ALBERTA, CANADA
COMPLAINTS, DISCIPLINE AND THE HPA
Alternate Complaint Resolution
During the next 12–18 months, the medical profession will move from under the authority of the Medical Profession Act (MPA) to the Health Professions Act (HPA) – a new omnibus legislation for all health professions. Prior to being implemented, the act will go through various stakeholder review processes and must be approved by the Alberta legislature.
When the College of Physicians and Surgeons of Alberta begins to operate under the HPA, a number of changes to its complaints process will occur. Under the Health Professions Act (HPA), when a complaint cannot be dismissed or easily resolved, there are only two options available:
Alternate Complaint Resolution (ACR)
Formal Investigation
“Formal Investigation” is the term used to describe the process of gathering and reviewing information prior to referring the complaint to a Hearing Tribunal. The process for formal investigations and hearing tribunals is quite detailed and will be explained in a future article of The Messenger newsletter.
In Alternative Complaint Resolution (ACR), the parties communicate to make their own decisions, either directly or indirectly through an independent third party. The process moves participants from adversaries to joint problem solvers, resulting in an outcome that is acceptable to all parties involved. The outcome of a successful ACR process is a win/win situation.
The ACR process used by the College will involve three parties: the complainant, the physician and a College representative, who will represent the interests of the public. The College anticipates using a variety of ACR approaches, including:
Negotiation: Parties communicate with each other directly to identify issues and solve the problem.
Mediation: A neutral individual, trained in the mediation process, facilitates a discussion between parties to help them find a solution. A skilled mediator or negotiator can help parties find common ground, separate people from the problem, and shift the focus of discussion from blame to accountability and acceptance.
What does this mean to physicians?
There will be an opportunity to resolve complaints directly with the complainant.
The physician involved will be an active participant at the table, allowing him/her to maintain some control over the process.
The process is confidential. With the exception of the ratified settlement and reports prepared by an expert, anything that transpires within the ACR process is confidential and not admissible in any other proceedings, including College Hearings or matters proceeding before a court, without written consent from both the physician and the complainant.
The complainant is an equal player at the table and agreement of all three parties is required for the matter to be considered resolved. When an agreement cannot be reached, the complaint is referred to the Complaint Director (an employee of the CPSA) who may dismiss or order an investigation.
Complaint Investigations
Under the Health Professions Act, the term “investigation” is used distinctly by the HPA to designate the process of gathering information in reviewing a complaint. On receipt of a complaint, the Complaints Director (CD) has a variety of options, including:
Dismiss the complaint because it is trivial or vexatious, or because there is no or insufficient evidence of unbecoming conduct.
Refer the matter directly to the complainant and the physician to work out between themselves.
Refer the matter for investigation (this process is very much like the College’s present complaint inquiry where information – documents and records, and responses from other caregivers – is gathered).
The HPA requires that the CD appoint an investigator (who may be the CD) and inform the complainant and physician of the name of the investigator. The investigator is given broad powers to gather information (e.g., documents and records) and interview involved parties (including under oath). As with the current process, the physician(s) complained about will be notified about the complaint and provided a copy of the letter of complaint. The practitioner(s) will be asked to reply to the identified issues, and, in most situations, to provide a copy of the medical records pertaining to this matter. Physicians may seek legal assistance to respond to the complaint. Other physicians and other caregivers may be asked to provide information to help the College in its understanding and review of the complaint.
During the investigation, the investigator may request an expert opinion. In addition, while the investigation is underway, the Complaints Director may elect to refer the matter to an ACR process resulting in suspension of the investigation until the ACR is complete.
Upon completion of the investigation, the investigator writes a report to the CD. Assuming that ACR has not occurred or has been unsuccessful, the CD has only two choices at this stage:
Dismiss the complaint (as trivial or vexatious, or for lack of evidence of unprofessional conduct).
Send the matter to formal hearing before a Hearing Tribunal (a disciplinary hearing).
Should the Complaints Director dismiss the complaint, the complainant can appeal the decision within 30 days to the Complaints Review Committee. (Both the hearing process and the appeal process will be the subjects in future issues of The Messenger.)
