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VOICES ON HEALTH-CARE CONCERNS AND ACCOUNTABILITY
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TABLE OF CONTENTS

INTRODUCTION………….…………………………………………………………………1
PURPOSE…………………………..…………………………………………………………2
POSITION……….……………………………………………………………………………4
CONCLUSION……………………………………………..…………………………...……8

APPENDIX A
Selected CPSO investigations and referral to discipline statistics.

APPENDIX B
Kluge, Eike-Henner W.,  "Informed consent in a different key: physicians' practice profiles and the patient's right to know", Canadian Medical Association Journal, 4 May 1999, 160(9), 1321-1322.

APPENDIX C
Belza, George S.,  "Professional Ethics - Self-Regulation: Physicians and Surgeons", York University Centre for Practical Ethics, 1 August 1996 (updated to 1 May 1998), as edited by HPRAC for public examination on HPRAC's website, www.HPRAC.org.
 

VoHCA

VOICES ON HEALTH-CARE CONCERNS AND ACCOUNTABILITY
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INTRODUCTION

Three Kingston area residents, each of whom had experienced personal tragedy involving shocking medical malpractice, formed VoHCA in March 1998.  The aim of the original group, initially named "Victims of Health Care Abuse", was to join with like-minded individuals throughout Ontario, and subsequently across Canada, to promote systemic reform in the provision of health care to the public.

At the time, it was not clear to the founder members how widespread incidents of medical malpractice really were.  To get some indication, and to learn of other people's adverse health-care experiences, a small advertisement was placed in a local Kingston newspaper.  It produced a remarkable response.  A meeting followed, attended by about 20 persons.  Since then, hundreds have joined our organisation.

Using the same acronym but re-named "Voices on Health-care Concerns and Accountability", VoHCA now has active Chapters in both Kingston and Toronto, and representation throughout Canada.  Members have two things in common.  All have suffered serious health impairment or the tragic loss of a loved one through culpable medical mistakes and incompetent or negligent health care.  All want the regulatory system to be improved.

Although, VoHCA did not request attention from the media, extensive coverage from CBC national television and radio, national magazines and provincial newspapers soon followed.  This in itself strongly suggests that both quality and governance of health care in Canada are under scrutiny and will increasingly become issues of great concern to the public.

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PURPOSE

VOHCA's mission is to act as a voice of patients across Canada in order to:

provide support for patients and their families who have had, or are having, problems with the health-care system;

work with government and health-care providers to promote meaningful public accountability;

supply appropriate information to better allow patients to make informed choices about their own health-care.

To further this mission, VoHCA undertook the task of surveying its members.  We wished to prioritise the problems needing to be addressed.  Lack of meaningful accountability emerged as a major concern.  This was particularly the case in Ontario, and especially with regard to the disciplinary process at the College of Physicians and Surgeons (CPSO).  Out of the scores of complaints registered with the CPSO by our members, to date not one has been dealt with satisfactorily.

Subsequent VoHCA enquiries indicate that this perhaps is not surprising.  Significantly, of the thousands of complaints investigated each year by the CPSO, only an extremely small number ever result in disciplinary proceedings despite the prevalence of medical malpractice.

These troubling statistics are not unknown.  Members of the public have indeed brought them forward previously.  For example, the Minister of Health has referred a citizen's letter on this topic to HPRAC for consideration as part of this RHPA Review.  Another member of the public, whose baby daughter died under tragic circumstances, has successfully campaigned alongside VoHCA within the last year, relying in part on such data, to convince the Minister of Health to mount an independent review of the CPSO's handling of complaints and discipline.
Additional evidence of the College's failure to process complaints appropriately (and to follow through on findings) in just the narrow area of sexual abuse is provided by recent newspaper articles.  In our view, however, as grave as the sexual abuse issue may be, it is just the tip of the medical malpractice iceberg.

In other words, VoHCA has come to realise clearly that medical malpractice as a whole is a problem of immense proportions, largely invisible to the public, and one which the regulatory system in its current form fails to address in a meaningful way.  The tragic experiences of many VoHCA members only serve to reaffirm this and put a human face on a shocking and wholly unacceptable situation.

