Unprofessional Behaviour - What Can it Look Like? What are the Consequences?

1. 2019 Perspectives Symposium
January 31, 2019
#TSINPerspectives2019

2. Perspectives on Professionalism
Unprofessional Behaviour - What Can it Look Like?
What are the Consequences?
Taivi Lobu JD
Vice Chair, Health Professions Appeal & Review Board
31 January 2019

3. 3
What can unprofessional conduct look like? Who
decides what is unprofessional? What are the
consequences?
Context for determining professional conduct

4. Professionalism – who determines it?
4
29 Self-regulated health professions in Ontario
Health professionals accountable to their
regulatory College

5. 27 Health Regulatory Colleges
(26 under the Regulated Health Professions Act
plus the College of Veterinarians of Ontario)
5
College of Audiologists and Speech-
Language Pathologists of Ontario
College of Homeopaths of Ontario College of Optometrists of Ontario
College of Traditional Chinese Medicine
Practitioners and Acupuncturists of Ontario
College of Kinesiologists of Ontario Ontario College of Pharmacists
College of Chiropodists of Ontario College of Massage Therapists of Ontario College of Physicians and Surgeons of
Ontario
College of Chiropractors of Ontario College of Medical Laboratory Technologists
of Ontario
College of Physiotherapists of Ontario
College of Dental Hygienists of Ontario College of Medical Radiation Technologists
of Ontario
College of Psychologists of Ontario
Royal College of Dental Surgeons of Ontario College of Midwives of Ontario College of Respiratory Therapists of Ontario
College of Dental Technologists of Ontario College of Naturopaths of Ontario College of Veterinarians of Ontario
College of Denturists of Ontario College of Occupational Therapists of
Ontario
College of Registered Psychotherapists and
Registered Mental Health Therapists of
Ontario
College of Dietitians of Ontario College of Nurses of Ontario College of Opticians of Ontario

6. Professional Standards – where are
they found?
6
Regulated
Health
Professions Act
(schedule 2 - Health
Professions
Procedural Code)
Profession’s
legislation
Occupational Therapy Act,
Medicine Act, Nursing Act,
Massage Therapy Act,
Dentistry Act, etc.
Include – Profession’s
Registration & Misconduct
RegulationsWritten &
Unwritten
“professional
standards”

7. Professional standards – legislative
context
7
Regulated Health Professions Act – s. 3 Duty of Minister of Health to ensure that:
the health professions are regulated and co-ordinated in the public interest,
appropriate standards of practice are developed and maintained,
individuals have access to services provided by the health professions of
their choice,
individuals are treated with sensitivity and respect in their dealings with
health professionals
Health Professions Procedural Code (Schedule 2 of Regulated Health Professions Act & part of all
health professional legislation ):
section 3(1) - duty of regulatory College to establish and maintain standards of
practice and ethics for the profession
section 3(2) duty of regulatory College to serve and protect the public interest
Regulations (registration/misconduct regs) – are the legal standards for entry into the profession
or determining if a member should be subject to remedial or disciplinary action

8. Profession standards – when are they
considered?
8
Applying to College
membership
- Good conduct
requirements in
College’s
Registration
Regulations
- Appeal College
decision to HPARB
- decisions of HPARB
& Courts on CanLII.org
Referral to Discipline
Hearing
- can lose right to
practice profession
- can appeal to Court
- Summaries in
profession’s
publication
- College Discipline
Committee
decisions on
CanLII.org
Complaints to
regulatory College
- Investigation
- No action, remedial
action or referral for
Discipline Hearing
- Can appeal to HPARB
- HPARB’s Complaint
Review decisions on
CanLII.org

9. Professionalism – good character - sample
requirement for registration
9
CPSO – Medicine Act – Registration Regulation
2. (1) …the applicant’s past and present conduct
afford reasonable grounds for belief that the
applicant, ….
(b) will practise medicine with decency,
integrity and honesty and in accordance with
the law…
(d) can communicate effectively and will
display an appropriately professional attitude.

10. Gatekeeping role of College
Chauhan v. Health Professions Appeal and Review Board and the College of
Physicians and Surgeons of Ontario, 2013 ONSC 1621 (CanLII)
10
- serious criminal charges pending against
registration applicant in criminal justice system
- presumption of innocence in registration
applications?
- In health professional regulation – public
interest - Onus on applicant to demonstrate
good character

11. Gatekeeping role of College
11
Criminal Law
standard
- An individual in
society
Professional Standard
- An individual in a
profession

12. Professionalism requirements when
entering the profession …
12
- Pilecki v College of Optometrists of Ontario, 2015 CanLII
92317
- Registration applicant had been found not guilty of
possession & distribution of child pornography
- criminal law requires proof beyond a reasonable doubt.
- Registration Regulation – specified no criminal convictions
but no general good character requirement

13. J.S. v College of Physicians and Surgeons of
Ontario, 2017 CanLII 46108 (ON
13
incorrect answers on application form
- “have you withdrawn or resigned from a
postgraduate medical training program” –
checked “No”
- Intention to mislead?

14. Where personal & professional intersect –
social media & professionalism
14
B. R. v M. M., 2019 CanLII 897 (ON HPARB), (College of Massage
Therapists of Ontario)
- Member – RMT - maintained blog in which he attacked the use of
concepts such as chi and meridian lines, and practices such as
acupuncture, Ayurvedic medicine – use of vitriolic language.
- Member said this was a personal blog, not part of his RMT practice,
and that his writing style was within the culture of blogging
- Decided - Duty as a regulated health care professional “to maintain a
professional attitude in all of his communications even when
providing a critique of certain methods of practice and to demonstrate
appropriate respect for professional colleagues.”

