Natural justice and alternative dispute resolution:

their importance in managing physician performance

Daniel Boivin, LLB, Guylaine Lefebvre, MD, Steven Bellemare, MD

 

The formal complaint and discipline processes set out in hospital bylaws and provincial legislation and regulations play an important role in providing fair and predictable forums for resolving disputes. However, these mechanisms address a limited range of issues, with respect to only one party. Approaching budding disputes earlier and allowing the individuals involved to disclose the true interests underlying their behaviour can provide opportunities for all parties to identify lasting solutions. As such, good knowledge of the principles of natural justice and the potential advantages of alternative dispute resolution mechanisms are invaluable tools for the physician leader.

 

KEY WORDS: dispute resolution, disruptive behaviour, natural justice, just culture

 

Vignette

 

Dr. Richards is a highly regarded thoracic surgeon at a large teaching hospital. His recruitment was seen as a major win for both the hospital and the university, given his stellar reputation as a clinician, teacher, and researcher. Lately, however, there have been concerns about Dr. Richards’ performance. He is late or absent from academic rounds, he snaps at personnel, staff have complained that he has yelled at them, and he is late in his record-keeping. He has stopped attending departmental meetings but is highly critical of decisions and communicates this disagreement in “reply all” email communications.

 

In the operating room, many nurses now refuse to work with Dr. Richards. The atmosphere in the department has become toxic. A formal complaint was lodged when Dr. Richards aggressively threw a clipboard on a ward clerk’s desk. He faced a disciplinary hearing before the Medical Advisory Committee, where his disruptive behaviour and record-keeping deficiencies were flagged as issues. As a result, his privileges were suspended for two months.

 

The disciplinary process was in line with standards and Dr. Richards will not appeal the decision. His suspension will affect his colleagues and his patients. During the two months, booked surgeries will be rescheduled and patients will be added to his colleagues’ already long lists. The suspension will give Dr. Richards an opportunity for reflection about his behaviour and will serve as a message to the rest of the staff that the hospital does not tolerate disruptive behaviour.

 

Will the atmosphere and interpersonal relationships in the department be any better when Dr. Richards returns? Will the suspension truly fix the issues? Could we have done better?

 

The pillars of natural justice

 

The principles of natural justice are well recognized in law as rules to apply to fulfill a duty to provide procedural fairness. Developed by decades of jurisprudence, they generally require judicial, quasi-judicial, and administrative decision-makers to arrive at an unbiased decision after providing the parties with a fair opportunity to make representations. Judges in Canada’s Supreme Court wrote,

 

I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.1

 

The jurisprudence is clear that natural justice is “flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected.”1 Whether the obligation of natural justice applies to a particular context and, if so, to what extent, is a complex matter that is best discussed with hospital legal counsel. However, it is helpful to be cognizant of the three major aspects of natural justice and to apply these principles in the decision-making that is part of health care management, as these principles are simply full of common sense. Understanding and applying the three major aspects of natural justice in health care management can be valuable in helping build a positive workplace culture.

 

The right to know the nature of the complaint

Any person against whom a complaint has been made ought to know the nature of that complaint. Not making a physician aware of a complaint against them until many complaints have accumulated and a decision has been made to treat all complaints “en bloc” deprives them, with the passage of time, of opportunities to address older complaints and assess whether any potential remedies might have been effective. This can affect the fairness of the resolution process.

 

An opportunity to respond

The person against whom a complaint is made should have an opportunity to respond to that complaint. Physicians who are presented with a complaint and with management’s decision about that complaint at the same time are typically left with a feeling of dissatisfaction and injustice. The lack of a true opportunity to respond to a complaint is often the reason why a court overturns a management decision.

 

Unbiased decision-making

An unbiased decision-maker must make the decision. Although this principle ensures that the decision is legally valid, its greatest benefit stems from the creation of buy-in by the person who may be negatively affected by the decision. One can imagine that a surgeon whose operating schedule is cut as a result of a discipline process may not accept the decision if it is made by the chief of surgery who then personally uses the freed up operating room time. Quite apart from the legal requirements, biased decision-making is not conducive to healthy work environments nor to the creation of mutual trust. Top

 

The value of alternative dispute resolution

 

Most hospitals provide a formal, well-established process for the prosecution of complaints against professionals. Although these processes are fair and have survived the test of time, they are limited in what they can achieve. In such hearings, the focus is on the conduct of the professional facing discipline. There are few opportunities to examine the conduct of others involved in the dispute or other factors in the work environment. Because they are designed to judge the conduct of one individual, such hearings are not conducive to identification of the underlying dysfunction in a work unit and the repair of a broken work environment. Parties often spend valuable resources on a discipline process only to eventually return a professional to a dysfunctional work environment.