So while the terminology changes, the process of investigation under the HPA is generally very similar to our current complaint inquiry. The major changes include:
ACR is an option during the course of investigation and causes suspension of investigation until ACR is complete.
The options at the completion of investigation are limited – dismissal of the complaint or refer to a Hearing Tribunal (disciplinary hearing).
And finally, the College is considering making it policy to release the physician’s response to the complaint directly to the complainant, as do most other Colleges in Canada. This would be a significant change from current practice – the College only releases the physician’s letter of response with the physician’s consent or at the time of appeal.
The College views the ACR provisions of the HPA as a significant opportunity to resolve complaints informally and will be encouraging its members to consider ACR where appropriate. The College’s basic approach to complaint handling will not change substantially when we move to the HPA. Undoubtedly, with a new process and new terminology there will be some challenges for our members and us. Your thoughts and feedback are welcome.
REGIONAL TOUR CONCEPT SUCCESSFUL
With visits to four of Alberta’s nine health regions complete, feedback on the CPSA 2004 Regional Tour has been very positive.
The main purpose of the regional tours is to put a “face” to the College and to create an opportunity for CPSA Council members and staff to hear physicians’ questions, concerns and suggestions in person. The tour also helps promote the overall roles and responsibilities of the College. Council President Dr. Gordon Arnett leads the College contingent and is usually accompanied by Dr. Bob Burns and at least one of the assistant registrars. During each visit, Dr. Arnett makes a brief presentation on key College issues and then opens the floor to questions.
To date, the tour has stopped in Camrose, Grand Prairie, Red Deer and Medicine Hat with presentations to Calgary, Edmonton, Lethbridge, Fort McMurray and Westlock planned for the fall. More than 100 physicians have attended the meetings and the following survey results indicate the regional tour concept has been well received.
If you have questions about the Regional Tours, please contact Kelly Eby, CPSA Communications, at [email protected] or by calling (800) 360-8624, ext. 683.
INSURANCE ACT — NEW REGULATIONS
On Oct. 1, 2004, the Government of Alberta will implement new regulations under the Insurance Act which include protocols for the diagnosis and treatment of certain injuries arising from motor vehicle collisions. Those injuries are sprains, strains and whiplash associated disorders (WAD injuries).
The College is currently working with government to create information specific to medical practice that will explain the roles and responsibilities of physicians under this new legislation. All physicians who currently see patients with these injuries will be entitled to continue doing so. However, those physicians will be expected to advise their patients in accordance with the legislation’s diagnostic and treatment protocols and to submit information to their patient’s insurer in a prescribed format. Physicians can expect to be remunerated for the additional reporting requirements.
In addition, members of the medical, physiotherapy and chiropractic professions are entitled to apply to become Injury Management Consultants who support primary providers of care (physicians, physiotherapists, and chiropractors) in treating patients with these injuries.
An additional category of expert created under this legislation is that of Certified Examiner, a physician not involved in the patient’s care but who is available to provide an independent medical opinion as to the classification of these injuries upon referral from the insurer.
Physicians can expect information from government about these new regulations to be circulated by mid September. Physicians can also expect information from the College about applying to become an Injury Management Consultant or a Certified Examiner by early October. For a copy of the new regulations, please go to the government’s website at: www.autoinsurance.gov.ab.ca.
Reprinted from issue 112 and 113 of The Messenger, published by the College of Physicians and Surgeons of Alberta.
BRITISH COLUMBIA, CANADA
THE TRIPLICATE PRESCRIPTION PROGRAM
As the members of the profession are aware, since the introduction of the PharmaNet system the title of this program has been inaccurate. It was a good descriptive title for the original Triplicate Program that was introduced in 1990, at which time three copies of the prescription were generated: one for the pharmacist, one for the data entry clerks who manually processed these forms, and one copy to be retained by the physician for his or her clinical records. With the introduction of PharmaNet, the triplicate prescription pad needed adjustment and a recent requirement for a new printing has given an opportunity for change.
