B.C. doctors perceive a heavy hand in new act governing health professions

Family doctor shortages, emergency rooms so understaffed they’re on the verge of closure, unprecedented waits for urgent cancer care. It is hard not to think that British Columbia’s healthcare system is currently broken. Doctors are concerned for their patients. Their work environments are often dangerously understaffed. They have important messages to share, given their close-up view on how healthcare resources are being managed and administered. But they have become apprehensive about speaking to the media, particularly in the wake of B.C.’s new Health Professions and Occupations Act (HPOA)—an act that replaces the Health Professions Act (HPA) in the regulation of self-governing professions. The HPOA received Royal Assent last November. Large chunks of it have been welcomed as overdue—particularly the new emphasis on cultural safety that will help ensure Indigenous people (and other minorities) receive equal and non-discriminatory heathcare services. But other aspects of the new legislation worry doctors and health professionals. Dr. Kevin Koopman, a family physician practising at a group medical clinic in Sechelt, B.C., was concerned enough to write a June 26 open letter to the Victoria Times Colonist. “Speaking out against policies which lack any scientific basis would hold a healthcare provider liable on conviction of a $25,000 fine, six-month imprisonment or both,” Dr. Koopman wrote. Read: At BC Cancer, doctors are afraid to speak out, while patients wait and wait and wait With respect to speaking out publicly, the perceived problem is that clause 34 of the HPOA makes it an offence to provide “false or misleading” information to the public. As Dr. Koopman suggests, there are penalties for such “offences” in clause 518. Penalties that do include fines ranging from $25,000 to $200,000, jail terms of “not more than six months” and potentially both. Under what circumstances will such penalties be implemented? Doctors want to know. Already in B.C., there is an established culture of health authority administrators strongly castigating and even disciplining physicians who speak out about systemic issues. This has been widely reported in coverage of the healthcare crisis, both on and off the record. A new physician strategy has been noticeable in recent months: the resort to safety in numbers. Last September, several hundred members of Consultant Specialists of BC released a letter expressing their concerns about what they perceive to be dangerously long wait times for diagnosis and care. Another more recent example: At Surrey Memorial Hospital this past May, three-dozen emergency physicians ended up writing a collective letter—released to the media—after a number of them were disciplined by Fraser Health Authority administrators for medico-legally protecting themselves. The physicians had charted the extreme wait times they believed could have a significant negative impact on their patients’ outcomes (and, accordingly, might be relevant in a subsequent analysis of the patient’s medical treatment). Surrey Memorial Hospital has been critically understaffed in a number of areas (short on emerg docs, hospitalists and obstetrical staff). One of the emergency physicians, Dr. Urbain Ip, was selected by his colleagues to be their media spokesman during the crisis. He is a clinical assistant professor of emergency medicine at the University of British Columbia medical school—a status which was felt would give him additional layers of protection. B.C. Health Minister Adrian Dix responded to the crisis at Surrey Memorial with a figure he frequently touts, saying B.C. has employed 38,000 more health workers since 2017. That number does not specify how many of the hired workers are doctors, nurses, radiology techs, licensed practical nurses, and how many are additional administrators. There were media questions about alleged Fraser Health Authority measures to muzzle the Surrey emerg docs. Dix said physicians who work within health authorities are not silenced by their contracts. The Medical Post checked in with numerous physicians who work with health authorities. The consensus was that the pressure on employees to not speak to the media is not contractual—while it is nonetheless very real. Health authority administrators can and do reprimand physicians who speak out, they reported. Health authorities also have the power to take away a physician’s hospital privileges, and to fire them without cause. The concern physicians have expressed to the Medical Post (and on social media) is that the HPOA could broaden and strengthen the mistrustful and restrictive work environment that already exists in B.C. Examples of physician concern In the 2022 Health Authority Engagement Survey conducted by Doctors of BC, only 41% of participating physicians expressed confidence that their hospitals deal effectively with unsafe conditions. “We (need) more transparency from leadership. Issues seem to arise when decisions are made without consultation of impacted medical staff which results in mistrust and anger. Involvement of physicians in decisions that impact them is of utmost importance and shows respect,” wrote one physician, anonymously quoted in the engagement survey summary. In recent Medical Post coverage of unacceptably long waits for diagnosis and care at the BC Cancer Centre, readers might have noticed that physicians currently working at BC Cancer were too afraid to come forward, though we tried through various channels (including a direct request to the ministry of health). A physician, who worked for many years at BC Cancer but has since resigned, talked to us about systemic issues at the cancer centre, but only on the condition of absolute anonymity. The physician expressed fear of consequences—specifically referencing the HPOA and its harsh retributions for speaking out. Is that fear—not unique to this physician—a misperception of the HPOA’s intent? That remains to be seen. The wording of the nearly 300-page document is broad and the regulations are yet to be written. But time and again now, asked for their input on Medical Post stories, B.C. physicians refer to the HPOA and either guard their responses or avoid interviews altogether. It is also noticeable that media reports covering critical healthcare issues now commonly refer to “anonymous” physician sources who ask not to be named out of fear for the consequences. Government clarification In an email to the Medical Post, on behalf of the B.C. Ministry of Health, communications manager Amy Crofts pointed out that the HPOA is the first reform of the Health Professions Act in 30 years. She said the consultation process that occurred for the act was “one of the most thorough consultation and engagement processes the government has ever offered,” one that was “informed by three years of consultation on the Cayton Report.” The ministry speaks of a broad public engagement which included “a survey of over 4,000 respondents of which 71% identified as health professionals (and) 92% were in favour of merit-based appointments to boards.” Meanwhile, Doctors of BC said its ability to participate in the process was limited to a couple of letters expressing specific concerns and suggestions—input it says was subsequently ignored. A Q&A, published online by the ministry, says this about the impact of HPOA on a physician’s right to speak