 

Alternative dispute resolution (ADR) mechanisms are much more flexible. They can be designed to respond to the specific requirements of a situation. There is no limit to the number of parties who can be involved in the process or to the nature of the issues that can be discussed. ADR mechanisms allow great flexibility in the design of a solution that is best adapted to the issues at hand; they allow solutions to be applied to the root problem, whereas discipline processes are often limited to applying set consequences to an individual whose behaviour is often just a symptom of more significant systemic issues.

 

Three ADR mechanisms exist: negotiation, mediation, and arbitration.

 

Negotiation

Physician leaders are frequently called on to take part in negotiations, and the approach they adopt in dealing with a matter can drastically affect the result. Many negotiations are conducted using a positional approach. The best example of such an approach is the traditional way to negotiate the purchase of a car or house. Parties typically adopt an exaggerated initial position, which often plays to the other side’s weakness. When adopting such a strategy, parties usually make unreasonably high demands that leave room for concessions on issues they do not care deeply about, all the while obtaining concessions they desire from the other party, in the hope of eventually reaching a point of mutual agreement.

 

In addition to being draining and time consuming for all parties, positional bargaining can produce suboptimal outcomes: bluffs, misrepresentations, threats, and promises all contribute to mistrust or serve to poison the long-term relationship. Although the difficulties of positional bargaining may be tolerated in some circumstances, they can lead to negative results in the context of resolution of workplace difficulties.

 

Interest-based bargaining presents a better approach to workplace negotiations by focusing not on the parties’ positions, but rather their interests. The difference is well illustrated by the often-cited example of two children fighting for the last orange in a fruit basket. Each wants the orange. They provide arguments as to why they should have the orange and the likely result of this negotiation is that they would each settle for half the orange. Each will have obtained half of their wish: not bad, but not optimal. If, instead of focusing on their positions, each had focused on their interests — one child stating that they wish to eat the pulp and the other stating that they need the zest to bake a cake — they could have each gotten 100% of their wishes. Top

 

The orange example is obviously simplistic, but it demonstrates that novel solutions are reached by going beyond positions and exploring interests. The real issues are brought forward and the parties can work on finding solutions to these issues rather than identifying a compromise that may not be a true solution to the underlying problems. Such compromises often leave some of the parties with a sense of injustice or incomplete justice.

 

Mediation

Disputes in health care environments are often based on a multitude of factors, and it may be very difficult to identify all relevant interests. In fact, it is unrealistic to think that a professional facing a complaint of disruptive behaviour will feel comfortable sharing their true interests when negotiating with a hospital administrator. This is where mediation is helpful.

 

In mediation, a neutral third party (an outside professional mediator or perhaps another trained hospital leader with no stake in the dispute) assists the parties in identifying the true underlying interests on both sides of an issue. Successive private caucuses with each party facilitate the process. Once the mediator establishes a level of comfort, allowing the parties to disclose their interests to him/her, the mediator can eventually guide the parties to a solution where the various interests intersect.

 

Arbitration

Arbitration involves a similar process, but one in which the neutral third party imposes a decision after exploring all the interests and discovering all the facts. As such, mediation emerges as a favoured method to resolve disputes in the health care environment, because it involves mutual agreement of the parties to settle their dispute.

