Last week, the governing council of the College of Physicians and Surgeons of Ontario (CPSO) voted unanimously in favor of changing its bylaws to allow for public reporting of the results of inspections of Out-of-Hospital Premises, such as private colonoscopy and plastic surgery clinics.
This change was made following reporting by the Toronto Star, which raised important concerns that the public was being put at risk by a policy of not identifying clinics that receive failing grades or conditional passes.
To date, the inspection program has identified some clinics with serious quality deficiencies, including a colonoscopy clinic in Ottawa with inadequate sterilization procedures. Since the beginning of the inspection program in 2010, nine of Ontario’s 251 clinics failed inspection, and a further 64 passed with conditions.
The CPSO will now post inspection results on their website.
There is wide agreement that this policy change represents a positive step in improving the transparency of the CPSO, and its Registrar, Rocco Gerace, agrees that Ontario’s self-regulatory bodies must continue to become more transparent. However, there have also been recent calls for the CPSO and other regulatory bodies to go much farther, and begin publicly reporting ‘cautions.’ Cautions are remedial, in that they are intended to correct a problem in a professional’s practice. Cautions are not legal findings of professional misconduct.
Would publicly reporting cautions help protect patients from medical errors, or could this practice have unintended consequences that might undermine patient safety?
Ontario’s self-regulated health professions
Doctors in Canada are a self-regulated profession, meaning that the profession itself is responsible for ensuring that doctors meet professional standards of competence and conduct, in order to protect the public from incompetent or unethical practitioners.
Self-regulation is used in many parts of the world to govern professions that possess unique combinations of knowledge and skills, which make effective external regulation difficult.
In Ontario, there are 21 self-regulated health professions, including nurses, pharmacists, and dentists. Each of these professions has their own regulatory college, which are responsible for establishing and enforcing professional standards for their members, ensuring their members meet training and educational standards of the profession, and investigating complaints against members.
The central mandate of all of Ontario’s regulatory colleges is to serve and protect the public. All of these regulatory colleges operate under Ontario’s Regulated Health Professions Act.
All self-regulated health professions in Ontario are required to have a complaints and discipline process in place to investigate complaints from both the public and other members of the profession. Some of the colleges also have active quality assurance processes, such as inspections for pharmacies and Out-of-Hospital Premises.
Complaints and Discipline at the CPSO
When complaints are made against doctors (either by patients or by other health professionals), they are investigated by CPSO staff. The findings from these investigations are then presented to the CPSO’s Inquiries, Complaints and Reports Committee, which is made up of doctors and government appointed public members. This committee’s hearings are not public.
If the committee finds that a doctor’s conduct or care provided was appropriate, it will take no further action. However, if it finds that the complaint has merit, it has several options.
One option is to issue a caution, if the committee believes a doctor would benefit from some advice or direction about future conduct. The caution can be in writing or the committee may require the doctor to appear in person to be cautioned, in order to discuss steps the doctor must take to avoid future problems. Doctors who are cautioned in person are usually expected to prepare for the meeting by making practice changes or reviewing relevant medical literature.
The committee may also choose to direct the doctor to participate in training or educational programs to improve his or her practice. If the doctor is believed to be suffering from a health condition that impacts his or her ability to practice medicine, the committee will refer the doctor to a special panel for assessment.
Particularly serious complaints are referred by the Inquiries, Complaints and Reports Committee to the CPSO’s Disciplinary Committee. This committee is made up of both doctors and public members. Unlike the proceedings of the Inquiries, Complaints and Reports Committee, the Disciplinary Committee’s decisions are public and posted on the CPSO’s website.
Disciplinary Committee hearings are adversarial, with each side represented by lawyers. If the committee finds that a doctor has committed an act of professional misconduct or is incompetent, it can revoke or suspend the doctor’s license to practice medicine, or impose terms, conditions or limitations on the doctor’s practice. In cases of professional misconduct the committee may also issue reprimands and fines up to $35,000. In cases of sexual misconduct, it may further require a doctor to cover the costs of counseling and therapy for the patient.
Protecting the public from medical errors
“Every doctor makes mistakes,” says Brian Goldman, an emergency room doctor and host of CBC Radio’s White Coat, Black Art who has called for greater openness around medical errors. “We don’t discover or disclose the vast majority of mistakes that happen around us every day,” he continues, “but anyone who says they don’t make mistakes is living in dreamland.”
The obvious and serious concern for patients is that when doctors make mistakes, it is patients who suffer. Patients want to be able to know if their doctor is deficient in some way, so that they can make an informed decision about whether to see the doctor or seek medical care elsewhere.