Consequently, VoHCA has carefully reviewed HPRAC's document "Weighing the Balance" with the reality of such medical malpractice as a backdrop.  We have also kept in mind the often heart-breaking, personal experiences of VoHCA's Ontario members and their concerns, in particular but not exclusively, with:

· poor performance of the present system in dealing with complaints over incidents causing harm, up to and including death;

· inadequacy of follow-up and corrective actions;

· the self-serving nature of the present self-regulated system, resulting in unfairness to complainants;

· use of a non-transparent Alternate Dispute Resolution (ADR) process fraught with the potential to avert attention from systemic problems.

In keeping with VoHCA's mission, we have developed our position accordingly.

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POSITION

VoHCA believes that substantive reform to the Regulated Health Professions Act and allied legislation is urgently required along the lines suggested in the following public documents:

"Informed consent in a different key: physicians' practice profiles and the patient's right to know" published in the Canadian Medical Association Journal (CMAJ) in May 1999.

This CMAJ article is reproduced as our Appendix B.  It presents background information on one aspect of our submission dealing with practice profiles.

In the above article, Professor Kluge of the University of Victoria discusses the use of practice profiles in other (non-Canadian) jurisdictions.  Such practice profiles provide relevant information about the qualifications and track records of individual health professionals and hospitals in a form readily obtainable by patients via telephone, the Internet or automated fax-on-demand.  Professor Kluge presents a clear, moral justification for such disclosure on the basis of informed consent and public accountability.  His argument is compelling and worthy of serious consideration.

"Professional Ethics - Self-Regulation: Physicians and Surgeons" referred by the Minister of Health to HPRAC for comprehensive consideration as part of the RHPA Review.

This referral paper, as edited by HPRAC for public examination on HPRAC's website, www.HPRAC.org, constitutes our Appendix C.

We believe the referral paper is authoritative and credible.  It is a public document of significance and, although it was developed independently prior to VoHCA's formation, it reflects much of VoHCA's viewpoint.  It forms a substantive part of our submission.

For example, the referral paper clearly points out the lack of effective accountability and governance in our health care system.  The case histories, the detailed case study involving medical malpractice, and the references that are presented, all support the argument that serious deficiencies in this area exist.  The paper also quantifies the horrendous human toll incurred as a consequence of this systemic failure. The numbers are shocking.  Supported by well-documented references, the referral paper indicates that more than 5,000 deaths or serious impairments occur in Ontario every year from medical malpractice (more than 12,000 from medical mishap and malpractice combined).  This cannot be ignored.

The referral paper, however, goes further.  It not only presents compelling arguments regarding the necessity for significant change, it also proposes remedies.  In fact, the referral paper proposes a comprehensive set of some 39 statutory and 14 regulatory remedial reforms.  As stated in the referral paper's first (introductory) section, the overall thrust is to:

· correct legislative deficiencies;

· enhance the fairness and efficacy of procedural mechanisms;

· ensure transparency (and encourage public scrutiny) of the disciplinary process;

· provide for the right of judicial appeal by complainants on questions of law and fact;

· place regulatory control of physicians and surgeons - and by implication other health professionals - firmly in the hands of public members appointed by the Lieutenant Governor in Council rather than in the hands of doctors elected by their colleagues.

In our view, the proposed amendments presented in the referral paper have considerable public interest merit. All are aimed at improving the RHPA and its allied legislation in the greater interest of society as a whole.

Accordingly, VoHCA adopts and incorporates into its submission the conceptual proposals in the Kluge CMAJ article and the detailed content of the Belza referral paper, subject to the following qualifications and additions:

Mandatory provision of practice profiles for all health professionals and for each health care facility, in a like manner as presently is the case in the State of Massachusetts, as well as a number other U.S. jurisdictions.  The practice profiles would provide relevant information about the qualifications and track records of individual health professionals and hospitals in a form readily obtainable by patients via telephone, the Internet or automated fax-on-demand.

In addition, VoHCA submits that:

All health professionals ought to be required to report the initiation and disposition of all medical and legal claims against them to the Colleges, in each instance forwarding copies of both the statement of claim and the judicial decision, settlement or abandonment thereof.