out: “This legislation will not limit physician’s or health practitioner’s critical or free speech. However, the act does have provisions that can be enabled to protect the public by requiring regulatory colleges to take action against health professionals who are spreading misinformation that could bring harm to patients or the public.” What exactly is “misinformation” and who will have the power to litigate it, under the new act? We don’t know yet. What is clear is that HPOA creates a new, government-appointed supervisor position to act as a watchdog on regulatory colleges. It changes the composition of college boards from being 60% elected by the regulated professions (under HPA) to being 100% government-appointed. More wording from the online government Q and A: “The HPOA does important things: It takes a proactive approach to eliminating discrimination in B.C.’s healthcare system. It improves governance of regulatory colleges by moving to a merit and competency-based appointment process. These processes will be posted publicly to maximize transparency. It also creates a superintendent’s office to oversee the regulatory colleges. This will ensure colleges are laser-focused on patient safety and the public interest. It allows for more transparency and accountability to the public. It is focused on keeping people safe.” “Transparency” and “accountability” are important words. But they are also big words, particularly if the determination and enforcement of those values is concentrated in the hands of one body. What is the B.C. government’s track record on “transparency” and “accountability” in existing areas of healthcare management? Of course, that depends on who you talk to. Doctors of BC Doctors of BC and other professional associations felt blind-sided when the HPOA received Royal Assent at the end of the legislative session this past November. After that, Doctors of BC processed the voluminous language of the act and compared it to legislation in other provinces, in preparation for a town hall with its membership held on April 22. Nearly 400 physicians participated, Doctors of BC president Dr. Joshua Greggain told the Medical Post in an interview. Answering the question of whether the HPOA reflects a wider trend that has begun to reform other self-governing professions legislation across Canada, Dr. Greggain said: “This would be a unique approach to health professions review in this country.” He said the Doctors of BC HPOA town hall attendees had lots of questions for the B.C. health ministry lawyers who were present (i.e., the lawyers who had written the act). Physicians were upset by the loss of their ability to elect at least a portion of the people who will represent them in the reconfigured regulatory college boards. They currently elect 60% of board members, under the previous act. Under the HPOA, 100% will be government-appointed (as will the powerful new superintendent position).= While Dr. Greggain clearly stressed that physicians are strongly committed to upholding professional ethics and penalizing physicians who commit malpractice or violate public trust, he added that they are also very concerned that, with the HPOA in full effect, as currently written, complaints against physicians might be widely publicized before they are fully investigated. Given social media, a physician’s reputation could be destroyed, regardless of whether the complaint turns out to be valid. In Dr. Greggain’s words: “Two big concerns continue to float to the top, around self-governance,” he said. “How will we be able to have our own physicians on the board? To ensure that we are evaluated by peers as opposed to appointees, in the complaints process. How is this going to come to fruition? We need to have some accountability when there are healthcare providers, physicians included, who do bad things— which happens very infrequently. There needs to be accountability for the public sake. However, the fear of inappropriate or foolish complaints being published is a great concern.” Doctors of BC issued a press release in support of the Surrey Memorial Hospital emergency physicians—also flagging the wider issues the crisis at that hospital had highlighted. When the Surrey physicians warned the public about the degree to which the hospital was understaffed, one physician said he would not bring his own family members to the emergency room until the critical issues are addressed. “We need to be able to advocate for system changes as a collective, not just me as a physician,” said Dr. Greggain. “How we do that has to involve trusting relationships with our partners, including health authorities and government.” He said the Surrey Memorial Hospital emergency physicians had been “courageous.” What’s next Dr. Greggain hopes that Doctors of BC—working together with other health professions associations—can have a meaningful input in the shaping of the HPOA regulations. “We will continue to advocate and push for direct involvement, if not oversight in that process. I'll give you an example. The superintendent is going to be appointed to oversee all of these things. We believe there’s a great way to do that democratically, so that there’s some sense of impartiality. If it’s appointed by the cabinet or the ministry, we don’t feel like that is enough of an arm’s length. We can’t make that happen (on our own). But we can continue to advocate for it, to ensure that our voices are heard and our members voices are accounted for.” “I believe any act can be amended. Right? They are not written on stone, they are in fact adaptable…” Dr. Greggain suggested. “Some of my colleagues say, repeal the entire act. . . . I think there is modernization that needs to occur. There has been a lot of engagement with our indigenous patients, partners and communities. And so my perspective is, saying to repeal it is short-sighted because it minimizes or diminishes the voices that have struggled to be heard in the health profession and in the health system. However, we also need to protect our physicians to ensure that again, frivolity doesn’t occur when it comes to complaints. And that we still have some autonomy when it comes to our voice.” The ministry’s Crofts said: “The government will work with professional organizations, health practitioners and other stakeholders to implement the legislation.” There is a postscript to this story: In the wake of the media coverage of the Surrey Memorial Hospital emergency room crisis, the B.C. Minister of Health on June 1 announced that health authority and emergency services employees will now be protected under the already-existing Public Interest Disclosure Act. That legislation contains certain restrictions and steers potential “whistleblowers” into an internal system that processes their concerns. Physicians who might choose to speak out, directly or as a group, without first subjecting themselves to the ministry’s internal messaging process, would not be protected under that act. A recent article in The Tyee explored what the announced “whistleblower legislation” actually means. For now, health professions associations— including Doctors of BC—are working hard on their engagement with the health ministry, in hopes that the resolution to their concerns will come through the language of the regulations.

B.C. doctors perceive a heavy hand in new act governing health professions

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