 

The value of a staged approach

 

A workplace culture that promotes early management of conflicts within a just culture framework will likely permit identification of potential disruptive behaviour and reduce the risk of accumulated incidents that lead to no-win situations for both individuals and institutions.2 The “just culture” approach provides guidance for decisions and actions from complaint to resolution. A just culture algorithm and method, if applied skillfully by physician leaders, might even obviate ADR.3

 

The Vanderbilt model for addressing disruptive behaviour proposes a tiered approach with four graduated interventions. Initially, an informal intervention, such as a “cup of coffee conversation,” can suffice to foster awareness of the issue.4 In most cases, this type of intervention creates enough insight on the part of the physician exhibiting disruptive behaviour to satisfactorily address the problem. Occasionally, when insight isn’t sufficient to engender lasting change, such an early and timely discussion may provide enough information to allow the physician leader to conclude that underlying interests should be explored and, eventually, that the situation warrants mediation. Early and skillful ADR through mediation holds the promise of avoiding persistent problems because their underlying causes will have been addressed. As such, the need to escalate to other tiers of intervention (action planning and eventually disciplinary measures) is likely to decrease. Top

 

Vignette revisited

 

Dr. Richards’ department head invited him to an informal discussion and quickly recognized that many underlying issues were at play. With the hospital administration’s permission, mediation was provided and, during that process, it soon became clear that Dr. Richards had behaved in a disruptive fashion because he was facing serious work–life balance issues. His new role as a single parent was interfering with his clinical, research, and teaching duties, and he was not getting appropriate support from colleagues who were envious of his stellar reputation.

 

With the assistance of the mediator, Dr. Richards started on a path of understanding that he could not do everything himself and agreed to consult a mental health professional for a suspected major depressive disorder. In parallel, an intervention with colleagues was also undertaken and the prevailing unhelpful attitude of ignoring work–life balance issues was addressed. Rounds and meeting times were revised to allow professionals with family obligations to participate. Over time, Dr. Richards’ depression improved and the department head dedicated resources to the coaching of staff to foster a more collegial workplace. Department morale improved and numerous collaborations between Dr. Richards and colleagues ensued in the research sphere.

 

Although using the formal discipline process would have addressed Dr. Richards’ behaviour, early mediation allowed for a multi-factorial, lasting solution geared to the underlying issues that gave rise to the tensions and focused on saving relationships. Top

 

Conclusion

 

Interest-based conflict resolution is a powerful, productive method for resolving conflicts in the health care environment, where many problems are multi-factorial. It affords physician leaders the flexibility to explore solutions that disciplinary processes mandated by legislation, regulations, and bylaws cannot provide, such as allowing all the relevant parties to participate in a resolution. ADR is one tool that can be part of a just culture algorithm and, if embedded in a hospital’s rules and regulations, can enable positive solutions to challenging situations. ADR can be used in a variety of circumstances and allow rapid intervention and communication that is conducive to finding solutions geared to the underlying issues and not only to the symptoms.

 

References

1.Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at par. 22. https://tinyurl.com/yxqa7l7u

2.The role of physician leaders in addressing physician disruptive behaviour in healthcare institutions. Discussion paper. Ottawa: Canadian Medical Protective Association; 2013. https://tinyurl.com/tucbb8h

3.Bellemare S. Leveraging the power of a just culture to promote accountability and inform system improvement. Can J Physician Leadersh 2019;5(3):160-2.

4.Hickson GB, Pichert JW, Webb LE, Gabbe SG. A complementary approach to promoting professionalism: identifying, measuring, and addressing unprofessional behaviors. Acad Med 2007;82(11):1040-8. Top

 

Author attestation

Daniel Boivin conceived the overall manuscript and prepared the first draft. Guylaine Lefebvre and Steven Bellemare helped develop the manuscript outline. All authors reviewed and approved the final version of the manuscript.

 

Authors

Daniel Boivin, LLB, is an Ottawa-based lawyer working for the defense of physicians since 1993. He is general counsel for the Canadian Medical Protective Association (CMPA) and is actively involved in leadership education for physician members and their teams.

 

Guylaine Lefebvre, MD, FRCPSC, FRCOG, FACOG, is director of practice improvement at the CMPA, and a gynecologic surgeon and professor at the University of Toronto. She has been involved at all levels of medical education and is now focusing on continuous professional development in safe medical care.

 

Steven Bellemare, MD, FRCPSC, CPE, is the senior physician advisor in the CMPA’s Department of Practice Improvement. He has facilitated several hundred education sessions for physicians and their teams. He has a special interest in patient safety and leadership training, including just culture.

 

Correspondence to:

GLefebvre@cmpa.org

 

This article has been peer reviewed.

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