may also assist members in responding to this type of complaint.

After a careful review of the facts of this type of complaint, including the physician's explanation, the College will make a finding. There are no hearings and physicians provide an explanation only through a written submission.

However, when a complaint is deemed more serious and concerns a physician's care, conduct, or capacity, Colleges will conduct a more formal investigation.

If a physician's fitness to practice or competence is questioned, the College may order the physician to undergo a skills assessment, or medical or psychological examination.

Should the College believe an act of professional misconduct or incompetence has occurred, it will generally investigate more extensively to determine what, if any, remedial action should be taken.

College investigators typically have broad powers. They may inspect a physician's administrative records, patient records, and physical premises and practice. The notice period provided to physicians of an upcoming inspection varies in each jurisdiction and depends on the College's procedures. During an inspection, investigators can take documents including medical records and administrative records. In some provinces and territories, investigators are permitted to physically remove documents, while in others documents can be copied and returned. Investigators may also question the complainant and the physician, and interview witnesses such as office or clinic staff, family members, other healthcare professionals, or members of the public.

Outcome of investigations

If the investigation confirms there is an issue, the College may impose a range of remedial measures to be completed by the physician.

They may caution physicians, or order physicians to take specified continuing education or remedial action to alter their practice. If the issue is related to a physician's capacity to practise because of a mental or physical condition, the College may impose restrictions on the physician's licence and refer the physician to a physician health program.

The outcome may also include a finding of professional misconduct. The term professional misconduct is imprecise, and is further explained in provincial or territorial statutes and regulations.1 Most explain the term using phrases such as conduct unbecoming a member; demonstrated incapacity or unfitness to practise medicine; unbecoming, improper or unprofessional conduct; or engages or has engaged in unbecoming or criminal conduct.

Some Colleges have tried to clarify what is meant by the term by creating a non-exhaustive list of activities that will result in a charge of professional misconduct. This gives them discretion in determining the activities that constitute professional misconduct. In the past, physicians have been charged with professional misconduct for activities such as advertising their services using testimonials, participating in cross-border internet prescribing, falsifying a College application form, treating family and friends, accepting gifts, improperly performing intimate procedures (e.g. gynecological examinations), and violating professional boundaries.

Hearings for professional misconduct

Cases of professional misconduct are referred to the appropriate College committee for further investigation and a hearing.

This committee is known by a variety of names in different provinces and territories. For example, the College of Physicians and Surgeons of Ontario refers a potential case of professional misconduct to its Discipline Committee, while the College of Physicians and Surgeons of Manitoba refers such a case to its Inquiry Committee.

If after an extensive investigation a College believes a physician is guilty of professional misconduct, it lays formal charges and schedules a hearing. The hearing is a quasi-legal process with members of the committee forming a panel. The panel is typically composed of a combination of physicians and public members of the committee.

The hearing can have many of the characteristics of a court trial with College lawyers prosecuting the charges, lawyers to defend the physician, and a panel reporter. There can also be sworn witnesses, examinations, and cross-examinations. The physician and the complainant may also be called as witnesses, and hearings are generally open to the public.

The panel considers the charge, hears the evidence, and ascertains the facts of the case. Finally, it determines whether the allegations have been proven. In some jurisdictions, the committee has the authority to impose the penalty it deems appropriate within the limits set out in the legislation. In other jurisdictions, the panel makes a finding and recommends a decision to the College's governing body. The governing body is then responsible for making a decision on the charge and determining the penalty, if any.

A case of professional misconduct

The following case illustrates how a College investigation can lead to charges of professional misconduct against a physician.

A patient complained to the College that his family physician prescribed benzodiazepines inappropriately. The College's investigator sent a letter to the physician notifying her of the complaint. A few weeks later, the investigator provided the doctor with a copy of the patient's letter detailing the concerns. The College asked for a written response and a copy of the patient's medical record.

