CPSA Complaints and Discipline: What You Should Know as a Doctor

The practice of medicine is a demanding career path and a subject of stringent standards in licensing, professionalism, and ethics.

The public places great expectations and trusts in doctors, and given the sensitive nature of the patient-physician relationship, it is not uncommon for a medical practitioner in Alberta to receive a complaint filed against them with the College of Physicians and Surgeons of Alberta (the “CPSA”).

In fact, during the 2023 fiscal year, the CPSA received 867 complaints. Considering the total number of regulated members of the CPSA was less than 14,000 that year, it is fair to say a medical professional is likely to face regulatory scrutiny at some point in their career, even if they have at all times diligently conducted themselves to high professional and ethical standards.

As a doctor, you are probably accustomed to stress and challenges, but the disciplinary process of CPSA might prove to be one of the most challenging situations during your career. This article presents some of the essential information you should know if you are undergoing or expecting a CPSA regulatory action.

This article is for informational purposes only. CPSA discipline has legally binding effects and can result in severe financial, career and reputational consequences. The disciplinary procedures engage your legal rights, and defending against an allegation often involves both legal and procedural complexities. Hence, it is highly recommended that you retain legal counsel instead of facing a disciplinary action alone.

The regulatory action legal team of Taylor Janis provides tailored legal services to all doctors and physician assistants across Alberta. For any legal questions, contact our Edmonton or Calgary office today to schedule an initial consultation.

The CPSA has Statutory Disciplinary Powers

Who Can the CPSA Discipline?

Under the Alberta Health Professions Act (the “Act”) and its accompanying Physicians, Surgeons, Osteopaths and Physician Assistants Profession Regulation, the College of Physicians and Surgeons of Alberta is the regulatory college that regulates physicians, surgeons, osteopathic physicians and physician assistants in the province. Therefore, if you are a physician assistant facing potential discipline, the rest of this article will largely apply to you, too.

What Are the Disciplinary Measures Available to the CPSA?

The Act confers on medical practitioners the privilege to self-regulate. Hence, the CPSA has broad powers and discretion in making disciplinary decisions with direct or indirect legally binding effects on its regulated members. Upon determining that a regulated member has committed unprofessional conduct, the CPSA Hearing Tribunal may order one or more of the following:

• A caution or reprimand;
• Imposition of conditions and/or restrictions on their practice permit;
• Suspension of their practice permit temporarily or until certain conditions are satisfied;
• Requiring them to satisfy competence requirements;
  • They may be required to receive counselling or treatment programs, complete specific courses of study, or obtain supervised practical experience within a fixed period, during which the practice permit may be suspended.
• Cancellation of their registration and practice permit;
• Repayment of improper fees received from the complainant;
• Recovery of certain expenses incurred during the disciplinary process from the regulated member;
• A fine not exceeding $10,000 for each finding of unprofessional conduct and not exceeding $50,000 for the aggregation of all unprofessional conduct found at one hearing; and                          
• Any other order deemed appropriate for the protection of the public.

Notably, adverse disciplinary decisions can result in legal consequences beyond the sanctions listed above.

• As a regulatory college, the CPSA have a degree of discretion to appropriately “customize” somewhat novel disciplinary measures to protect the public.
• The College can also remain “seized” with a disciplinary matter, meaning it may order further discipline, commence debt actions or apply for injunctive court orders if an initial order was not complied with.
• Where a hearing raises a reasonable belief that a criminal offence has been committed, the written decision by the Hearing Tribunal must be forwarded to the Minister of Justice, thus opening up a potential for further legal liabilities.

Adverse Discipline Decisions Are Profoundly Damaging

An adverse disciplinary decision by the CPSA can cause not only direct financial and career detriments, but also severe disruption to your medical practice and long-lasting and widespread reputational damage.

It is easy to see a fine or suspension of a practice permit as a direct financial or career setback. But even a seemingly “lesser” discipline can be profoundly damaging. For example, a requirement to receive additional training or supervision until the CPSA is satisfied with your competence can be highly onerous and disruptive to your practice.

