CPSO rejects joint submission on penalty for physician’s “deplorable actions and behaviour” during CPSO ordered practice assessment

The Discipline Committee (“Committee”) of the College of Physicians and Surgeons (“College”) made the rare decision to reject a joint submission on penalty in the case of an anesthesiologist who went to dangerous lengths to deceive a College assessor. The Committee found the proposed order so inadequate considering the physician’s conduct that accepting it would bring the administration of justice into disrepute. In doing so, the Committee offered valuable insight into when it will reject joint submissions, which are discussed in this blog.

Background

The physician in this case, Dr. Y, was an anesthesiologist participating in a College ordered assessment of his practice. The assessment was ordered by the Committee following an outbreak of Hepatitis C among Dr. Y’s patients linked to his failure to meet the standard of care for infection prevention and control (“IPAC”).

Dr. Y was concerned that the College assessor (the “Assessor”) would criticize his practice of preparing remifentanil (a potent opioid commonly used for general anesthesia) in a single batch for several patients. Dr. Y concealed this practice by preparing the solution and secretly loading several syringes while they appeared to be sealed and unused.

Dr. Y then stored the tampered syringes with other syringes in a drawer in the operating room and used them to administer other medications to patients without documenting that he was also administering remifentanil in the patient record.

When the Assessor noticed a small amount of liquid present in an apparently unused syringe, Dr. Y feigned surprise and allowed the Assessor to believe that there was a manufacturing defect with the syringes.

Dr. Y later confessed what he had done during an interview with the Assessor. The Assessor reported to the CPSO that in her opinion, Dr. Y had behaved in a manner that showed a significant lack of judgment and professionalism, as well as failed to meet the standards of the profession by:

  1. Purposefully concealing his actions to avoid formal assessment by the CPSO;
  2. Putting patients at risk by not documenting the administration of remifentanil so that other health care providers could provide appropriate treatment, and placing the tampered syringes where they could easily be used by others by mistake; and
  3. Not observing IPAC practices by tampering with syringes and leaving them in an unsterile drawer.

Dr. Y admitted to the above acts of professional misconduct and expressed remorse for his actions.

Joint Submission

In their joint submission to the Committee, Dr. Y and counsel for the College proposed the following penalty and costs:

  1. A three-month suspension of Dr. Y’s certificate of registration;
  2. A reprimand; and
  3. $6000 in costs to the College.

The Committee expressed concern that the initial joint submission did not adequately address Dr. Y’s ethical violations, or his failure to meet the standard of practice. The parties then supplemented their proposal by adding the requirement that Dr. Y complete a course in ethics and professionalism before returning to practice.

Despite the addition of an ethics course, the Committee found the proposed order unsatisfactory following the principles set out in the Supreme Court of Canada decision, R v. Anthony-Cook, and rejected it.

The Anthony-Cook decision clarifies that while the Committee has discretion to accept or reject a joint submission on penalty, the Committee should not depart from a joint submission unless the proposed penalty would bring the administration of justice into disrepute, or is otherwise not in the public interest.

The Committee found that the high standard for the rejection of a joint submission was met because the proposed order in this case:

  1. Would suggest to the public that the proper administration of the professional discipline system had broken down;
  2. Was contrary to the public interest as it did not sufficiently address Dr. Y’s failure to maintain the standard of practice of the profession; and
  3. Contained no mechanism by which the CPSO or the public could be satisfied that Dr. Y had remediated his clinical deficiencies before to returning to practice.

In other words, the proposed order did not adequately address the misconduct or ensure that Dr. Y could maintain the standard of practice before being allowed to continue to treat the public. As part of its assessment of what penalty was appropriate in this case, the Committee considered a range of issues, including Dr. Y’s history of misconduct, dishonesty during his assessment, and the potential for Dr. Y to return to work following his suspension. 

Escalating pattern of misconduct

The Committee observed that instead of Dr. Y improving his practices after his previous discipline matter, the deception and substandard care that occurred during his reassessment appeared to demonstrate an escalating pattern of misconduct.

Where Dr. Y’s earlier breach was found to be an accidental breach of professional standards (albeit one with serious consequences), in this case Dr. Y had intentionally planned and delivered substandard care. In doing so, he exposed patients to harm, broke their trust, as well as the trust of his colleagues, and interfered with a mandatory practice assessment. These breaches of trust meant that Dr. Y not only had an ongoing clinical deficiency related to IPAC, but new and troubling ethics violations to address.

Dishonesty and the need for direct observation

Although Dr. Y claimed to have improved his practices, the Committee was distrustful of Dr. Y’s description of his day-to-day practice due to his previous attempt to evade assessment by the College. As a result, the Committee chose not to accept Dr. Y’s description of his improved IPAC practices.

The Committee required concrete evidence that Dr. Y had remedied his practices by submitting to observation by a College-appointed expert before he could return to practice. The Committee further commented that due to Dr. Y’s interference in the assessment, Dr. Y’s actual care had not yet been observed and confirmed to meet the standards of practice of the profession required to ensure public safety.

The Committee considered the penalties in four other administrative cases in which physicians tried to cover up potential practice inadequacies or investigations that had occurred in the past. In each case, the penalty ordered included a targeted effort to address the specific behaviour of the physician as a condition of their return to practice following suspension.

The Committee found that where a physician demonstrates deficiencies in maintaining the standard of practice and these deficiencies are potentially ongoing, restrictions on scope of practice, supervision or assessment is needed to ensure that the College is not leaving the public vulnerable to inadequate care.

Potential return to practice

Another relevant factor in the Committee’s decision was the potential for Dr. Y to return to practice. At the time, Dr. Y had resigned his hospital privileges, retired from the practice of medicine, and had not expressed an intention to return to practice. However, the Committee found that without evidence of Dr. Y’s future plans, his return to practice must be considered a possibility.

The Committee further highlighted that depending on what type of practice environment Dr. Y returned to and the hiring practices of these employers, Dr. Y may be able to return to practice without being subject to a rigorous assessment or his new employers being aware of his history of misconduct if he chose to do so.

Final Order

To address its concerns, the Committee ordered that additional terms and conditions be imposed on Dr. Y’s certificate of registration in addition to the penalties originally proposed by the parties. The final order required that if Dr. Y returns to practice, he must inform the College of any new practice location within 15 days, and to submit to and pay for an on-site observation and reassessment of his practice within 3-months.

Conclusion

This decision provides several takeaways for those preparing joint submissions and insight into appropriate penalties for physicians who demonstrate a pattern of misconduct, attempt to cover up substandard practices, or who have left practice at the time a penalty order is made. These takeaways include that:

  • The penalty must address the misconduct before the Committee by including measures to ensure that the physician is remediated and their return to practice will not bring the professional discipline system into disrepute (as required by the Anthony-Cook test);
  • The penalty for a physician that is not practicing medicine at the time that a decision is made but who the Committee determines may potentially return to practice should address the terms on which the physician may return to practice (in this case, a requirement to notify the College and undergo an in-practice assessment);
  • A pattern of escalating misconduct may call for a more onerous disposition or penalty than that agreed upon by the parties; and
  • Where there is evidence of dishonesty, a Committee may choose not to accept a physician’s description of their practice and require independent verification of changes.

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