The investigation was broadened when the College's review of the medical record raised concerns about the physician's prescribing of opioids and benzodiazepines. In a visit to the physician's office, the College investigator randomly selected and removed 30 medical records together with another 15 records that were connected with pharmacy profiles from 2 nearby pharmacies. A review of the pharmacy profiles confirmed that large quantities and large dosages of opioids and controlled drugs were being prescribed by the physician.

As part of the investigation, the College appointed a medical inspector to give an opinion on whether the physician's care and management of the 45 patients met the standard of practice for prescribing opioids, benzodiazepines, and anti-depressants. The inspector stated that in many charts there was a serious lack of assessment and diagnosis before opioids were prescribed. There was also a problem of inadequate follow-up. The inspector concluded that the physician did not meet the standard of practice in her care and treatment of 35 of the 45 patients. He also stated that the physician showed a lack of clinical judgment, but did not demonstrate a disregard for the welfare of her patients.

The physician admitted to the facts found by the medical inspector and the College found her guilty of professional misconduct. Counsel for the physician and counsel for the College made a joint submission as to an appropriate penalty. In a hearing before the College, the physician was reprimanded and limits were placed on her practice that included a ban on prescribing opioids and controlled drugs. A number of other penalties were imposed on the physician, including further unannounced inspections of her practice and payment of $3,600 to the College to cover the costs of the investigation and hearing.

Penalties for professional misconduct

When a physician is found guilty of professional misconduct, the penalty takes into consideration all the circumstances of the case.

Some penalties can be professionally and financially damaging. Although consequences vary, physicians can have their licence revoked, suspended, or subject to limitations or modifications, or they may face a reprimand. They can also be required to pay fines and to cover the cost of conducting the hearing, which can amount to many thousands of dollars. A loss of reputation may also arise since the outcomes of the hearing are usually made public and often published in print or on the College's website.

While the CMPA may provide legal representation, it does not typically pay any fines, penalties, or costs assessed against a member by the College (e.g. the College’s costs for the hearing).

Appealing a College decision

Physicians found guilty of professional misconduct can appeal the decision. The specific appeal route will vary depending on the province or territory. The CMPA will normally not assist a member to appeal unless there are reasonable grounds to believe the physician was denied a fundamental procedural right (e.g. not being given an opportunity to respond to the allegations).

CMPA assistance

The CMPA will generally assist members with College complaints relating to the professional practice of medicine. However, CMPA assistance will generally not be available for complaints primarily arising from business or personal issues.2 Physicians who receive notice of a College complaint are urged, before responding, to promptly contact the Association.

When members face College matters for which they are eligible for assistance, they will be assisted by the Association’s knowledgeable and experienced physician advisors. In some cases where legal advice is required, the matter will be referred to legal counsel. Where a member enters into an undertaking (agreement) with the College or is subject to an order, the member’s failure to comply with the undertaking or order may affect the member’s eligibility for continued assistance from the CMPA with the issue related to the undertaking or order. The Association also does not typically pay fines, penalties, or other costs assessed against a member by the College (e.g. the College's costs for the hearing).

Members are generally eligible for assistance from the CMPA to defend against allegations before the College of sexual impropriety related to the practice of medicine. However, if the College makes a finding that the member engaged in sexual impropriety, the CMPA will generally withdraw assistance and/or decline further assistance with any legal matters arising from the same facts in which the burden of proof is lower. Assistance may also be withdrawn or declined in any related civil action unless it includes allegations of medical negligence.3 

The CMPA will generally withdraw and/or decline assistance with a College matter following a finding in a criminal proceeding arising from the practice of medicine where the College matter arises from the same facts that led to the criminal finding.

Notes

  1. Some jurisdictions use the term “unprofessional conduct” instead of “professional misconduct.”
  2. Matters primarily arising from business and personal issues include such things as advertising, rental or leasing disputes, social media activity, employment issues, and marital or family disputes.
  3. The CMPA always maintains discretion to assist with existing or future related matters that arise from the same facts to which a finding relates.

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.