Moreover, long-lasting and irrecoverable reputational harm may occur. Under the Act and CPSA Bylaws, a finding of unprofessional conduct must be published on the CPSA website, where it will normally remain accessible for ten years or indefinitely accessible if it concerns sexual misconduct or results in the cancellation of registration. Moreover, information related to a disciplinary suspension, cancellation or condition imposed on a practice permit must be forwarded to the disciplined doctor’s employer and out-of-province regulators for the medical profession.

It is also important to bear in mind that the reputational harm may start to form even before a decision is eventually made, as the disciplinary process is substantially transparent to the public, as we will discuss in the disciplinary process section of this article.

Assess and Mitigate the Risks with Legal Advice

CPSA disciplinary measures have legally binding effects and can result in severe financial, career and reputational consequences. Regulatory actions are intricate, and the parties’ perspectives often diverge. Even a seemingly unfounded or trivial allegation can expose you to serious risks.

Hence, you should tread carefully if you are under the CPSA’s regulatory scrutiny. You should retain an experienced lawyer to assess and mitigate potential risks, regardless of the seeming likelihood of being disciplined. Having legal counsel also shows that you are attentive to the situation, and this may discourage a meritless matter from being processed further.

Taylor Janis Workplace Law is committed to providing transparent legal advice. If the risk is substantial, we can provide thorough legal representation. If the risk is minimal, our advice can give you the peace of mind. If you have any questions or concerns about an impending regulatory action, contact us at our Edmonton or Calgar office today to schedule an initial consultation.

The CPSA Disciplinary Process: Public, Intense and Disruptive

The disciplinary process of CPSA involves procedures that are complex and largely transparent to the public. This is because fair and transparent procedures are necessary for achieving fair outcomes and protecting the interests of both the public and the medical profession. At the same time, these procedures can also be highly intimidating and disruptive to a doctor’s professional and personal life.

Complaints

Any person can file a complaint with the CPSA against its regulated members, and the CPSA can initiate a disciplinary action on its own motion if it has reasonable grounds to believe a regulated member has committed unprofessional conduct.

Moreover, under certain circumstances, an employer or fellow doctors of a CPSA member have a positive duty to report to the CPSA about their concerns regarding unprofessional conduct.

Therefore, a complaint or disciplinary process does not necessarily arise out of a physician-patient relationship.

The CPSA Complaints Director may only dismiss a complaint if it is vexatious, frivolous or lacks factual merit. Otherwise, they must initiate an investigation or facilitate an investigation.

Investigations

An unresolved/ unresolvable complaint will result in an investigation. During an investigation, you have a duty to cooperate, but also a need to avoid inadvertently jeopardizing your case.

The investigated person will normally be notified of the particulars of the allegation and may be required (or be under court orders) to answer questions under oath, and/or to disclose information and/or evidence relevant to the investigation. Moreover, the investigator may also enter the investigated person’s premises for medical practice. Under certain circumstances, an investigated person’s practice permit may be temporarily suspended or have conditions imposed.

Hence, an investigation can be highly intrusive and disruptive to the investigated person’s medical practice and even personal life.

When an investigation is eventually completed, unless the complaint is dismissed for being trivial, vexatious or factually meritless, the investigated matter will be referred to the CPSA Hearing Tribunal.

When under investigation, legal advice is strongly recommended. Legal counsel can play a vital role in helping you avoid potential legal pitfalls while remaining cooperative and in preparing a robust response that may lead to an expedited resolution.

Hearings by the Hearing Tribunal

A hearing would normally be scheduled within 90 days after a complaint has been referred to the Hearings Director. However, the notice to attend and particulars about the subject matter can be given as late as 30 days before the hearing, giving a limited time to prepare for the hearing.

A hearing is a quasi-judicial and adversarial proceeding, where both parties (the Complaints Director vs. the investigated persons) have a statutory right to counsel. A decision will be based on the relative strength of the parties’ factual and legal submissions. An investigated person may be ordered to testify and be examined (i.e. scrutinized by questions) under oath, and a failure to cooperate may result in severe legal consequences. Hence,

Moreover, a hearing is presumed to be open to the public unless one of the limited legal exceptions requires it to be held in private in part or entirely. Hence, a hearing can have profound reputational consequences, especially if the investigated person is underprepared or acts in ways that prejudice themselves during a hearing.

