The times they are a changin’: Recent developments in Legislation, Case Law and Attitudes Respecting Health Facilities’ Management of Professional Staff Behaviour
Gone are the days where “bad behaviour” by professional people is overlooked or attributed to an eccentric personality, or even the demands of the job. Today, health professionals working in hospitals and other facilities are expected to act in a professional manner at all times, and will be held to account for any behavioural lapse as readily as they would for any other lapse in judgment or standards. “Acting out,” which was once tolerated, if not accepted as part and parcel of certain specialties, is now uniformly viewed as a breach of professional standards and treated as a risk to patients and the profession, often resulting in serious sanctions. This trend is extended to the manner with which offending behaviour is dealt: behaviours, complaints and incidents that previously may have been dealt with quietly, behind closed doors, are now subject to public scrutiny and censure by licensing bodies and institutions alike.
Recent legislative amendments and case law have resulted in attitudinal, cultural and legal changes that many administrators feel are long overdue. However, these developments have also posed challenges and caused concern for health professionals and the administrators tasked with managing trying to manage complaints involving behavioural conduct by physicians and other health professional staff. Managing behavioural issues can be challenging in any environment, but it is particularly so where the alleged offenders are physicians who have legislated protections in connection with hospital appointments, who work in an era of physician shortages, and who are entitled to fairness throughout any discipline or reappointment processes. Understanding the legal climate and ensuring that the institution has appropriate systems, policies and education/training in place is crucial to preventing and managing cases involving disruptive professional behaviour.
Sanctions for Unprofessional Behaviour Penalties Extended to Non-patient Interactions
While the media is filled with patients’ stories of “health professionals gone wild,” a recent decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “College”) demonstrates a lack of patience for any inappropriate conduct, even that which does not occur in the doctor-patient setting.
On November 4, 2011, the College released a decision respecting Dr. E.E. Amer[1], who was found to have “engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.” The incident which led to this decision occurred in April 2008, and did not involve any physician-patient interaction: Dr. Amer was captured on the Hospital’s video surveillance in a confrontation with members of the Hospital’s security staff.
Dr. Amer is a respirologist who, in addition to his office practice, held privileges at the Credit Valley Hospital. Dr. Amer became frustrated when his pass card would not permit him to enter the doctor’s lounge where his belongings were stored. Dr. Amer called the security office to come and open the door for him. Finding the security guard’s response to be unsatisfactory, he attended personally at the security office, but was forced to wait some time for assistance. Growing increasingly frustrated with the security guards and at the thought of a waiting room full of patients back at his office, Dr. Amer banged at the security door and ultimately broke the door frame. When the door was opened, Dr. Amer entered the office and had an interaction with the security staff, who described his behaviour as “intimidating.”
As a result of this incident, Dr. Amer’s privileges at the Hospital were suspended and he was charged with and convicted of professional misconduct by his licencing body.
It is noteworthy that Dr. Amer had no previous discipline history and that the entire incident had no nexus to a patient, nor to the provision of medical services. In this regard, while Dr. Amer’s behaviour may have been extreme (and Dr. Amer did acknowledge his conduct by entering a guilty plea), this incident should serve as a warning to all health care professionals. Indeed, while it is no secret that even professional people can lose their tempers, particularly when working in a demanding environment, many professionals would not have realized that they are accountable for their behaviour in all of their dealings - not simply in physician-patient interactions.
Amer decision reflects “Disruptive Professional” Movement
While health care professionals may not have expected Dr. Amer to face a suspension of his hospital privileges or College Discipline proceedings as a result of this incident, those who have followed recent developments in hospital-physician interactions would not have found the result in Amer surprising. In fact, such a decision could have been anticipated in light of the continued efforts on the part of regulators to move forward their efforts to deal with what we now refer to as “disruptive professionals” and to address the fall-out from the tragic Dupont-Daniels case and recommendations made by the Coroner’s Jury.[2]
Contemporaneous with the release of the Coroner’s Jury recommendations arising from the untimely murder on Hospital property of nurse Lori Dupont by physician Marc Daniels (who then took his own life), the College released its Policy 44-07 “Physician Behaviour in the Professional Environment” (the “Policy”)[3] as well as the Guidebook for Managing Disruptive Physician Behavior (the “Guide”)[4], prepared in conjunction with the Ontario Hospital Association. Both the Guide and the Policy have informed recent decisions and reflect the fact that institutions and regulators are expected to deal with matters involving professional conduct seriously, and in some cases, severely.
To provide some guidance on this new buzzword “disruptive,” the Guide provides a definition of “disruptive behaviour” as including conduct where “inappropriate words, actions or inactions by a physician interferes with his or her ability to function well with others to the extent that the behaviour interferes with, or is likely to interfere with quality health delivery”.[5] While a single act, like that of Dr. Amer’s, can constitute disruptive behaviour, it can also include a pattern of conduct or behaviour.[6]
Following the Policy and Guide, and in accordance with the Coroner’s Jury recommendations, significant changes to the Occupational Health and Safety Act[7] (“OHSA”), have also been made. These changes are aimed at protecting employees from workplace violence and harassment. They require employers to develop policies on workplace violence and harassment, maintain programs to implement the policies, assess the risk of violence in the workplace and take reasonable precautions to protect their employees from the conduct of other professionals and domestic violence. The requirements are significant and cannot be taken lightly.
