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Perspectives 2019: Taivi Lobu

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Unprofessional Behaviour - What Can it Look Like? What are the Consequences?

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Perspectives 2019: Taivi Lobu

  1. 1. 2019 Perspectives Symposium January 31, 2019 #TSINPerspectives2019
  2. 2. Perspectives on Professionalism Unprofessional Behaviour - What Can it Look Like? What are the Consequences? Taivi Lobu JD Vice Chair, Health Professions Appeal & Review Board 31 January 2019
  3. 3. 3 What can unprofessional conduct look like? Who decides what is unprofessional? What are the consequences? Context for determining professional conduct
  4. 4. Professionalism – who determines it? 4 29 Self-regulated health professions in Ontario Health professionals accountable to their regulatory College
  5. 5. 27 Health Regulatory Colleges (26 under the Regulated Health Professions Act plus the College of Veterinarians of Ontario) 5 College of Audiologists and Speech- Language Pathologists of Ontario College of Homeopaths of Ontario College of Optometrists of Ontario College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario College of Kinesiologists of Ontario Ontario College of Pharmacists College of Chiropodists of Ontario College of Massage Therapists of Ontario College of Physicians and Surgeons of Ontario College of Chiropractors of Ontario College of Medical Laboratory Technologists of Ontario College of Physiotherapists of Ontario College of Dental Hygienists of Ontario College of Medical Radiation Technologists of Ontario College of Psychologists of Ontario Royal College of Dental Surgeons of Ontario College of Midwives of Ontario College of Respiratory Therapists of Ontario College of Dental Technologists of Ontario College of Naturopaths of Ontario College of Veterinarians of Ontario College of Denturists of Ontario College of Occupational Therapists of Ontario College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario College of Dietitians of Ontario College of Nurses of Ontario College of Opticians of Ontario
  6. 6. Professional Standards – where are they found? 6 Regulated Health Professions Act (schedule 2 - Health Professions Procedural Code) Profession’s legislation Occupational Therapy Act, Medicine Act, Nursing Act, Massage Therapy Act, Dentistry Act, etc. Include – Profession’s Registration & Misconduct RegulationsWritten & Unwritten “professional standards”
  7. 7. Professional standards – legislative context 7 Regulated Health Professions Act – s. 3 Duty of Minister of Health to ensure that: the health professions are regulated and co-ordinated in the public interest, appropriate standards of practice are developed and maintained, individuals have access to services provided by the health professions of their choice, individuals are treated with sensitivity and respect in their dealings with health professionals Health Professions Procedural Code (Schedule 2 of Regulated Health Professions Act & part of all health professional legislation ): section 3(1) - duty of regulatory College to establish and maintain standards of practice and ethics for the profession section 3(2) duty of regulatory College to serve and protect the public interest Regulations (registration/misconduct regs) – are the legal standards for entry into the profession or determining if a member should be subject to remedial or disciplinary action
  8. 8. Profession standards – when are they considered? 8 Applying to College membership - Good conduct requirements in College’s Registration Regulations - Appeal College decision to HPARB - decisions of HPARB & Courts on CanLII.org Referral to Discipline Hearing - can lose right to practice profession - can appeal to Court - Summaries in profession’s publication - College Discipline Committee decisions on CanLII.org Complaints to regulatory College - Investigation - No action, remedial action or referral for Discipline Hearing - Can appeal to HPARB - HPARB’s Complaint Review decisions on CanLII.org
  9. 9. Professionalism – good character - sample requirement for registration 9 CPSO – Medicine Act – Registration Regulation 2. (1) …the applicant’s past and present conduct afford reasonable grounds for belief that the applicant, …. (b) will practise medicine with decency, integrity and honesty and in accordance with the law… (d) can communicate effectively and will display an appropriately professional attitude.
  10. 10. Gatekeeping role of College Chauhan v. Health Professions Appeal and Review Board and the College of Physicians and Surgeons of Ontario, 2013 ONSC 1621 (CanLII) 10 - serious criminal charges pending against registration applicant in criminal justice system - presumption of innocence in registration applications? - In health professional regulation – public interest - Onus on applicant to demonstrate good character
  11. 11. Gatekeeping role of College 11 Criminal Law standard - An individual in society Professional Standard - An individual in a profession
  12. 12. Professionalism requirements when entering the profession … 12 - Pilecki v College of Optometrists of Ontario, 2015 CanLII 92317 - Registration applicant had been found not guilty of possession & distribution of child pornography - criminal law requires proof beyond a reasonable doubt. - Registration Regulation – specified no criminal convictions but no general good character requirement
  13. 13. J.S. v College of Physicians and Surgeons of Ontario, 2017 CanLII 46108 (ON 13 incorrect answers on application form - “have you withdrawn or resigned from a postgraduate medical training program” – checked “No” - Intention to mislead?
  14. 14. Where personal & professional intersect – social media & professionalism 14 B. R. v M. M., 2019 CanLII 897 (ON HPARB), (College of Massage Therapists of Ontario) - Member – RMT - maintained blog in which he attacked the use of concepts such as chi and meridian lines, and practices such as acupuncture, Ayurvedic medicine – use of vitriolic language. - Member said this was a personal blog, not part of his RMT practice, and that his writing style was within the culture of blogging - Decided - Duty as a regulated health care professional “to maintain a professional attitude in all of his communications even when providing a critique of certain methods of practice and to demonstrate appropriate respect for professional colleagues.”