A hearing can be a formidable challenge requiring extensive preparation, and Legal representation can be crucial to achieving a favourable verdict.

Appeals

If an investigated person believes a hearing decision is biased or procedurally or substantively unfair, they can appeal the decision to the CPSA Council, and they can further appeal the CPSA Council’s decision to the Alberta Court of Appeal.

However, an appeal should be seen as a last resort, and the preferred approach is to engage legal representation early and secure a favourable outcome at the outset.

• It is a monumental task to have a disciplinary decision overturned, as the appellate standards are high and courts are required to be deferential to statutory regulators following the Vavilov decision of the Supreme Court of Canada. The next section of this article will discuss the appellate standards in more depth.
• An appeal does not automatically suspend the enforcement of a disciplinary order. Moreover, even if an appeal is successful, the remedy might be that the matter is sent back to be redetermined. Hence, whilst you are dealing with the complex appeal procedures, the damages of an adverse decision may continue to irreversibly manifest in the background.
• The appeal proceedings are not a rehearing of the alleged facts, and generally, you are not allowed to submit additional evidence to defend against the alleged professional misconduct. Instead, the Council or the Court are only reviewing the fairness of the decision.

If an appeal becomes necessary, the value of legal representation is eminently clear. However, you should not leave legal advice until after a disciplinary decision is made. When facing CPSA disciplinary challenges, the preferred approach is a proactive one. You should retain legal counsel early to secure a favourable outcome at an early stage.

Voluntary/ Alternative Resolutions

There are alternative ways to resolve a complaint other than going through the entire hearing process.

• Before a complaint is referred to the Hearing Tribunal, the Complaints Director may refer the matter to an alternative complaint resolution process. This is a voluntary process similar to a mediation, through which the complainant and the investigated person can reach a voluntary settlement.
• Before the Hearing Tribunal makes a factual determination regarding the alleged unprofessional conduct, the investigated person may admit some or all of the allegations. If accepted, such an admission can substantially shorten the fact-finding phase of the hearing.

However, decisions regarding these should NOT be made hastily without legal advice, because:

• A settlement agreement is normally legally enforceable. Hence, you need to ensure that its terms and conditions are fair and reasonable to you, considering all relevant factual and legal factors.
• An admission of unprofessional conduct does not conclude the disciplinary process, as a hearing may be necessary to determine the appropriate disciplinary measures. The disciplinary decisions based on an admission are subject to the same public notification policy and requirements as any other disciplinary decisions.
• An admission of unprofessional conduct will largely prevent you from appealing a decision on grounds of erroneous fact-finding.

A voluntary settlement or admission may be advantageous under the right circumstances, but it is a strategic and consequential decision. Before making such a decision, you should have your lawyer comprehensively review your case first.

Avoid Legal Pitfalls

A disciplinary process can be intensely stressful and disruptive to your medical practice, as you will inevitably have to divert your attention from your practice to respond to it. Moreover, under certain circumstances, your ability to practice may be curtailed by conditions or even suspension imposed on your practice by the CPSA.

Notably, the reputational effects can start to emerge even before a hearing decision is made. Under the CPSA Bylaws, information about an ongoing disciplinary procedure will be published on the CPSA website. And if the hearing decision is adverse, the reputational damage may become irreversible, widespread and long-lasting.

You have a duty to cooperate with an investigation, but you also need to avoid inadvertently jeopardizing your case. Similarly, you need to avoid settling a defensible case on unreasonable terms.

The value of skilled legal representation is eminently clear when a disciplinary procedure is underway or emerging. A lawyer can help you navigate the complex procedures and streamline the process where possible, thus minimizing detrimental effects. They will also alert you about legal pitfalls and give reasonable recommendations where an alternative resolution is preferable.

