Ontario’s medical watchdog has made “backroom
deals” with more than 200 doctors considered “high risk” to the public
to quietly resign or restrict their practices, a Star investigation has
found.
Some have been the subject of complaints about
errors as serious as botching surgeries, injuring mothers and babies
during childbirth, sexually abusing patients, and abusing and improperly
prescribing narcotics.
Medical negligence lawyers have long
complained the deals are made behind closed doors, with no input from
harmed patients. The public is kept in the dark about rationale and
context.
Patients’ lawyers argue Ontarians can learn
more about physicians from websites such as RateMyMD than from the
self-regulator’s online register, which is intended to help patients
choose doctors.
While there may be value in some of the undertakings, it’s hard to know because of the dearth of information, they say.
Toronto Star File Photo
Medical negligence lawyer Paul Harte argues there's no law that
actually prevents the College of Physicians and Surgeons from being more
transparent about undertakings.
The lack of transparency translates into a
lack of accountability from both physicians and the college, they
charge, adding that patient safety and public confidence in the health
system are ultimately compromised.
Critics argue more cases should be dealt with
through public disciplinary hearings instead, but that would take more
time and resources.
The CPSO defends its use of undertakings,
arguing they are effective tools to “protect the public interest.”
Complaints or concerns with doctors prompt investigations or referrals
to the college’s discipline committee, which are resolved through
resignations or practice restrictions, thereby keeping the public safe,
according to the college.
Undertakings are enforceable. Breaches can result in investigations or disciplinary action being re-started.
The CPSO says it is working to make more information publicly available through an ongoing
“transparency project,” but is restricted by legislation in how far it can go.
Lawyers who represent doctors say it would be unfair to publicize unproven allegations.
AN ANALYSIS of
physician profiles
on the CPSO’s website, from 2005 to 1014, inclusive, shows that 164
doctors struck deals with the college — outside of the public eye —
resulting in restrictions being placed on their practices.
Among them are doctors who can no longer see
any patients but still have “M.D.” beside their names, surgeons who can
no longer do surgery, and physicians who can no longer prescribe
narcotics.
The public register offers no explanation for why the deals were made. There is no mention of allegations or complaints.
A large number of restrictions have been
erased from the register. The college posts only those currently in
effect and deletes those that applied to physicians in the past.
“The public has no idea what is going on. The
public might view a doctor differently if they were aware of the history
of undertakings and if they knew why they were there,” says Joni
Dobson, chair of the medical malpractice section of the Ontario Trial
Lawyers Association.
MEDICAL NEGLIGENCE lawyers decry the “secretive process” of cutting deals and charge that the college is shielding doctors from public scrutiny.
There is no explanation of how the process works on the college’s website.
“Who knows if the deals are reasonable or
unreasonable,” says Toronto lawyer Paul Harte, who has been leading the
charge for more college transparency. “Without any way of figuring this
out, what we have is backroom deals.”
More cases should be handled by the college’s
discipline committee to allow greater transparency and enable physicians
to learn from the mistakes of peers, he argues.
Discipline proceedings are open to the public and the decisions and written reasons stemming from them are also public.
Public confidence in the health system is at
stake when cases that should go to discipline are instead resolved
through undertakings, said the Health Professions Appeal and Review
Board, which has authority to reconsider CPSO decisions.
HPARB made that comment in a
2012 decision
that overturned a college ruling allowing an obstetrician-gynecologist
accused of bungling surgeries to resign instead of facing a disciplinary
hearing.
“The public’s perception of, and faith in, the
medical profession” must be taken into account when making decisions to
protect the public interest, the board’s written decision states.
“The alleged egregious breach of the standard
of care . . . necessitates a full airing before the discipline committee
in order not to bring the administration and provision of medical
services in this province into disrepute,” it said.
College spokesperson Kathryn Clarke says undertakings protect the public by mitigating the potential for future problems.
“For example, a doctor may enter an
undertaking to restrict his practice where there has been a concern
raised about that practice area and the physician is prepared to make an
agreement to practise differently, or not practise at all, and the
public is protected,” she says.
Clarke takes issue with criticism over the
lack of transparency, pointing out that the fact a doctor has agreed to a
resignation or restriction undertaking is noted on that physician’s
profile on the register.
THE STAR’S investigation identified 36
deals in which physicians in trouble with the college quietly resigned.
In exchange, the college dropped investigations into 19 doctors, as well
as plans to hold public hearings and prosecute 13 others. (The register
does not say what the quid pro quo was for an additional four
resignations.)
There are 17 more cases of doctors voluntarily resigning prior to undertaking never to practice medicine again.
Allegations that led to most resignation
undertakings are included on the register. Among them: incompetence;
professional misconduct; disgraceful, dishonourable or unprofessional
conduct; and failure to maintain the standard of practice.
The register provides no context for most of
these allegations, though underlying complaints were mentioned for a
few: Four doctors were accused of sexual abuse, one of being in
possession of child pornography, and one of failing to maintain the
standard of practice in relation to 26 patients.
(The Star did not include in its analysis
undertakings that the college’s discipline committee took into account
when imposing penalties. Details of these deals are made public in
hearings. Also excluded were interim undertakings, which restrict
physicians’ practices until they appear for hearings.)
TORONTO MEDICAL negligence lawyer Amani Oakley says shining the light of transparency on undertakings is key to reducing medical errors.