The Council of the College has directed the Program should be renamed the Controlled Prescription Program, with the pad being re-designated the Duplicate Prescription Form. In addition, it has long been recognized the list of drugs within the inside cover of the prescription pad, which was simply an aide memoire, was inaccurate and, with the introduction of a number of new opioids, it is impossible for a comprehensive list to be printed in the pad.
The Advisory Committee on Prescription Review (ACPR) has directed a new generic list be developed for inclusion inside the pad cover, with the understanding that this still remains an aide memoire and therefore subject to change, and a more comprehensive list must be added to the College website. This list will include all of the current opioids that are covered by the Controlled Prescription Program, and both the generic and trade names will be listed.
It is recognized it will be a challenge to ensure this list is completely current and the College has asked the College of Pharmacists and PharmaCare to assist with this task. The College would welcome any comments from the profession with regard to the format and accuracy of this list. Suggestions for change will be taken to the ACPR for review and consideration.
In summary, the program is now known as the Controlled Prescription program and the pad will be known as the Duplicate Pad, with the drugs that are covered by the Program appearing on the College website.
CONTROLLED PRESCRIPTION PROGRAM — METHYLPHENIDATE
At the request of the Department of Psychiatry, UBC, the members of the Advisory Committee on Prescription Review and Council reviewed the need for continued inclusion of methylphenidate in the Controlled Prescription Program. At the time of the introduction of the Triplicate Prescription Program, “Ritalin and Talwin” were sought in combination on the street for intravenous injection so that the diversion of prescribed methylphenidate became a problem in the province. Methylphenidate was therefore included in the Triplicate Prescription Program list of drugs.
The College is advised methylphenidate is no longer a drug that is freely sought for diversion, although diversion still occurs on occasion, and the illicit use of this drug is no longer the social problem that existed when Ritalin was added to the Triplicate Program. As members of the College may recall, methylphenidate was the subject of a review performed by the College Drug Programs a few years ago and the expert advice that the College received following that review was that the use of this drug in the province was appropriate.
Based upon the expert advice the College received from the University Department of Psychiatry, and recognizing the other most frequently prescribed stimulant drug, dextroamphetamine, is not a Controlled Prescription drug, the members of the Advisory Committee on Prescription Review made a recommendation to the executive committee and council to remove methylphenidate from the Controlled Prescription Program.
Council accepted the recommendation. A duplicate prescription is no longer required for methylphenidate.
TOWARD THE SAFE DISCLOSURE OF MEDICAL ERROR
The Education Day, held in conjunction with the Annual General Meeting of the College Sept. 24, 2004, sought to examine the impediments members perceive to disclosing and reporting medical error, and to consider remedies, if those perceptions were valid. Dr. Philip Hébert, the keynote speaker, outlined the experiences reported from other countries exploring medical error and patient safety. He compared those with the findings from the recently published Canadian Adverse Events Study (CAES). The Canadian data were similar to those reported from the United Kingdom, New Zealand and Australia. American studies had had different objectives and the methodologies used precluded valid comparison with the CAES. Dr. Hébert defined the core issues that make care risky for patients, as the terrible things we must do to our patients who are already ill; our need to rely on antiquated technology; and our failure to learn from experience. He described initiatives in place toward improvement.
In the past, a shame and blame point of view has led to concealment of error, emotional upheaval in physicians, loss of trust by patients, and striking increases in risks of unwanted consequences for physicians, both professionally and legally. That milieu is now being set aside as a “Culture of Safety” is being nurtured at every level, one that recognizes adverse events and errors are usually multifactorial and consequent to system failure, and the safety for the physician is generally enhanced if disclosure is timely and clear, particularly when a foundation of trust has been previously laid through adequate dialogue between physician and patient. Removing fear of disclosure and creating a non-punitive environment is fundamental to the process of improving patient safety.