All hospitals ought to be required to make similar reports to the Health Professions Appeal and Review Board or the Ministry concerning themselves, as well as apprising the Colleges of the results of all internal disciplinary actions taken regarding health professionals in their employ or otherwise associated with them.

The Colleges, the Board and the Ministry ought to be required to include this information, at least in summary form, in public practice profiles of all health professionals and hospitals, together with any other track record information (such as the risk-adjusted results of key medical procedures) that may be helpful to patients.

Increasing the proportion of public members at all Colleges from the simple majority proposed in the referral paper to a two-thirds majority, on Council and on each Committee of Council, to ensure that the interest of society as a whole will prevail over the self-interest of the health profession.

Furthermore, the selection process for, and payment of, public members should be reformed by regulation, to provide transparency, broaden the cross-section and skill set of appointees to better represent all sectors of society, and ensure the highest possible quality of public representation on College Councils and Committees.

Clarification and enhancement of the Role of the Health Professions Appeal and Review Board (formerly called the Health Professions Board).

VoHCA submits that:

Each health professional subject to a disciplinary hearing, as well as each complainant, should have the right to unilaterally opt to have the hearing take place before a panel of the Board rather than before a panel of the College's Discipline Committee (with the complainant afforded full party status).

In cases of potential multidisciplinary malpractice (where the responsibility for medical harm may be unclear) complainants should have the right to complain directly to the Board, rather than to two or more Colleges.

Appropriate time limit provisions should be included in the Code to foster timeliness in the disposition of complaints and reviews.

Discipline and incapacity proceedings should also be subject to appropriate timeliness provisions in order to forestall unnecessary delays aimed at frustrating complainants.

Mandatory provision by all Colleges of speedy dispute resolution procedures that provide for acceptance of responsibility on a "without legal prejudice" basis, with mandatory publication of results.  In cases in which the complainant and the health care provider cannot reach a mediated resolution acceptable to both (e.g., there is material, factual disagreement or the health professional denies responsibility notwithstanding agreed upon facts), the respective statements of each are to be published and included as part of the practice profile of the health professional irrespective of subsequent disciplinary disposition of the complaint  (which is also to be published when available and added to the professional's practice profile).

Notwithstanding the above, VoHCA submits that ADR usage should be selective and used only to deal with non-critical, non-systemic problems.  Strict exclusionary criteria governing the qualification of cases for ADR should be incorporated into the legislation.  This is to ensure that, regardless of individual interests (on both sides), the public interest at large is always safeguarded.

For example, ADR should not be used in cases that clearly, or even apparently, involve malfeasance.  Likewise, ADR should not be employed to deal with similar, repetitive complaints against the same health care professional.  This list is not exhaustive and other restrictions may be appropriate.  All should aim at ensuring that the ADR process is used only when appropriate, thereby enhancing its credibility and effectiveness.

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CONCLUSION

The reforms referred to in this submission represent the minimum required for meaningful public accountability, effectiveness and fairness in the provision of health care.

These reforms are necessary since the deficiencies of the present system are blatant and of critical consequence.  In reality, the public is not being protected from harm, health care professionals are not being held accountable for their actions and the system overall is not operating in the public interest.  Self-regulation under the present legislation is too self-serving.  More transparency, more deterrence and more fairness towards the ordinary citizen are required.

This HPRAC Review, however, presents an opportunity.  Quite rightly, the review process has been built into the Act to help identify shortcomings and improvements, and to facilitate change.  It is an opportunity not to be missed.

From VoHCA's perspective, obviously we do not anticipate that our proposed reforms will single-handedly solve the horrendous "malpractice iceberg" problem previously stated.  We firmly believe, however, that the changes proposed will make a difference.  They are a step in the right direction.  Greater public accountability will result which, in turn, will help to improve the quality and governance of health care so badly needed.  VoHCA's submission has been prepared with this in mind.

We therefore present this submission in the hope and expectation that HPRAC will give our points of view and proposals the full, fair and just consideration they deserve.

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