Can five new adjudicators and one new name add up to a better tribunal at the CPSO?

The appointment this week of five new adjudicators to the discipline tribunal for Ontario doctors is another big step towards a more efficient and credible complaints and resolution process, said the tribunal director and the College of Physicians and Surgeons of Ontario’s CEO. The CPSO announced on June 21 that it has chosen five adjudicators with proven proficiency and experience in legal processes, administrative law, case management, conflict resolution and mediation to lead tribunal hearings. The tribunal is also going through a rebrand, complete with a new name, logo and website. On September 1, it becomes the Ontario Physicians and Surgeons Discipline Tribunal / Tribunal de discipline des médecins et chirurgiens de l’Ontario (TDMCO). “The cases coming before the committee are becoming more complicated both legally and factually, and as a result of that I think it’s helpful to have expertise in adjudication on the panel,” said tribunal director David Wright. Dr. Nancy Whitmore, CEO and registrar at the CPSO, said the rebrand is meant to reinforce the fact that the discipline tribunal works at arm’s length of the college which is, in essence, both the prosecutor and a party before the tribunal. “The discipline tribunal has always been very independent,” she said. “The changes will help to clarify this.” The Ontario Medical Association, which declined requests for an interview, said in an email that it was “working to understand how these changes will affect Ontario doctors.” The Canadian Medical Protective Association, which provides legal advice and representation to Ontario doctors, said it “supports in principle” the changes brought in by the CPSO. “The inclusion of experienced adjudicators has the potential to enhance the fairness, efficiency and cost-effectiveness of the disciplinary process,” the CMPA said in a written statement. The CPSO said its decision to bring in legally trained adjudicators was guided by recommendations made in 2015 by retired Ontario judge Stephen Goudge, who noted in a report released the following year that Ontario was home to about 40% of all physicians in Canada but accounted for more than 50% of all discipline-related matters and more than 60% of total CMPA lawyer hours spent on discipline-related matters nationally. Although tribunal hearings for Ontario doctors require a minimum of three panel members, discipline tribunals at the CPSO have historically been made up of five people–two public members and usually three physician members. One person in group one took on the role of chairing the tribunal. “But this person would not be a legally trained expert in adjudication,” said Dr. Whitmore. With the new adjudicators on board, future proceedings at the tribunal will be led by one of the five new appointees–each one with years of legal and adjudication experience–who will take on the role of tribunal chair. “The chair’s role is two things: one is to be like a traffic cop during the hearing … set the tone in the hearing room–which is a lot like a court room–bring people in when it’s their turn, stop people when they’re out of line, make rulings on evidentiary objections, and overall manage the hearing process,” said Wright. The second role, he added, is to manage the deliberation process after the hearing. The chair makes sure all tribunal members get a chance to speak, and that the panel focuses on the relevant facts of the case. The chair will most likely also write the decision, added Wright. Dr. Whitmore said the OPSDT is not the first physician tribunal or moderator to bring in legal experts to lead its panels. She cited doctors’ colleges in Nova Scotia and Quebec as examples of tribunal panels chaired by lawyers. Having legally trained adjudicators will reduce the need to bring in legal counsel to advice the discipline tribunal, leading to “significant cost reduction,” added Dr. Whitmore. In his 2016 report, Goudge highlighted the College of Physicians and Surgeons of Alberta as a useful example of efficiency in addressing public complaints against doctors. While Alberta’s number of public complaints were approximately equal to Ontario’s, the number of Alberta cases referred to a discipline hearing were a fraction of the Ontario total. A key differentiator for the Alberta model is its use of a complaints director to review cases and decide whether or not they should be advanced to a tribunal hearing, noted Nazrina Umarji, hearings director at the Alberta college. “Our complaints director is a physician who is supported by a number of staff, including a director of professional conduct and investigators,” said Umarji. “The complaints director would review complaints, send it for additional investigation and can decide to dismiss it or send it down for hearing.” The creation of such a role in Ontario was another recommendation in the Goudge report. However, this would require a change in Ontario’s Health Professions Procedural Code for doctors. Goudge also recommended that the CPSO appoint a patient advocate–a role that currently exists in Alberta. While the CPSO has, so far, not adopted all of Goudge’s recommendations, it is making steady progress towards improving the way it regulates doctors and handles public complaints, said Dr. Whitmore. “We have introduced a new way of looking at the quality of physicians’ practices–we’ve spent a lot of time simplifying policy so I know, as a physician, what I need to do as standard of care,” she said. “We’re working on better oversight of care in hospital facilities, out-of-hospital, and independent facilities.” There’s concrete proof that the changes CPSO has introduced in recent years are working. Today, said Dr. Whitmore, the college responds to all complaints within two business days. It has reduced the length of time it takes to resolve complaints from 350 days to 150. “Our backlog has been resolved,” she added. “We’ve just improved a lot of timelines.” Where its new adjudicators are concerned, the benefits are yet to be seen, said Wright. “I expect, first of all, an enhanced experience for physicians and witnesses, in particular in the hearing room,” he said. “I’m hoping that with new adjudicators we will have faster decisions, faster conclusion to hearings and perhaps less decisions being appealed to divisional court. It’s about justice being done more effectively, efficiently and more fairly.”

Can five new adjudicators and one new name add up to a better tribunal at the CPSO?

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