“We are not going to get a handle on all these
errors if we keep huddling in dark corners, making hush-hush deals with
some of the folks who are responsible for these medical mistakes,” she
argues.
The 2004 study on patient safety in the
Canadian Medical Association Journal
found that “adverse events” occur in about 7.5 per cent of
hospitalizations. These are unintended injuries or complications
resulting in death, disability or prolonged hospital stay that arise
from health-care management.
Of almost 2.5 million annual hospitalizations,
about 185,000 result in adverse events. Of those, close to 70,000 are
potentially preventable. (Some adverse events are the unavoidable
consequences of health care, such as unanticipated allergic reactions to
antibiotics.)
“We need to air out the problems, examine them
in the light of day, and let the victims express their concerns and
share their experiences so that other health-care providers can learn
from the mistakes of others,” Oakley says.
Dobson warns patient safety is jeopardized when people are denied information that could affect their choice of doctor.
“Those who practise medical negligence know
that patient ignorance is not bliss …. There is no reliable place to
find information about doctors. Instead, patients must rely on gossip or
doctor ratings websites. While both may be entertaining, neither is
particularly reliable,” she wrote in a recent
blog post on her association’s website.
Critics contend the college prefers to dispose
of cases with undertakings rather than disciplinary hearings because
the former are expedient. Hearings typically involve big investigations
and the expenditure of a lot of time and resources.
“They don’t want to spend the money to go
through the legal process of prosecuting through the discipline
committee,” charges London, Ont. Lawyer Barbara Legate.
It’s an accusation the college denies.
“The college would virtually always pursue
discipline if the physician is still practising and we have the evidence
needed to obtain a discipline finding,” Clarke says.
Undertakings are useful when the college doesn’t have enough evidence to successfully prosecute a doctor at a hearing, she said.
Clarke points out that a resignation
undertaking may offer more public protection than a licence revocation,
the harshest penalty that can result from a disciplinary hearing.
Physicians who have had their licences revoked can reapply for them down
the road. But that’s not the case if they have agreed to undertakings
never to do so again, in Ontario or any other jurisdiction.
Lawyer Lonny Rosen, who represents health
professionals in trouble with regulatory colleges, argues that physician
privacy must be taken into account when disposing of cases.
“It wouldn’t be fair to disclose unproven
allegations, particularly when there is no risk to the public. Just
because someone is curious about the underlying facts doesn’t mean that
it is in the public interest for them to have that information,” he
says.
An undertaking can effectively address
potential concerns with a physician, even without admission of
allegations, says Rosen. It can be preferential to a disciplinary
hearing, which is “a terribly punitive process for the member, the
complainant and for any other witnesses. It’s an adversarial system and
stakes are high.”
Health Minister Eric Hoskins
has said improving transparency in the health system is one of his top
priorities. Last October, he ordered all health regulatory colleges to
step up efforts to give the public greater access to information.
“The default in our health system should be
disclosure,” he said in a written statement, when asked about whether
there should be more transparency around undertakings.
Since 2012, the CPSO has been engaged in a
transparency project
that aims to make more information about doctors publicly available. It
is looking at posting more information about undertakings on its
register.
Currently, it posts whether physicians have
undertakings reflective of “high risk,” namely those that involve
resignations or restrictions.
But there are many others the college deems
reflective of less risk, which are kept under wraps. It declined to
reveal the exact number.
Undertakings reflective of “no/minimal risk,”
“low risk,” and “moderate risk” can result from patient complaints or
from problems flagged by the college’s own practice assessment program,
which sees doctors review the work of peers.
The lower risk undertakings include agreements
to comply with a particular college policy or guideline, participate in
remedial education, and work with a mentor or supervisor. Monitoring
agreements that arise over concerns with physicians’ health are also
kept confidential.
The college is looking to make public any
undertakings that reflect moderate risk. Clarke says some contextual
information about undertakings might find its way onto the register as
well.
“If it is something where we think patients
would want to know and that it is going to make a difference to them in
choosing what doctor they go to, then we want to make that public,” says
CPSO president Dr. Carol Leet.
Last year, CPSO staff proposed amending a bylaw to allow more information about undertakings to be posted on the register.
But the college’s governing council nixed that
idea last December. Undertakings were dropped from a list of proposed
topics to be included in a public consultation on transparency and bylaw
changes, which is currently underway.
Now the college is considering a policy change to make more undertaking information public.
Clarke says the college is limited in how transparent it can be, by legislation.
Section 23 of the Health Professions
Procedural Code (Schedule 2 to the Regulated Health Professions Act)
lays out what information should be included on the register. While it
does not use the term undertakings, it says the register shall contain
“the terms, conditions and limitations that are in effect on each
certificate of registration.”
The college contends the legislation precludes it from including some information on the register.
“If, for example, a practice restriction is
imposed arising from an investigation or a practice assessment,
information stemming (from) those processes are not public by law and,
thus, only the fact of the restriction is included on the public
register,” Clarke says.
But that’s not how Harte reads it.
“This is an important point because the
college has a history of claiming that they are unable by law to be more
transparent. More often than not, the decision is a pure policy
decision. There is no law prohibiting them from being more transparent,”
he argues.
“The underlying premise here is that there
should be transparency, above all. Since we can’t evaluate whether the
college is making appropriate decisions, it’s difficult to know if they
are really in the public interest.”
With data analysis by Andrew Bailey.
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