Dr. Hébert considered trust to be at the core of the ethical imperatives in disclosure by physicians. Patients trust physicians will serve and protect them as it is their fiduciary responsibility. Trust is gained in an atmosphere of honesty, openness and mutual respect, and is much more likely to be violated by attitude than by error. In particular, trust will be lost with a failure to disclose and, with that loss will go authority and legitimacy. Trust, once lost, is hard to regain and, if lost, consequences are almost inevitable.
Dr. Galt Wilson brought his thoughts from the “coalface” of practice in Prince George. He emphasized the discrepancy between patients’ expectations of our knowledge and problem-solving skills and of the power and safety of medicine, on the one hand, and what we know to be the truth, on the other. Still, physicians try to leap those limitations and compulsively seek solutions, often with inevitable futility. Further, we too seldom convey to our patients our deep commitment, and the guilt and grief we feel when we fail, through error or otherwise. Specialists, in particular, need to remember that “you can only make a first impression once.”
Ms. Margaret Ross, general counsel, Canadian Medical Protective Association (CMPA), extended the discussion on ethical obligations by citing the August 2004 revision of the CMA Code of Ethics s.14: “Take all reasonable steps to prevent harm to patients; should harm occur, disclose it to the patient.”
Ms. Ross prefaced her exposition of legal obligations with a reminder that preventable adverse events do not equate with negligence. Accidental slips do not speak of negligence in the context of a reasonable degree of care being applied by a normally skillful member of the profession. She provided a case report that vividly conveyed that a medical error in itself might bring little or no consequence, while the failure to disclose the error can indeed have harsh repercussions, both in the court and with the College. Ms. Ross conveyed the CMPA’s general direction to its members to disclose to the patient or substitute decision-maker, the facts of adverse outcomes (to the extent that they are known), along with any available remedies, as soon as reasonably practical. The practicalities for applying that guideline were detailed and are available to members through the CMPA website (or through direct consultation with the CMPA office).
Dr. John Shepherd, vice president, Clinical Quality and Patient Safety, Vancouver Coastal Health, described processes planned and in place in his health authority and evolving with other health authorities, especially through the B.C. Patient Safety Task Force.
He viewed disclosure as holding particular value for patients and their families (and so, ultimately, the institution), displaying transparency of the processes in place to address current and future needs of that patient and, ultimately, of those patients who will follow. It is recognized that any policies mandating disclosure must be designed to be seen as primarily advisory and supportive of medical staff.
Dr. Morris VanAndel, registrar, reviewed the regulatory processes of the College, particularly as those relate to complaints and discipline, and thus for reports of medical error, especially where there has been consequent harm to the patient. The College’s complaint processes are designed to justly address the expressed concerns of complainants (be those patients, physicians, or other legitimately concerned parties). In the vast majority of instances, when a complaint is viewed as valid or partially valid, that goal is met, to the general satisfaction and benefit of all, through educational and remedial measures alone. Those interventions are always offered in a collegial framework, although they are not necessarily viewed as such by the member.
He explained only about one percent of complaints rise to the level of disciplinary action. Virtually all of those actions have related to conduct violations. In the past 12 years, no case has come to discipline on the grounds of medical error alone, whereas disingenuous attempts by members to minimize or conceal medical error have. Dr. VanAndel concluded, therefore, that there was no need to modify College processes to foster disclosure and reporting of medical error. Rather, members need to be made aware that impediments to disclosure are only perceived. The consequences of failure to disclose, on the other hand, can be inferred from the cases described. Copies of the sessions in either DVD or VHS format may be borrowed from the College Library.
Reprinted from the Fall 2004 issue of College Quarterly, published by the College of Physicians and Surgeons of British Columbia.
MANITOBA, CANADA
PHYSICIAN PROFILES
In 1994, following 12 baby deaths in the Paediatric Cardiac Surgery Unit at the Health Sciences Centre in Winnipeg, Mr. Justice Murray Sinclair conducted an inquiry into the circumstances surrounding the deaths. The inquest report was released November 2000, and contained 36 recommendations. Paul Thomas, professor of political science at the University of Manitoba, was then given four months to devise a plan to implement those recommendations.
