What does it mean when a complaint leads to a disciplinary hearing?

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What does it mean when a complaint leads to a disciplinary hearing?
In our latest Professional Conduct Corner, we help you understand the charging standard for a disciplinary hearing

By Colin Basaraba, CPSA Associate Complaints Director, Hearing & Legal Referral and Elizabeth Ulmer, CPSA Litigation & Hearings Counsel

Not every complaint CPSA receives proceeds to a disciplinary hearing. In fact, only a very small percentage of complaints do—recent numbers suggest less than two percent of complaints end up before a hearing tribunal.

This is not because we don’t take complaints seriously. The Health Professions Act (HPA) provides several avenues through which health regulators can resolve complaints, depending on the individual circumstances. This includes dismissal, various forms of resolution, investigation and referral to a hearing.

CPSA is a learning organization and when possible, we work with regulated members to resolve issues, so their practice and patient outcomes can be improved going forward. For CPSA to refer a complaint to a disciplinary hearing, it must be in the interest of public safety, and there must be sufficient evidence to meet the charging standard (the test CPSA applies to determine whether there is enough evidence to charge someone with unprofessional conduct in a formal hearing setting). This helps ensure hearings are reserved for the most serious complaints, where a physician’s conduct may be significantly in question and there may be a risk to the public.

The charging standard is met when there is sufficient evidence from an investigation to reasonably find that:

1. The physician’s actions may constitute unprofessional conduct, and
2. A formal hearing is the balanced and necessary step required to determine responsibility and, if applicable, sanctions.

This balances two important principles:

• Public protection. Every complaint is considered through a lens of ensuring the public is protected. Serious allegations of unprofessional conduct are referred to a hearing for a transparent and impartial review.
• Fairness to physicians. A complaint will proceed to a hearing only when warranted and substantiated by evidence.

The Complaints Director will refer a complaint to a disciplinary hearing if the evidence reasonably supports that the physician engaged in unprofessional conduct, as defined under the Health Professions Act, RSA 2000, c H-7 (HPA). Under the HPA, unprofessional conduct is defined broadly, to include a range of actions. For example:

• A lack of knowledge, skill or judgment in providing professional services.
• Contravening the HPA, a code of ethics or a CPSA standard of practice.
• Failing or refusing to cooperate with investigators, inspectors or competence reviews.
• Misrepresenting a physician’s registration or practice permit status.
• Breaching conditions of a practice permit, settlement agreement or an order of a Hearing Tribunal.
• Conduct that harms the integrity of the medical profession.

The Complaints Director must be satisfied that the physician’s actions fall within one or more of these statutory definitions of unprofessional conduct. The ultimate determination of whether unprofessional conduct has occurred rests with a Hearing Tribunal.

The role of a Hearing Tribunal

While the Complaints Director decides to refer a complaint to a formal hearing, determining whether a physician is ultimately guilty of unprofessional conduct is the responsibility of an independent Hearing Tribunal.

Hearing tribunals are comprised of an equal number of physicians and members of the public. Tribunal members carefully review all the evidence, hear testimony and after weighing everything presented by both the Complaints Director and the physician, make decisions according to the law and the HPA.

If a tribunal finds a physician guilty of unprofessional conduct, it will also determine appropriate sanctions.

Possible sanctions

Sanctions that can be imposed by a Hearing Tribunal after a finding of unprofessional conduct are set out under section 82 of the HPA. These may include:

• Restrictions on the physician’s practice (for example, requiring a chaperone or limiting patient numbers).
• Suspension or cancellation of a practice permit.
• Monetary fines.
• Mandatory training, a review of the physician’s medical practice, or an assessment of the physician’s fitness to practise medicine.

Transparency and public access

To promote accountability, CPSA hearings are generally held virtually and are open to the public. Anyone interested in attending must pre-register with CPSA’s Hearings Director’s Office. Find out more about attending a hearing.

For more information on CPSA’s hearings process and what our regulated members can expect as part of the hearings process, we encourage you to visit our website and review our publication, Hearing Tribunals: What to expect.