15. Identifying & Applying standards for professionalism
15
M.K. v J.K., 2019 CanLII 1735 (ON HPARB) – (College of
Denturists)
Complaint alleging rude and unprofessional behaviour when
complainant sought to make an appointment with the
denture clinic.
Member responded saying complainant was not his patient –
did not disclose that complainant was a patient at the clinic
ICRC issued reminders
• professional obligation to cooperate with complaint
investigation
• Patients may view interactions differently from member

16. Where personal & professional intersect – social
media & professionalism
16
Strom v. Saskatchewan Registered Nurses’
Association, 2018 SKQB 110 (CanLII)
A nurse, posted comments on Facebook
regarding end-of-life care that her grandfather
had received at a care facility – professional
misconduct?
Saskatchewan College – Nurse found guilty at
discipline hearing & fined.

17. Where the personal & professional intersect
BS v SN, 2013 CanLII 59515 (ON HPARB)
17
Complainant and RN - long-feuding neighbours
– Complainant launched a private prosecution against RN’s
family member alleging physical assault.
- RN represented his family in court proceedings - contacted
neighbour’s physician for medical information for defence.
- Neighbour filed complaint with CNO alleging that RN sought
medical information without patient consent.
- CNO – no action warranted
- RN did not disclose or otherwise rely on his professional
status when seeking medical information about his
neighbour.

18. Professionalism & Communication issues
18
Complaints process – challenging for ICRC to make
determinations about issues pertaining to
communications & “he said/she said” scenarios.
All complaints become part of conduct history with
the College
A member’s conduct history (prior complaints etc)
must be considered when complaint being addressed
(pattern of concerns; unremediated conduct) Health
Professions Procedural Code s.26(2)

19. Professionalism & Communication issues
19
N.K. MD, v. J.C., 2017 CanLII 88 (ON HPARB)
Previous concerns of communications raised by
other patients – sustained pattern of concerns
- Remedial disposition – member required to
complete a SCERP – individualized
instruction/coaching in communications, seven
hours, “focused on breaking bad news to patients
and families and ensuring compassionate and
empathetic communications at all times.”

20. Conduct history – communication issues
20
P.C.W. v T.L., 2017 CanLII 86695 (ON HPARB)
“no question that other individuals who have
sought medical care from the Applicant have
experienced concerns with the Applicant’s
communications and procedures to the extent of
filing complaints with the College.”
“when considered as a whole, the Applicant’s
complaint history supports a decision to require
remedial action related to patient relations.”

21. Professionalism – patient-centered care
P.C.W. v E.D., 2017 CanLII 86707 (ON HPARB)
Rules & Procedures v. Patient Care
• Member cautioned regarding “very confrontational mode of
communication with patients”
• “emphasis was on rules and procedures and the formal
requirements of the practice rather than medical care and the
needs of patients.”
21

22. Identifying & Applying standards for professionalism
Corporate structures v. Client care
22
R.D. v S.K., 2017 CanLII 65227 (ON HPARB) -
pharmacist
Complainant’s daughter hospitalized as result of
serious dispensing error made in a pharmacy which
was part of a large chain.
Regional Pharmacy director (R.Ph) contacted by
complainant regarding systemic matters
Complaint – telephone call “ a routine pr call” “no
empathy or remorse, cold and heartless”
Is following corporate policies sufficient?

23. Complaining about another
health professional
A Dental Hygienist was terminated from her work at a
Dentist’s office. D.M.F. v. L.S., 2010 CanLII 63568 (ON
HPARB)
Hygienist filed complaint with Dentist’s College about her
former employer’s billings and infection control practices
The Dentist then filed a complaint with Hygienist’s College
alleging that Hygienist acted unprofessionally in making
vexatious allegations about him and his staff.
23

24. Complaining about another
health professional
D.M.F. v. L.S., 2010 CanLII 63568 (ON HPARB)
- broad public interest for health professionals to be able to
report concerns about another professional to regulator
- Should someone be subjected to professional misconduct
(or complaint) proceedings for doing so?
24

25. Professionalism – gender bias & cultural
discrimination in providing couples therapy
25
SM v RE MD, 2013 CanLII 78068 (ON HPARB)
Psychiatrist providing couples therapy.
Complaint of unprofessional conduct on the part of the psychiatrist
included gender bias & cultural discrimination against the complainant
- Remarks that the complainant attributed as being made by the
psychiatrist “overly familiar” and “indiscreet” - Committee could
not determine what was said with certainty – Discipline Referral?
- Were elements of the psychiatrist’s practice relating to psychiatric
diagnoses, polypharmacy, medical record keeping etc. that founded
a requirement for a personal attendance caution.
- Plus - advised as to perception of of gender bias when providing
couples’ therapy

26. Resources
www.hparb.on.ca 26
for profession-specific regulations:
www.ontario.ca/laws (or google “elaws”) – click on
health professional legislation (eg., Pharmacy Act,
Opticianry Act) click on regulation
for cases: Canlii.org -
To Ontario, to Tribunals, to
Health Professions Appeal & Review Board
(complaint review & registration decisions) or
individual College (Discipline Committee)
decisions
General - College websites and publications
www.hparb.on.ca