  15. 15. Identifying & Applying standards for professionalism 15 M.K. v J.K., 2019 CanLII 1735 (ON HPARB) – (College of Denturists) Complaint alleging rude and unprofessional behaviour when complainant sought to make an appointment with the denture clinic. Member responded saying complainant was not his patient – did not disclose that complainant was a patient at the clinic ICRC issued reminders • professional obligation to cooperate with complaint investigation • Patients may view interactions differently from member
  16. 16. Where personal & professional intersect – social media & professionalism 16 Strom v. Saskatchewan Registered Nurses’ Association, 2018 SKQB 110 (CanLII) A nurse, posted comments on Facebook regarding end-of-life care that her grandfather had received at a care facility – professional misconduct? Saskatchewan College – Nurse found guilty at discipline hearing & fined.
  17. 17. Where the personal & professional intersect BS v SN, 2013 CanLII 59515 (ON HPARB) 17 Complainant and RN - long-feuding neighbours – Complainant launched a private prosecution against RN’s family member alleging physical assault. - RN represented his family in court proceedings - contacted neighbour’s physician for medical information for defence. - Neighbour filed complaint with CNO alleging that RN sought medical information without patient consent. - CNO – no action warranted - RN did not disclose or otherwise rely on his professional status when seeking medical information about his neighbour.
  18. 18. Professionalism & Communication issues 18 Complaints process – challenging for ICRC to make determinations about issues pertaining to communications & “he said/she said” scenarios. All complaints become part of conduct history with the College A member’s conduct history (prior complaints etc) must be considered when complaint being addressed (pattern of concerns; unremediated conduct) Health Professions Procedural Code s.26(2)
  19. 19. Professionalism & Communication issues 19 N.K. MD, v. J.C., 2017 CanLII 88 (ON HPARB) Previous concerns of communications raised by other patients – sustained pattern of concerns - Remedial disposition – member required to complete a SCERP – individualized instruction/coaching in communications, seven hours, “focused on breaking bad news to patients and families and ensuring compassionate and empathetic communications at all times.”
  20. 20. Conduct history – communication issues 20 P.C.W. v T.L., 2017 CanLII 86695 (ON HPARB) “no question that other individuals who have sought medical care from the Applicant have experienced concerns with the Applicant’s communications and procedures to the extent of filing complaints with the College.” “when considered as a whole, the Applicant’s complaint history supports a decision to require remedial action related to patient relations.”
  21. 21. Professionalism – patient-centered care P.C.W. v E.D., 2017 CanLII 86707 (ON HPARB) Rules & Procedures v. Patient Care • Member cautioned regarding “very confrontational mode of communication with patients” • “emphasis was on rules and procedures and the formal requirements of the practice rather than medical care and the needs of patients.” 21
  22. 22. Identifying & Applying standards for professionalism Corporate structures v. Client care 22 R.D. v S.K., 2017 CanLII 65227 (ON HPARB) - pharmacist Complainant’s daughter hospitalized as result of serious dispensing error made in a pharmacy which was part of a large chain. Regional Pharmacy director (R.Ph) contacted by complainant regarding systemic matters Complaint – telephone call “ a routine pr call” “no empathy or remorse, cold and heartless” Is following corporate policies sufficient?
  23. 23. Complaining about another health professional A Dental Hygienist was terminated from her work at a Dentist’s office. D.M.F. v. L.S., 2010 CanLII 63568 (ON HPARB) Hygienist filed complaint with Dentist’s College about her former employer’s billings and infection control practices The Dentist then filed a complaint with Hygienist’s College alleging that Hygienist acted unprofessionally in making vexatious allegations about him and his staff. 23
  24. 24. Complaining about another health professional D.M.F. v. L.S., 2010 CanLII 63568 (ON HPARB) - broad public interest for health professionals to be able to report concerns about another professional to regulator - Should someone be subjected to professional misconduct (or complaint) proceedings for doing so? 24
  25. 25. Professionalism – gender bias & cultural discrimination in providing couples therapy 25 SM v RE MD, 2013 CanLII 78068 (ON HPARB) Psychiatrist providing couples therapy. Complaint of unprofessional conduct on the part of the psychiatrist included gender bias & cultural discrimination against the complainant - Remarks that the complainant attributed as being made by the psychiatrist “overly familiar” and “indiscreet” - Committee could not determine what was said with certainty – Discipline Referral? - Were elements of the psychiatrist’s practice relating to psychiatric diagnoses, polypharmacy, medical record keeping etc. that founded a requirement for a personal attendance caution. - Plus - advised as to perception of of gender bias when providing couples’ therapy
  26. 26. Resources www.hparb.on.ca 26 for profession-specific regulations: www.ontario.ca/laws (or google “elaws”) – click on health professional legislation (eg., Pharmacy Act, Opticianry Act) click on regulation for cases: Canlii.org - To Ontario, to Tribunals, to Health Professions Appeal & Review Board (complaint review & registration decisions) or individual College (Discipline Committee) decisions General - College websites and publications www.hparb.on.ca

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