In this first of three articles on medico-legal issues, we advise physician leaders about their responsibilities in cases involving the investigation or discipline of a physician.
In Canadian Medical Protective Association (CMPA) cases that involve investigation and discipline of a physician by a hospital or health authority, issues concerning fair process feature prominently. These cases illustrate that physician leaders should be aware of their organization’s bylaws, policies, and procedures for investigating and disciplining doctors. Top
Principles and rights
All physicians are entitled to procedural fairness when facing an administrative proceeding. The principles of natural justice and fair process require decision-makers to follow the appropriate procedures when investigating and adjudicating complaints or issues about a physician, as well as when conducting hearings into possible disciplinary actions.
By following appropriate processes and respecting established protections, physician leaders can more effectively manage the situation. Leaders will also be able to minimize the risk of legal actions due to unfair procedures. Top
Hospital bylaws establish a framework under which doctors and other health care providers provide clinical care. Physician leaders should be familiar with and prepared to implement their organization’s bylaws (including any proposed modifications) and procedures. Top
Privileges and contracts
In hospital and health authority investigations and proceedings, the rights of doctors are determined by their professional relationship with the institution.
Most physician leaders have experience with the traditional privileges-based model, which is a unique legal relationship between physicians and hospitals. This model gives physicians certain procedural and substantive rights, including rights concerning changes to their privileges. Under this model, the processes hospitals can use to suspend and terminate a physician’s privileges are legally governed by the hospital or health authority’s bylaws. These processes are not governed by traditional human resources or employment law principles. Top
Most bylaws guarantee physicians certain procedural rights if their privileges are suspended or terminated, such as a right to notice of the suspension/termination, the right to know the case against them, and potentially the right to a hearing with legal counsel present. Physician leaders should be acquainted with their province’s or territory’s legislation and regulations on renewing, restricting, and terminating privileges, as well as the associated procedures set out in hospital bylaws.
As physician–hospital relations evolve, doctors’ privileges are being replaced, in some instances, by employment or contractual agreements. The procedural safeguards for privileges that were guaranteed in hospital bylaws might not necessarily extend to physicians in other practice arrangements. This may include when physicians work under contract with a hospital. Although there are Canadian examples of hospitals and health authorities entering into employment contracts with physicians, the majority of physicians now working in hospitals or health authorities are independent contractors with privileges, not employees of the hospital or the health authority. Top
Physician leaders should be familiar with their organization’s protocols for receiving and handling complaints, as described in the bylaws of the institution or health authority.
Physician leaders should strive to ensure that the processes stipulated in hospital bylaws are followed and physicians’ rights are respected, including:
notice of a complaint and full disclosure of relevant documents
the opportunity to obtain advice and representation from legal counsel
the ability to respond to a complaint
a hearing on the matter
the ability to present evidence and examine and cross-examine witnesses
an impartial adjudicator
a decision within a reasonable period
reasonable resolutions, including proportionate sanctions
written reasons for any decision
the right of appeal
As alluded to above, complaints about a physician from hospital staff may also be subject to employment legislation or could involve a union grievance in some cases. Top
A complaint against a doctor can lead to the hospital imposing sanctions, such as restricting, suspending, or terminating his or her privileges. When a patient complaint leads to disciplinary action or changes to a doctor’s privileges, the hospital administration is generally responsible for communicating to the patient the investigation’s findings and the actions taken.
Hospitals are increasingly relying on alternative dispute resolution (ADR) processes to address complaints. Physician leaders may recommend that the physician consider professional development programs in areas such as communication, dealing with conflict, and managing stress. Physician leaders should help ensure that information gathered and disclosed during an ADR is kept confidential, where appropriate or required. Top
Sharing information with colleges
In most Canadian jurisdictions, hospitals are required by legislation and regulations to advise the medical regulatory authority (college) when physicians are suspended or their authority to admit, attend, or treat patients has been terminated or altered because of incompetence, negligence, or misconduct. Colleges might also have to be notified when doctors resign during an investigation into alleged incompetence, negligence, or misconduct.
Physician leaders should document their decisions and actions to comply with their institution’s bylaws and processes. This includes decisions and actions in the areas of administration, coordination of professional services, quality assurance, complaints, and physician professional development. Top
The CMPA monitors changes in the law and in the medical practice environment, as well as evolving leadership models.
The CMPA generally does not assist physicians who are acting in an administrative capacity. Physician leaders should ensure that they have the appropriate liability protection for their specific role in their institution, including liability protection that may be provided by the hospital or regional health authority.
James Sproule, MD, is managing director of physician services at the Canadian Medical Protective Association (CMPA).
Tracy Murphy is a senior policy advisor at the CMPA. Top
This is the first of three articles written by the Canadian Medical Protective Association (CMPA) for physician leaders. The topics are: natural justice and fair process; professionalism and managing physicians who exhibit disruptive behaviour; and the physician leader’s role in managing patient safety incidents. More information on all these topics can be found in the CMPA’s Medico-legal handbook for physician leaders (2015), available online at cmpa-acpm.ca.
For the purposes of this document, procedural fairness refers to the legal concept that administrative proceedings should be conducted in a manner that is fair to the parties involved. Although the extent of fairness varies with the nature of the proceedings, at minimum, affected parties should be given a fair opportunity to participate in the proceedings. This includes providing parties with notice of the proceedings and the ability to respond to any prejudicial argument or evidence.
This article has been reviewed by a panel of physician leaders.