In the case of very serious clinical errors and abuse of patients this is possible; because the CPSO’s disciplinary process is public. However, in the case of less serious errors, there is currently no way for a patient to know if their doctor has been cautioned in the past. Nor is there currently any routine follow-up by the CPSO after a caution is issued to verify whether a doctor has made changes to his or her practice.
For very minor errors that posed no danger to a patient, this may be of no consequence, but “if there is an egregious action by a doctor that didn’t reach the threshold for the Discipline Committee,” asks Gerace, “should there be an ability of the public to know that? Maybe there should.”
The role of cautions
While decisions by a regulatory college’s Disciplinary Committee can result in sanctions, such as the revoking of a doctor’s license to practice, cautions are designed to be educational, rather than punitive. They are not used in cases of intentional wrongdoing, but only when the CPSO believes an unintentional mistake has been made. “They’re designed to tell doctors how they should handle issues of a similar nature in the future,” says Gerace.
The advantage of cautions is that an educational approach allows complaints to be addressed relatively rapidly (most complaints take between three and ten months, versus disciplinary actions which can drag on for much longer); with an emphasis on ensuring that the error is not repeated in the future.
“Obviously there’s a question about when that education should be public knowledge… but it’s disappointing that what we’re hearing [from the media] is just ‘make cautions public,’” says Gerace. “This doesn’t even begin to speak to the complexity that should go into making a decision like this.”
The government agrees. Zita Astravas, a spokesperson for Ontario’s Minister of Health Deb Matthews, says “the minister has asked the colleges to continue to review their policies to find places where transparency can be increased, but she has not requested the colleges make cautions public.”
“Cautions are a valuable educational tool for the colleges,” she says, and the minister recognizes that “any changes should be very carefully considered.”
“Unintended Consequences” of reporting cautions
Goldman believes that public reporting of cautions is not an effective way to improve patient safety. “There is a certain segment of the public who has a thirst to name, blame and shame,” he says, “and they think that this somehow demonstrates to us that the system is safer. But it doesn’t work that way.”
Goldman believes that “naming and shaming is not a recipe for improving the system.” Instead, he argues “we need to get doctors to talk more openly about their mistakes in real time… that’s how you reduce errors.”
Goldman’s concern is that publicly reporting cautions will have “unintended consequences.” Chief among these is transforming an educational experience into a legal process. “If the consequence of a caution is going to become a loss of professional reputation, then doctors are going to fight it. They’ll lawyer-up and the process will grind to a crawl.”
But more important for Goldman is that “if the consequence of talking about medical errors is naming and shaming, then no one is going to talk about medical errors. We won’t get any better.” In his view, doctors must promote a culture of openness, not reinforce a culture of silence.
There is some evidence to back up Goldman’s concerns. In 2011 the state of Utah introduced financial penalties for medical errors and preventable hospital acquired infections. In the year that followed only 17 medical errors were reported in the entire state (down from 81 the year prior). Since it is estimated that between 40,000 and 98,000 medical errors occur every year in the United States, many in the medical community believe Utah’s health care professionals have simply stopped reporting errors. There is also research that suggests similar punitive policies in other states for preventable infections had no effect on the actual rate of preventable infections.
If Goldman is right, the public reporting of cautions may have little effect on actual error rates, and could result in the exact opposite of what it is meant to achieve: less transparency, not more.
Following up on serious and serial cautions
One option to preserve the confidentiality of cautions, while enhancing patient confidence in the system, would be for the CPSO to introduce a follow-up system for doctors who receive serious or multiple cautions.
The CPSO does not currently do routine follow-up on cautions to ensure changes have been made to a cautioned doctor’s practice. The college does occasionally follow-up in the case of written cautions, but this is not common practice according to Kathryn Clark, Senior Communications Coordinator for the CPSO.
From the patient standpoint, the lack of routine follow-up for serious cautions raises concerns that doctors may repeat past mistakes. While following up on every caution issued could be prohibitively expensive and likely unnecessary (not all cautions involve risk to patients), following up on cautions that involve significant risk to patients may be a way of avoiding the chilling effect Goldman describes, while assuring the public that cautioned doctors have taken adequate steps to correct any deficiencies in their practice.
Striking a balance between transparency and quality improvement
To date, much of the evidence on reducing errors points towards the effectiveness of system improvements combined with education, rather than punishment of health professionals.
There are clearly areas where the CPSO and other regulatory colleges can and should make rapid improvements in transparency, with the CPSO’s recent bylaw change regarding inspection results of Out-of-Hospital Premises as a perfect example. The challenge for the regulatory colleges as they consider whether to make some cautions issued to individual practitioners public will be to strike a balance between the rights of individual patients to make informed decisions in selecting their health care providers, with the public’s interest in having a healthcare system which progressively reduces the risk of errors as much as possible.