Impact of Changes on Health Professionals
While administrators and others may feel that these legislative improvements and accompanying changes in attitudes were long over-due, counsel who represent health care professionals are acutely aware of the difficulty some professionals are having as they cope with a “pressure cooker” environment in which actions in the workplace that were formerly ignored or simply written off as “silliness” or “eccentricities” are landing them in serious hot water. Frequently, these professionals are shocked to learn that conduct (which, as often as not, is modelled after their own mentors or is viewed by the professionals as necessary and appropriate advocacy on behalf of their departments, patients, etc.) that has for years been tolerated, is now viewed as “disruptive” and as a basis for disciplinary proceedings. Further, in some cases, professional are frustrated by the application of disruptive physician behaviour policies to complaints and allegations made by complainants who themselves have less than “clean hands.”
The ramifications of a health professional being viewed as or labelled “disruptive” are numerous and significant. Institutional responses can include: changes to or loss of employment and problems with their licensing body (including suspension). Additionally, such health professionals can face professional and social isolation, difficulty reintegrating with colleagues and being unfairly targeted in future matters. Even when reasonable and appropriate steps are taken by the institution and the health professional, the label is hard to shake.
Impact of Changes on Hospital Administration
Just as physicians must learn to adjust to new behavioural standards and consequence for breaches of same, hospital administrators face increased pressure to respond formally to complaints or allegations that in past could have been effectively addressed by way of an informal chat. With increased tools for dealing with disruptive physician behaviour comes greater responsibility to utilize these tools in a fair and transparent manner. Administrators are increasingly burdened with the challenges of having to manage and address complaints or reports about the conduct of their professional staff, even when those staff are and have always been exemplary caregivers or respected and valued members of the team.
Avoiding and Managing Professional Behaviour Problems
Dealing with professional behaviour is never an easy situation, and can be highly charged with emotions and competing interests (particularly when the professional is, by all accounts, an excellent clinician). It is in the interest of administrators and professional staff alike to keep the process and outcomes as fair and reasonable as possible, but this requires significant time and effort on the part of administration to put the appropriate policies, protocols and training and educational opportunities in place before having to address a complaint or allegation. Such efforts will be helpful in terms of avoid problems before they start, as behavioural expectations will be transparent and well-known, as well as in responding to such concerns.
The Guide provides an ideal starting point for an institution in the development of an approach for dealing with disruptive physician behaviour. While many institutions have worked tirelessly on creating policies and protocols to deal with the recommendations in the Guide, many (particularly some smaller facilities) still have work to do. As has occurred with privacy legislation and requirements, ignoring or not meeting expectations, in light of publically available guidance, will not be tolerated.
While establishing the policies and guidelines is the first important step, education and implementation cannot be ignored. A policy manual which sits dusty on a shelf, unknown to professional staff, will be viewed as harshly as if no policy had existed in the first instance. Making sure that everyone from the top down has an opportunity (and in fact is required) to understand the expectations being placed upon them and to receive relevant education and training will not only reduce the risk of problems, but facilitate smother resolutions when those inevitable problems arise.
It is important that institutions recognize that some of these people, attitudes and behaviours (as unwelcome or as unacceptable as they may be) have existed long before these legislative and cultural changes came into place. Accordingly, taking steps to effect change through well drafted policies and guidelines, education, training and support for all involved will facilitate an institution that is well-prepared, reasonable and ultimately, safe.
Finally, reaching out to available resources will also assist those charged with the responsibility for managing these behavioural problems. In addition to the published guidance and the advice available to administrators from their trusted advisors, there is some external support available, particularly when the issue is physician behaviour. The Ontario Medical Association’s Physician Workplace Support Program (“PWSP”) was created with the intention to be “an integrated, comprehensive program aimed at providing physicians, physician leaders and their workplaces with the necessary tools for promoting professional conduct and healthy relationships resulting in the reduction of incidents of disruptive behaviour”[8]. Providing support for the workplace in addition to the physician, the PWSP offers coaching/consulting service for Physician Leaders and educational workshops to increase awareness of the impact of disruptive behaviour and knowledge of prevention and early intervention strategies.[9] It is hoped that other professional organizations will follow suit in the development of such programs since it is not just physicians who exhibit “disruptive behaviour.”
Summary
As in many situations, the first step in managing these professional behavioural problems is attempting to avoid problems before they start. No institution wants their name plastered on the front page of the local paper or to see the decimation of one of their professionals’ careers through discipline proceedings, the loss of a hospital appointment or even criminal charges. While institutions cannot always control people, they can work towards creating environments with staff who are educated, informed and supported. Change is hard but in dealing with professional behaviour change is inevitable, required and ultimately, if done properly, will be for the better of care providers and patients alike.
[1] Re: Amer, EE, College of Physicians and Surgeons of Ontario, October 26, 2011[2] Verdict of the Coroner’s Jury, December 11, 2007[3] CPSO Policy #4-07, approved November 2007[4] Guidebook for Managing Disruptive Physician Behaviour, the College of Physicians and Surgeons of Ontario, April 2008[5] Guidebook, supra, at p. 4[6] Ibid, at p. 5.[7] R.S.O. 1990, c.O.1.[8] www.phpoma.org/pwsp.html[9] Ibid.
