Most complaints to the College of Physicians and Surgeons (“CPSO”) are made because patients want to ensure that the same medical mistake that they were subjected to doesn’t happen to someone else. Investigations led by the Inquiries, Complaints & Reports Committee (“ICRC”) at the CPSO can help patients get the medical answers they are looking for and re-assurance that the doctor will strive not to let it happen again. However, there has been some public criticism that there has been a lack of transparency by the ICRC at the CPSO about its findings with “secret” warnings to doctors about poor care. It was felt that the CPSO was intent on putting the privacy of doctors above the protection of the public.
More than 18 months after OTLA made submissions to the CPSO about the need for increased transparency, the Regulators for doctors are seeking to amend its by-laws at a council meeting this week (May 28, 2015). The changes, if approved, will require public disclosure of significant ICRC findings or criminal charges against doctors. In particular, for any complaint or investigation started on or after January 1, 2015, the CPSO will make public information it has regarding:
- Criminal charges laid against a doctor;
- A decision of the ICRC to caution a doctor in person (in-person caution);
- A decision of the ICRC mandating remedial education (“SERCP”);
- Licences in other jurisdictions; and
- Whether a doctor has been disciplined in another jurisdiction.
If approved, the CPSO will begin posting a summary of ICRC decisions where an in-person caution or SERCP was ordered against a doctor. Without these changes, the public would only become aware of a doctor’s bad care if the doctor was the subject of disciplinary action by the CPSO (including public hearings of the Discipline Committee).
An in-person caution requires the doctor, after a finding of poor care (for example), to attend at the College and be cautioned about what went wrong, why it went wrong, and how to remedy their conduct for future patients. Likewise, remedial education (issued through Specified Continuing Education and Remediation Programs) is meant to educate the doctor on proper care for the safety of future patients. The intent behind these remedial measures is aimed at public safety to ensure that the offending doctor understands what went wrong and how to remedy or avoid future problems.
Some have suggested that public disclosure of the ICRC decisions about remedial measures imposed on doctors elevates the ICRC findings to be punitive in nature. Others, however, view the changes as not punitive but rather mandating accountability. Those resisting the proposed changes fail to recognize the need for accountability when things go wrong as a key component to ensuring public safety. Being accountable for mistakes is critical for quality improvement.
Accountability cannot be achieved without transparency.
Indeed, it could be said that the new disclosure requirements do not go far enough. The CPSO itself suggests that only 8% of complaints made about doctors result in a decision to impose remedial education or an in-person caution. The new disclosure requirements would not cover those situations where a doctor’s care has been found, after investigation, to fall below the standard of care that was expected but yet only receives a written caution. A written caution, it would seem, is not viewed as a sufficiently significant finding of the ICRC. Perhaps there is still a balancing act going on at the CPSO between full disclosure and doctor’s privacy.
The CPSO suggests that the ICRC decisions not being disclosed led to intense media scrutiny in 2013 with concerns over lack of transparency. With the changes expected to be approved, some argue that CPSO has capitulated to the media. Regardless, there appears to be an acknowledgement that public safety should be paramount. These changes are a step in the right direction. Whether it is the result of public pressure or otherwise, enhanced transparency will lead to more public accountability, and will hopefully save lives.
Barbara A. MacFarlane is an OTLA Director (Chair of Women’s Trial Lawyers’ Caucus) and a partner and head of the Personal Injury Group at Torkin Manes, LLP.