The Health Professions Appeal and Review Board (the “Board”) reviewed a decision of the Inquiries, Complaints and Reports Committee (the “Committee”) of the College of Physicians and Surgeons arising from a doctor giving a patient a vaccination for hepatitis B even though she already had hepatitis B, in order to “appease her” and “ease her stress”. The Committee’s decision was to provide advice to the doctor and to accept a remedial agreement requiring the doctor to engage in self-study. The patient sought a review of this decision.
The patient first saw the doctor for a physical examination and blood tests. She was planning on travelling to Iraq. The doctor conducted a hepatitis B surface antibody test, which came back negative.
Upon her return a year later, the patient came to the doctor’s clinic and indicated that her regular family doctor had diagnosed her with hepatitis B and she wanted the hepatitis B vaccine. Her regular family doctor had ordered the vaccine from public health but had not received it yet.
The doctor ordered another hepatitis B surface test, but this time also ordered an antibody hepatitis B core antigen test. Both tests confirmed that the patient had hepatitis B. The patient was very upset and asked again for the vaccination. The doctor acquiesced and gave her the vaccination “at her insistence and recurring request during a time when she experienced stress”. The doctor explained that the injection “was given to ease her stress and thereby ensuring her satisfaction”.
The patient complained about the care and information that the doctor provided her on her visits.
The Committee and Board Decisions
The Committee had determined that the doctor did not appropriately investigate the patient’s hepatitis status when he first saw her. Given that the patient was from a country of “moderate endemic risk,” the Committee found that the doctor should have ordered a hepatitis B antigen test, noting that it is important to diagnose patients who are asymptomatic, yet are still carriers of hepatitis B. The Committee also had concerns about the patient’s second visit. This time the doctor ordered the appropriate test, which confirmed the patient had hepatitis B, but he also provided her with a vaccination although she already had the disease.
The Committee was concerned that the doctor was not aware that the “vaccine would be ineffective and/or that he inappropriately acquiesced to patient demands”. He should have refused to provide it and documented the reason in the record. The doctor should also have contacted her regular family doctor after the patient told him that the family doctor was going to vaccinate her.
The Committee’s ultimate conclusion was to advise the doctor not to provide a vaccine to a patient who is positive for hepatitis B in order to appease them, and to accept a remedial agreement which required the doctor to engage in self-study, with a follow-up in three months to ensure that the education on hepatitis B was effective.
In considering the reasonableness of a decision by the Committee, the question for the Board was not whether it would arrive at the same decision as the Committee, but whether the Committee’s decision can reasonably be supported by the information before it and can withstand a somewhat probing examination. The Board is required to consider whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.
The Board found the Committee’s conclusions to be reasonable and supported by the record. Providing “advice” is designed to offer guidance to a doctor in an area of practice in which the Committee has noted concerns and to assist the doctor in future practice. The “remedial agreement” offers guidance in focused education for a doctor whom the Committee believes would benefit from further education and for whom there is no information to suggest that the concerns are not capable of remedial agreement.
Here, the doctor acknowledged the need for education and was willing to improve his practice. While the patient argued that the advice and requiring him to complete further education was “akin to promoting him”, the Board concluded that the decision was within the range of outcomes available to the Committee and together serve to protect the public interest.
The doctor managed his interaction with this patient poorly, but giving a vaccination that would have no benefit. However, he managed the complaint well, by acknowledging the Committee’s concern and the need for further education and review, and by proposing to enter into a remedial agreement, thereby avoiding a more punitive disposition such as a caution or a Specified Continuing Education and Remediation Program (a SCERP).
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