The skilled lawyers at Taylor Janis Workplace Law are not only tenacious advocates but also resourceful problem solvers. Do not hesitate to contact us if you are expecting or undergoing a CPSA disciplinary process.

*The procedures cited above may vary if the alleged unprofessional conduct is related to the incapacity of the regulated member, sexual misconduct, or the procurement or performance of female genital mutilation.

Discipline Decisions: Rules, Facts and Advocacy

Undergoing the disciplinary procedures is a stressful and testing process, and defending against an allegation can be particularly challenging without legal counsel. This is because the rules governing medical practitioners are complex, the facts and applicable rules are often intensely disputed, and there are nuanced factors to be considered by the adjudicators. Under such circumstances, skillful advocacy may be necessary to ensure a favourable outcome.

The Rules Are Complex and Nuanced

In short, disciplinable unprofessional conduct under the Act includes:

• Displaying a lack of knowledge, skill or judgment when practicing medicine;
• Contravention of applicable enactments, code of ethics or standards of practice;
• Practicing medicine without an appropriate practice permit or registration, or in ways contravening the conditions imposed on a practice permit;
• Non-compliance with an investigatory request or disciplinary decision of the CPSA; and
• Conduct that harms the integrity of the medical profession.

However, the descriptions provided by the Act barely paint a full picture of all the rules that may be considered by the CPSA in a disciplinary process. The rules are multi-sourced and often nuanced, and successful rule-based arguments are often made with support from common law or other legal precedents. Below are a few things that you should bear in mind:

• Multiplicity of sources of rules specifically applicable to doctors: The Act provides broad categories of unprofessional conduct, and more rules can be found in its accompanying regulations, the CPSA Bylaws, the CPSA Code of Conduct, as well as the CPSA Standards of Practice.
  • The rules found in these sources may be considered as “boundary rules”; the requirements contained therein range from detailed technical guidelines and administrative guidelines to broad overarching ethical and professional duties.
  • Legal counsel can leverage their legal knowledge and research skills to keep track of and cite appropriate rules to support a particular argument.
• Interactions with other laws: It is important to bear in mind that doctors, like anyone else, are required to observe the law at all times, and this means that when the legal rules specifically applicable to doctors interact with other sources of law, things can get particularly complicated.
  • This also means that at times, the CPSA’s adjudication over the seemingly clear-cut “boundary rules” may need to consider other legislation or common law. One example of a legal question that can be intensely disputed is: Whether the common law defence of necessity is available to a doctor who provided medical care in a potentially fatal emergency without an appropriate specialist practice permit? How their action can be assessed against the required skill and judgement can be another source of dispute.
  • Legal counsel, leveraging their advocacy and legal analysis skills, can cite legal authorities and discern their nuances to formulate a sound defence.

The Decisions Are Ultimately Based on Substantiated Facts

Other than the law, the facts are also often intensely disputed under the disciplinary procedures of the CPSA. Ultimately, a decision can only be made by applying the law to the facts, and to be more specific, facts that can be substantiated with evidence, and these present two challenges that are preferably dealt with by a lawyer:

• Both the complainant and the investigated regulated member are entitled to submit their version of facts and support them with evidence; the comparative probative value of the evidence from the parties may be difficult to discern without proper organization and presentation of the evidence. A lawyer can leverage their advocacy skills to highlight crucial evidence that favours a desirable outcome.
• The CPSA Hearing Tribunal is not bound by the rules of evidence that would apply to a court, and it has discretion in admitting evidence that would not be admissible in a court. A lawyer can identify problematic evidence and highlight issues such as irrelevance, unreliability or undue prejudicial effects. This helps reduce the chance of an unfair or unreasonable verdict.

The Importance of Skillful Advocacy and Legal Representation

Having a skillful lawyer as your advocate means more than just having someone prepare your legal and factual submissions. Advocacy also involves strategically and tactically highlighting what is relevant and what is not; in many circumstances, this can significantly enhance the chance of a favourable verdict.