The Thomas Report was released May 2001. Two of the recommendations contained in the report were:
The Review Committee endorses the development and publication of physician profiles that balance the public’s right to know with protection against unfair damage to the reputations of physicians.
The Review Committee recommends the College of Physicians and Surgeons of Manitoba work with Manitoba Health and other interested groups to develop a system of “physician profiles” describing the education, experience, training, awards, disciplinary history and other information deemed relevant for each physician practicing in Manitoba. In the context and format for physician profiles, a balance must be found between the public’s right to know and easy access to information with the right of physicians to a measure of privacy and to an accurate, balanced and fair interpretation of their history of medical practice.
A commitment was thereafter made by the Minister of Health to ensure that these recommendations would be implemented, and in August 2002, the Government enacted amendments to The Medical Act, giving the College the authority to develop and publicize physician profiles.
In early 2002, Manitoba Health established a Physician Profiles Steering Committee to make recommendations regarding the implementation of a physician profiles system for Manitoba, including recommendations respecting the categories of information to be included in physician profiles. This Committee was constituted of representatives of the College, the Manitoba Medical Association, Manitoba Health, the Regional Health Authorities Council of Board Chairs, the Coalition for Improved Access to Physician Practice Information and a representative of the public. The Steering Committee provided its report to the government in November 2003, and the government has now announced its intention to make physician profiles available to the public in the future.
Much of the information to be included in physician profiles is already accessible by the public from a variety of sources. While responsibility for the maintenance and day to day operation of the physician profiles system will rest with the College, the government has agreed to be responsible for all costs associated with the implementation and maintenance of the profiles system.
The public will be able to access physician profile information either online or by telephone. The profiles will also serve as a source of information for physicians, such as for the purpose of assisting primary care physicians in making referrals to specialists. The College will provide more detailed information regarding physician profiles, including the responsibilities of physicians in reporting and verifying profile information, to the profession in the future.
Reprinted from the Volume 40 Number 2 issue of The Newsletter, posted on the College of Physicians and Surgeons of Manitoba website.
NOVA SCOTIA, CANADA
NSPAR TO LAUNCH IN EARLY 2005
The Nova Scotia Physician Achievement Review (NSPAR) will be launched in early 2005. NSPAR is a program of performance review and feedback that provides physicians with confidential information about their medical practice through the eyes of their medical colleagues, co-workers and patients. The program also includes a self-assessment component that is completed by the participating physician. This feedback is then presented to the physician in the form of a confidential report, providing information both on an individual basis as well as in comparison to aggregate data.
The NSPAR program will have a seven-year assessment cycle — each family practitioner in Nova Scotia will participate in an NSPAR assessment at some point within the next seven years, and at regular seven-year intervals thereafter. NSPAR participants (approximately 120 randomly selected family physicians per year) will receive an assessment kit containing a set of simple instructions, an instructional video and the necessary tools and surveys. NSPAR uses essentially the same methodology as the highly regarded PAR Program of the College of Physicians and Surgeons of Alberta, which has been in operation since 1998. Efforts are underway to create NSPAR assessment tools for medical specialties. Members will be informed as these efforts proceed.
Neither the College, patients nor the physician will be able to use NSPAR findings or reports in a complaint or legal proceeding. Data collection and report generation will be handled at arm’s length from the College by Customer Information Systems (CIS), an independent research firm in Edmonton.
NSPAR reports falling outside certain preset thresholds will be flagged for follow up by a trained practicing physician using a structured interview format to better understand the results of the report. It is estimated approximately five to 10 percent of physician reports will be flagged in this way. Nevertheless, the College regards NSPAR as a professional development tool first and foremost. NSPAR findings and reports will not be admissible as evidence in College complaints or legal proceedings.
All physicians registered with the College will receive comprehensive information on the NSPAR program in January 2005. Physicians who have questions in the meantime are invited to contact Mary Power, NSPAR program manager, by phone at (902) 482-2921, or by email at [email protected].
Reprinted from the College of Physicians and Surgeons of Nova Scotia website.
LET US HEAR FROM YOU
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