The doctor’s lawyer: a suspension means no work
PUBLISHED: The Doctor’s Lawyer: A suspension means no work, Medical Post, Canadian Healthcare Network, February 26, 2024.
A suspension means you must close or transfer your practice, while you are under suspension. You cannot continue to benefit from the medical practice, even if you do not have patient contact during the suspension.
What Happened?
Casella v. Ontario (College of Chiropodists), 2024 ONSC 899 [“Casella”] involves a chiropodist (“the member”) who was serving a seven (7) month suspension imposed by the Discipline Committee. During the course of his suspension, he continued to work in his practice. He did not have patient contact. Rather, he sterilized medical instruments and performed administrative tasks in the clinic. He compensated himself by paying his salary, through his medical professional corporation, from patient-generated revenue. Of note, he continued to pay himself the same salary he was making before the suspension. He also failed to remove himself from his clinic website, which continued to list him as a licensed chiropodist, during his suspension.
The Discipline Committee found that the member violated his suspension by continuing to work in the practice. The Divisional Court upheld the decision of the Discipline Committee. In doing so, the court said that “the plain and ordinary meaning of suspension is a temporary removal of the member from their practice.” A member cannot continue to benefit from their practice, while on suspension, “by paying themselves a salary from patient-generated revenue.”
What Does this Mean?
Despite that this case involved a chiropodist, the same legal principles, regarding the jurisdiction of the College to discipline its members, apply to physicians. All self-regulated health profession colleges are governed by the Regulated Health Professions Act (“RHPA”). Under the RHPA, all Colleges, including the College of Physicians and Surgeons of Ontario (“CPSO”) are mandated to regulate the profession in the public interest. As the Divisional Court said, in Casella:
The College is duty bound to regulate the profession in the public interest. The question of what constitutes professional misconduct falls squarely within the bailiwick of the [Discipline] Committee.
Further, your health professional corporation is a particular kind of corporation. It is created by the Health Professions Procedural Code (“Code”), Schedule 2 under the Regulated Health Professions Act (“RHPA”). Pursuant to section 85 of the Code, your professional corporation is limited “for the purposes of practising [a member’s] health profession.” Under section 85, a physician’s professional obligations apply equally to their professional corporations. This means: if it would be professional misconduct for you to do it, it would be professional misconduct for your professional corporation to do it.
In Casella, the Divisional Court upheld the decision of the Discipline Committee that continuing to receive a salary through the member’s professional corporation, was contrary to the “intent” of the suspension order.
The Bottom Line
The CPSO has a policy statement on Closing a Medical Practice, which is the same policy that applies to physicians when they are suspended from practice. Under that policy, physicians who have their certificates of registration suspended must inform patients that:
- Standing orders for laboratory or other tests are not valid after the date of resignation, revocation, or suspension; and
- Prescription repeats/renewals written prior to the date of resignation, revocation, suspension are not valid after the date of resignation, revocation or suspension.
Following a suspension, physicians also must not interpret test results, prepare reports, or provide follow-up care. The intent of a suspension is to remove the physician, entirely, from their practice.
There is, however a caveat in the CPSO policy. Physicians can do limited administrative work, so long as that work is required to finalize an outstanding report. This work can include “editing draft reports, summarizing conclusions or signing reports completed prior to” the suspension.
The key, restrictive, words are: the report must have been completed prior to the suspension, it simply needs to be “finalized”. This is not an open door to be compensated for administrative work in your practice. The caveat is a safeguard for the continuity of patient care, not for the continuity of your salary.
The intent of the CPSO policy is to protect the public. The goal of permitting physicians to finalize outstanding reports is so that patients’ medical reports are not left in limbo. The intent of the policy is to put the patient first, not the physician. It is not an invitation to drum up work during a suspension.
Physicians must remove themselves entirely from their medical practice during a suspension. Physicians cannot do administrative work in their practices that would “undermine the deterrent effect that suspensions are supposed to have on members’ conduct.”