Advocacy can be particularly important when the adjudicators conduct principled analysis. Given that the Act requires the CPSA to protect and serve the public interest, and one of the goals of the CPSA is to promote the reputation and integrity of the medical profession, it is not uncommon for the CPSA to engage in such analysis. A lawyer, as your advocate, can highlight factors that may shape the outcome but would otherwise be under-considered by the CPSA.

The key takeaway here is, a CPSA disciplinary decision is not made in a vacuum; instead, it should be a correct application of laws and rules on proper factual inferences based on the relative strengths of the evidence from both sides. Since the rules can be complex and nuanced, and the facts are often intensely disputed, when you are undergoing a disciplinary process with the CPSA, it is highly recommended that you have legal representation.

The Disciplinary Process Engages Your Rights

Once a CPSA disciplinary process is underway, your administrative law and common law rights are immediately engaged, and some of these rights even have constitutional gravity.

Your Rights Are Ultimately about fairness

The rights a person has when undergoing regulatory actions are ultimately based on the principle of natural justice and fairness, and to put it briefly, fairness has three major components:

• Procedural fairness:
  • Conceptually, this means you are entitled to know the particulars of the allegation against you and have appropriate opportunities to respond.
  • The procedures designed to protect your rights are found in the Act, its accompanying regulations, and the CPSA Bylaws. However, the CPSA does have a certain degree of discretion to choose and conduct procedures as they deem fit under certain circumstances.
  • The right to procedural fairness can be infringed upon when an inappropriate procedure is chosen or when an appropriately chosen procedure is performed inappropriately, establishing such claims requires both a legal and factual basis.
• Substantive fairness:
  • This means a decision and its reasoning must meet certain standards.
  • The Act provides that a final disciplinary decision made by the CPSA Council can be subject to the Alberta Court of Appeal’s appellate review, where the appellate standard is “no palpable and overriding errors” in factual findings and “correctness” in application of laws.
• Unbiased decision makers:
  • The applicable common law standard is no reasonable apprehension of bias, meaning a reasonable observer under the circumstances would not reasonably perceive bias in the decision maker’s conduct or reasoning.
  • Reasonable apprehension of bias is a question of high evidentiary and legal thresholds. Hence, if you are concerned about the objectivity of your adjudicator, you need to satisfy such thresholds to receive legal remedies.

Safeguarding Your Rights:

Your rights are engaged at all stages of a disciplinary process. As discussed above, once it is made, it is exceedingly difficult to have a decision overturned, and the detriments of an adverse decision may continue to manifest during an appeal procedure.

Therefore, the most preferable way to safeguard your rights is to have legal representation throughout the process, as they will stay vigilant and spot and object to potential issues as they arise.

The Importance of Legal Representation & Your Options

Engage Legal Representation Early

The CPSA’s disciplinary decisions against a regulated member have legally binding financial, career and reputational consequences. The disciplinary process is often complex, intense, disruptive and may result in secondary reputational implications, and when undergoing such a process, your rights are engaged every step of the way.

To successfully defend against an allegation is not an easy task; it requires both legal and practical acumen to strategically prepare legal and evidence-based factual arguments. To overturn a decision is an even more difficult task, as the standards of appeal are high.

These all highlight the importance of engaging legal representation early.

You Can Trust Taylor Janis

An experienced lawyer at Taylor Janis can tenaciously advocate for you to strategically defend your case and safeguard your rights. They can also assist you in navigating the complex process and streamline it where possible to minimize the disruption. We are also practical problem solvers who can identify reasonable resolutions without going through unnecessary proceedings or abandoning a defendable case.

Every case is different, and so are the needs of each client, which is why we always offer tailored legal service plans, and such plans always start with an initial consultation. We are well-equipped with the knowledge and acumen to provide full representation, and we are also prepared to give good-faith legal advice when a matter can be quickly resolved.

Contact Taylor Janis Workplace Law at our Edmonton or Calgary office today to schedule an initial consultation to discuss your case.

Frequently Asked Questions

Can the CPSA Discipline Me for Conduct Outside of Providing Medical Care?

