Originally published June 2012
Over the course of their careers, physicians may face a 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 other third parties, including other physicians and healthcare providers, hospitals and institutions, family members, insurance agencies, and others.
While many physicians will interact with their College regarding a complaint or proceeding, only a small number of physicians will face allegations of professional misconduct. In Ontario, for example, each year 8% to 9% of all physicians are notified of a complaint against them whereas 1% to 2% of all physicians have a more serious charge of professional misconduct levelled against them.
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 the outcome could include loss of licence, licence suspension, limitations or modifications placed on their licence, or a reprimand.
When facing a professional misconduct investigation, physicians should promptly contact the CMPA. In addition to providing timely advice, the Association will generally provide legal representation to assist members in these cases.
The CMPA is available to assist members with all College complaints. 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.
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. CMPA medical officers 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, including the physician's explanation, the College will determine findings. 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 or incompetence. The term professional misconduct is imprecise, and is further explained in provincial or territorial statutes and regulations. Most explain the term using phrases such as conduct unbecoming a member; demonstrated incapacity or unfitness to practise medicine; unbecoming, improper or unprofessional conduct; engages or has engaged in unbecoming or criminal conduct.
Some Colleges have tried to clarify what is meant by the term and created a list of activities that will result in a charge of professional misconduct. It is impossible for these lists to be exhaustive, so Colleges have a generic statement giving a broad interpretation of the term. 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 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.
Investigating professional misconduct
Cases of professional misconduct or incompetence 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 or incompetence 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 narcotics 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 narcotics 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 narcotics, 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 narcotics 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.
Appealing a College decision
Physicians found guilty of professional misconduct or incompetence can appeal the decision. The specific appeal route will vary depending on the province or territory. The CMPA will normally not assist a member with an appeal unless the physician was denied a fundamental procedural right (e.g. not being given an opportunity to respond to the allegations).
Physician members are eligible to receive CMPA assistance when facing any type of College complaint. Physicians who receive notice of a College complaint are urged, before responding, to contact the Association to obtain advice from experienced medical officers. It is critical for members who are facing a charge of professional misconduct to contact the Association in a timely way.
Although College issues do not always require legal counsel, members facing charges of professional misconduct will generally receive legal representation. If there is a hearing, legal counsel will take steps to prepare and defend the member's case. While the CMPA will provide legal representation, the Association 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).
Physicians should respond to College complaints in a timely and clear manner. The CMPA is available to advise members on how to formulate an effective response. If warranted, legal counsel can also be available to assist members facing allegations of professional misconduct or incompetence.