Canadian provinces should enshrine patient rights in a charter with independent enforcement, according to an article in the Canadian Medical Association Journal releasing Monday.
Colleen Flood, Faculty of Law, University of Toronto, told the Toronto Star, patients who feel they have been treated unjustly for whatever reason shouldn’t have to hire a lawyer to have their grievances heard but rather have access to an independent adjudicator.
An independent, arm’s length ombudsman or commissioner, she said, is key to the success of a patient bill of rights.
“If people don’t trust that their complaints or concerns are really going to be looked at independently of providers — doctors or hospitals that they are complaining about or the government itself — then they are not going to trust the process,” said Flood, who co-authored the analysis with law school colleague Kathryn May.
She said while doctors and nurses fear increase litigation resulting from such a charter, the experience in other countries, such as New Zealand, shows that having one actually reduces the number of lawsuits involving medical staff.
“It will be a cheap, easy way to make a complaint other than having to get a lawyer. They can make a complaint online. And the ombudsman and his or her staff work to resolve it. Sometimes it’s just a question of getting an apology or getting them better facts. It doesn’t have to be a huge thing,” she said.
“We have good data from New Zealand that shows the number of formal disciplinary complaints against doctors has just declined precipitously.”
Flood said patients have rights that “exist but they are over the place in different pieces of legislation and common law” but a charter of rights would enshrine them all in one place and can be given prominence in hospitals and doctors’ offices.
The article points out that an independent health ombudsman can help initiate improvements in the system by issuing recommendations or reports on problems in the system, and that overseas experience suggests that despite having no formal powers to implement change, such recommendations can be a powerful force for change.
“A patient charter of rights should achieve greater clarity and awareness of the nature and extent of patients’ rights; if well-designed, it should also help drive improvements in the quality and timeliness of care, improve the overall accountability of members of the health care system and reduce costly litigation,” the authors conclude.
There is No Offence for which a doctor Permanently Loses Their Licence to Practice Medicine in Ontario.
As it currently stands in Ontario, when doctors are found guilty of sex abuse of a patient, there is a mandatory licence ban of five years as stipulated by the Regulated Heath Professions Act. There is no offence for which there is a permanent licence ban — though in at least one case the College denied reinstatement and recommended a permanent revocation of the licence. Fourteen (14) doctors in Ontario have had their licence revoked since 2007.
Apparently the medical profession should by lobbying the Ontario Provincial government to amend the Regulated Heath Professions Act to include the ability of the College of Physicians and Surgeons of Ontario, which is self-regulated, to permanently revoke doctor’s licences to ensure they cannot continue to abuse patients in the future. They don’t do this now and only impose five year bans and at the end of the ban, these doctor’s later apply to have their licences reinstated and most are successful in this endeavour.
In cases where doctors do get their licences back (information on their prior offences can be found through a search on the College website), the panel can impose restrictions, including unscheduled checks, posting of information in the doctor’s office, allowing practice only in a team setting, or only treating male patients over the age of 18.
Some critics believe physicians found guilty of sex abuse should not be allowed to practise again.
“Doctors do not have the right to earn their living by being doctors . . . they have a privilege,” says lawyer Marilou McPhedran, a long-time critic of the disciplinary committee process.
Now dean of the Global College at the University of Winnipeg, McPhedran chaired the College of Physician’s groundbreaking task force that recommended zero tolerance principles for sex abuse in 1991; she also led a review of the implementation of the law 10 years later.
As of 2009, McPhedran says her research continued to conclude that doctors who had their licences revoked for sexual abuse should not be allowed to be reinstated.
The latter was a condition for Dr. David Stuart Lambert, a Toronto GP who had his licence revoked in 2002 for sexual abuse of patients.
He was reinstated in 2009. But when the college sent two private investigators masquerading as female patients to check up on him, Lambert sexually abused one of them, touching her breast.
He lost his licence again last year — making him the first doctor in Ontario to have his licence revoked twice.
It’s a case that adds to McPhedran’s longtime critique of the self-regulation of professions.
“The [college] and other regulatory bodies have an inclination to see the situation from the doctors’ perspective much more easily,” she said.
But from the health professional’s point of view “the members of a college are typically much harsher on their members than would be the police or another government agency,” said Rosen. He says this extends to reinstatements as well.
According to the College, there have been eight reinstatement applications since 2004. Five were granted and three were denied.
At a reinstatement hearing, the College’s counsel and the doctor’s lawyer can offer up witnesses, character references (from colleagues, friends and former patients) and experts to argue their case.
Previous testimony and evidence from any criminal or civil trials are also included.
Witnesses can include psychiatrists, neurologists and clinicians responsible for treating the doctor, as well as independent experts who have conducted risk assessments.