This may come as a surprise, but the CPSA can potentially discipline a regulated member for conduct that arises outside of their professional life. This is because the Act does include actions that are detrimental to the public or undermine the reputation of the medical profession as a form of unprofessional conduct, as well as that the CPSA Code of Conduct does require a doctor to maintain high standards of personal honesty and integrity.

How Long Does a CPSA Disciplinary Process Typically Take?

The length of the process depends on many factors, including the nature and gravity of the complaint, the legal and factual complexity of the matter, as well as whether there are other legal and practical constraints that result in longer procedures. Hence, the entire process can take from as little as a few weeks to more than a year. It is hard to give a precise estimate without being engaged with the process. If you are concerned about the disruptive effects of the process, you should consider consulting and retaining a lawyer to expedite the process where reasonable.

Do I Need a Lawyer for Minor CPSA Complaints?

Even when a complaint is seemingly trivial or unfounded, it is still a good idea to at least talk to a lawyer first. A lawyer is equipped with the legal knowledge and research skills to assess the actual strength and gravity of a claim and can more accurately assess the potential risks. Having a lawyer on your side also shows that you are taking the situation seriously and are prepared, which may help resolve vexatious or meritless complaints early, thus minimizing the disruption and stress. If a complaint is truly unfounded, at least you get peace of mind knowing the risk is minimal after a consultation with a lawyer.

Can Evidence from CPSA Disciplinary Proceedings Be Used in Other Legal Proceedings?

The short answer is: It depends. The alternative complaint resolution process between a regulated member and a complainant is bound by voluntary confidentiality. Hence, any record of this process (apart from a settlement agreement) cannot be used in future legal proceedings without the parties’ consent, except that information relevant to sexual misconduct or the performance or procurement of female genital mutilation will be forwarded to law enforcement.

Other proceedings are not confidential. Records arising from each proceeding may be used in a future one if they are otherwise admissible under relevant evidence rules. Moreover, the CPSA must forward relevant information obtained through a hearing to the Minister of Justice if there are reasonable and probable grounds to believe the regulated member has committed a crime. Hence, you should be extra cautious with your conduct during a proceeding, ideally with legal representation.

I Am No Longer Registered with the CPSA. Do I Need to Respond to a Complaint Filed against Me?

As a former member, you may still be disciplined by the CPSA, but there is one caveat to this. According to the Act, A complaint cannot be filed against a former member of CPSA whose membership has ceased for more than 2 years. Otherwise, the complaint against a former CPSA member will be processed in the same way as a regular complaint, and you should be prepared to respond to such complaints.

Conclusion

A CPSA disciplinary action can have high legal consequences that affect your finances, career and reputation, and early effective legal representation can be key in achieving an early, favourable resolution. Taylor Janis Workplace Law can assist you in maneuvering through the procedural complexities, formulating a strategically sound defence, and facilitating reasonable resolutions where possible.

Please do not hesitate to contact us at our Edmonton or Calgary office today. Whether you are undergoing a disciplinary process or expecting one, Taylor Janis Workplace Law looks forward to helping you through this testing time.

References:

• Health Professions Act, RSA 2000, c H-7
• Physicians, Surgeons, Osteopaths and Physician Assistants Profession Regulation, Alta Reg 200/2020
• College of Physicians & Surgeons of Alberta Bylaws
• CPSA Code of Conduct
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• 2023 Annual Report, CPSA

References:

• Discipline decisions published by the CPSA
• CPSA complaints portal

PRIVACY NOTICE:  Any information you provide to our office — whether your personal information or employment/employer details — will be treated as strictly confidential and will not be disclosed to your employer or to any other third party. So, please be reassured that you can talk openly to our capable Intake Paralegals worry free. Fill out an Online Inquiry or call us now, your information will be in safe and helping hands.

The Legal Review Process by Taylor Janis Workplace Law

• Taylor Janis strives for high-quality, legally verified content.
• Content is meticulously researched and reviewed by our legal writers/proofers.
• Details are sourced from trusted legal sources like the Employment Standards Code.
• Each article is edited for accuracy, clarity, and relevance.
• If you find any incorrect information or discrepancies in legal facts, we kindly ask that you contact us with a correction to ensure accuracy.