In a recent decision, the Health Professions Appeal and Review Board (HPARB) confirmed an earlier decision of the Inquiries, Complaints and Reports Committee (Committee) of the College of Physicians and Surgeons of Ontario (CPSO). The Committee had cautioned a physician about a) failing to communicate and behave appropriately and b) failing to maintain boundaries with a patient with disabilities.

The Doctor-Patient Relationship

The physician in question had treated the patient for over twenty-five years. The patient was now sixty-eight years of age. She suffered from developmental disabilities, significant hearing loss, and communication deficits. She had been institutionalized since childhood. She was a resident in a community group home for adults with developmental disabilities at the time of the relevant incidents.

Two Incidents of Complaint

December 15, 2016

The physician saw the patient because she felt unwell and was losing her voice. The home worker who accompanied the patient on this visit reported to her supervisor that the physician:

  • Told the patient to hit him and punch him in the arm, which made the patient agitated;
  • Punched the patient in the leg while walking by her to get supplies, causing the patient to yell, “Ow!”
  •  “Shoved” the tongue depressor into the patient’s mouth when the patient refused to open her mouth to let the physician look at her throat;  and
  • Told the home worker that the patient was “spoiled”.

The home worker reported that when the patient got home, she became very upset and was crying. After about 30-40 minutes the staff was able to calm her down.

January 12, 2017

The physician met with the patient’s home supervisor to sign the patient’s PRN protocol and to discuss her care plan. The home supervisor reported that the physician told her that staff “coddle” the patient, and that she is a spoiled “witch” or “bitch” (the home supervisor was unsure which word he used).

College Complaint

A complaint to the CPSO was made on the patient’s behalf by the community group home. They suggested that the physician’s behaviour was unprofessional in that he:

  • Displayed disrespectful, degrading commentary and behaviour toward the patient;
  • Conducted his examination in an aggressive manner by forcing a tongue depressor in the patient’s mouth when she refused to open her mouth; and
  • Punched the patient in the leg.

The Physician’s Response

The physician replied that he had known the patient for a long time and had developed strategies in order to be able to properly examine and treat her. His techniques involved distraction and humour. He denied punching the patient’s leg, shoving a tongue depressor into her mouth, and calling her a witch or a bitch. He explained the “spoiled” comment as being a compliment to the care provided to her compared to his experiences elsewhere.

He did accept that, to an outsider, his behaviour might appear odd, but denied that anything he did was improper or unprofessional.

Withdrawal of Care

Three days after receiving notice of the complaint, the physician wrote in her chart “no further appts. for now”. He denied a termination of the physician-patient relationship. He explained that he had received advice from the College to refrain from seeing the patient until the investigation was complete. As a result the patient was without a physician from that time forward.

Inquiries, Complaints and Reports Decision

The Committee could not make findings of fact concerning the incidents in dispute. They did, however, find that what was undisputed amounted to a concerning pattern of inappropriate behaviour and language. They were also concerned that the physician appeared to be oblivious to how others would perceive his actions. These findings were supported by two previous complaints concerning the physician’s communication style after which he had been cautioned or issued a statement of expectations.

As a result, the Committee issued a caution in person regarding his communication style and his inappropriate boundaries with a patient suffering from a disability. It also directed the physician to complete a specified continuing education or remediation program (SCERP) consisting of group courses in ethics and understanding boundaries and managing risks inherent in the physician-patient relationship, and one-on-one coaching on communications and treating adult patients with severe intellectual and developmental disabilities

The Committee also felt that if the physician could not, or would not, see the patient, he should have terminated the relationship properly.  As a result, the Committee also required the Applicant to complete a SCERP in which he would review the College’s policy #2-17: Ending the Physician-Patient Relationship,  and write a report for the College summarizing the policy with reference to current standards of practice, how those standards apply in the Applicant’s situation, and how the Applicant has made or plans to make changes to his practice.

HPARB Review

​The physician requested a review of the Committee’s decision before the HPARB.

HPARB was satisfied with the adequacy of the College’s investigation. It further felt that the disposition in respect of the complaints was reasonable and supported by the record.The Board, however, directed the Committee to reconsider its decision requiring the physician to undergo specified continuing education on terminating the physician-patient relationship, as it did not find any support for it in the record. The decision had been based on a belief that the physician had acted based on his lawyer’s advice when the record showed he had always maintained that he had followed the advice given to him by the College through the physician advisory service.

At Wise Health Law we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through the often-overwhelming discipline and potential further litigation or appeal process. We represent a wide range of regulated health professionals. To find out more about how we can help, contact us online, or at 416-915-4234 for a consultation.

 

Inquiries

At Wise Health Law, we restrict and focus our practice on our areas of expertise. We welcome referrals from other lawyers. We take seriously the responsibility to provide the highest standard of service on matters entrusted to us, and respect the relationship between the client and the referring lawyer.