The doctor’s lawyer: the “voluntary leave of absence” trap, and how the cpso fixed it
PUBLISHED: The Doctor’s Lawyer: The ‘voluntary leave of absence’ trap, Medical Post, Canadian Healthcare Network, July 22, 2024.
The College of Physicians and Surgeons of Ontario (“CPSO”) has made a significant change to its General Bylaw. The change is good for hospital-based doctors. It helps physicians avoid getting bullied into a “voluntary leave of absence”.
What happened?
The typical scenario: you are a hospital physician with the usual privileges. But you find yourself on the wrong side of your hospital leadership. Your Department Chief comes to you and says, “the hospital has concerns about your practice.” They give you a choice: take a “voluntary leave of absence” while you sort out their concerns, or the hospital will move to suspend your privileges under the hospital bylaw.
You know that if the hospital moves to suspend you, you are entitled to a hearing before the Medical Advisory Committee (“MAC”) (and then a hearing before the Hospital Board, and then an appeal to the Health Professions Appeal and Review Board). You do have the right to defend yourself. But, if you don’t agree to the “voluntary leave of absence”, the hospital says it will invoke the interim suspension provisions; which means you will be suspended pending the MAC hearing. If you lose at the MAC, you will remain suspended (or possibly revoked).
You are then informed that if you are suspended (even on an interim basis), that suspension will be posted to your public profile on the website of the CPSO! So much for the presumption of innocence.
You also can’t resign or relinquish your privileges, either. When you do so in the face of concerns regarding your competence, that resignation would also be posted to your public CPSO profile.
As a result, to protect your professional reputation and avoid publication of a potential suspension on the College register, you decide to forfeit your right to a hearing, and opt for a “voluntary leave of absence”. But, once you are on that “voluntary leave of absence”, you are, effectively, in hospital purgatory: the hospital holds all the power and it gets to dictate, if, when, and how you return from that “voluntary leave of absence”.
Why did this happen? It happened because Section 49(1).12 of CPSO General Bylaw, historically, required the following to be posted to a physician’s public CPSO profile:
- The identity of each hospital in Ontario where the member has professional privileges, and where known to the College, all revocations, suspensions, restrictions, resignations and relinquishments of the member’s privileges or practice, and rejections of appointment or reappointment applications, reported to the College by hospitals under section 85.5 of the Health Professions Procedural Code or section 33 of the Public Hospitals Act, but excluding voluntary leaves of absence by members, in each case commencing from the date the relevant portion of this by-law goes into effect. [emphasis added].
What does this mean?
In other words: if you challenged hospital leadership, and they suspended you, that suspension would have been posted to your public profile. If you wanted to resign and walk away? You couldn’t without that resignation also being posted to your public profile. Damned if you do; damned if you don’t.
But there was a significant exception in this provision: “voluntary leaves of absence”, were not posted to a physician’s public CPSO profile. This gave a hospital tremendous leverage.
This exception meant that a hospital could pressure, or dare I say bully, a physician into a “voluntary leave of absence”, because the physician was too afraid to challenge the hospital and risk a suspension being posted to their public profile – with the inevitable indelible besmirching of one’s professional reputation.
It was also nearly impossible for a physician to develop and exit strategy: how could they find somewhere else to go, with a black mark on their public profile?
The previous provision in the CPSO General Bylaw gave hospitals overbroad and disproportionate power over a physician’s life: they couldn’t stay, and they couldn’t go, and in the meantime, they were out of work. It also resulted in a physician being publicly tarnished as “guilty”, before any hearing, or even investigation.
As defence counsel, one of the most frustrating elements I faced was the injustice; physicians were afraid to exercise their rights.
The CPSO has, thankfully, fixed that. The CPSO amended its General Bylaw in March 2024. Now, Section 49.(1)12.1 requires the public reporting of only:
12.1 All revocations of the member’s hospital privileges at hospitals in Ontario reported to the College by hospitals under section 85.5 of the Health Professions Procedural Code or section 33 of the Public Hospitals Act. [emphasis added].
In other words: suspensions and resignations of hospital privileges are no longer posted to your public CPSO profile. Under this provision, only revocations are posted.
The bottom line
This change in the CPSO General Bylaw, rightfully, puts a little bit of power in the hands of physicians. The playing field has been levelled to some extent. Until now, hospitals could scare physicians into a “voluntary leave of absence” with the simple threat of a suspension. Now, physicians can exercise their rights to a hearing without the fear that a possible suspension would be posted to their public profile. It also means that physicians can resign their hospital privileges, if they prefer to walk away from the hospital all together.
The bylaw change will also, hopefully, hold hospitals accountable, at least a little bit. Now that physicians don’t need to be afraid to challenge the allegations before the MAC, for fear of a possible suspension being posted to their public profile, hospital leadership will need to think twice before threatening physicians with unfounded or weak cases.
This is a major move by the CPSO, and certainly in keeping with “right touch regulation”.
