Employer Unprofessional Conduct Reporting

CLICK HERE to download the Employer Unprofessional Conduct Reporting PDF.
CLICK HERE for the Employer Report Form.

Section 57(1) of the HPA sets out a mandatory reporting duty or employers of HPA regulated members. That section states:

“57(1)  If, because of conduct that in the opinion of the employer is unprofessional conduct, the employment of a regulated member is terminated or suspended or the regulated member resigns, the employer must give notice of that conduct to the complaints director.”

There are two critical elements that trigger the mandatory reporting obligation for employers. First, the employee must be terminated or suspended by the employer or the employee must have resigned. Second, the termination, suspension or resignation must relate to conduct that the employer has reasonable grounds to believe is “unprofessional conduct”. If both of these conditions have been met then the employer must provide a section 57(1) written notice to the College.

When reporting a termination or a practice issue to the College, employers should use the online Employer Report Form.

As a starting point, it is important to remember that the primary purpose of the HPA is public protection and ensuring that healthcare providers regulated under the HPA practice safely, competently and ethically. Section 57(1) reflects the fact that the College and employers have responsibilities in that regard.

Whether an employee’s acts or omissions are unprofessional conduct for the purposes of Section 57(1) must be determined on a case‑by‑case basis using a common sense approach. Having said that, Section 1(1)(pp) of the HPA contains a detailed definition of “unprofessional conduct”. Section 1(1)(pp) appears below in its entirety in Appendix “A”.

As well, employers can also consider the College’s Code of Ethics and Standards of Practice in assessing whether unprofessional conduct may have occurred and can also refer to their own internal policies, procedures and standards.

Significantly, Section 57(3) of the HPA contains a definition of “employment” that is much broader than the traditional definition of employment. Under this section “employment” includes “being engaged to provide professional services on a full‑time or part‑time basis as a paid or unpaid employee, consultant, contractor or volunteer”. Accordingly, “employment” under section 57 does not have to involve wages, can occur in a volunteer context and includes consultants and independent contractors.

There can be situations where a suspension (and perhaps even a termination or resignation) relates to conduct that does not rise to the level of unprofessional conduct. For example, if an employee is suspended for a half day for repeatedly failing to wear an employee identification badge the College would not expect an employer to notify the College.

In addition to the Section 5.1(1)(pp) definition in the HPA, the College takes the position that the employer reporting obligations in section 57 were intended to apply where the suspension, termination or resignation relates to unskilled or unethical practice or harms the integrity of the profession in the eyes of the public.

Given the public protection foundation of the HPA, employers may wish to err on the side of caution and to report matters to the College even where there are questions about whether unprofessional conduct may not have occurred. The College can then assess the facts and determine whether its obligations under the HPA require further steps.

Section 51(1) is silent about what information the employer must provide. The College believes that in order for section 57(1) notifications to be effective the drafters of the HPA must have intended that employers provide reasonable particulars of what occurred. Only that allows the College to properly assess the nature and extent of the possible unprofessional conduct and whether further steps should be taken. Put somewhat differently, a report to the College which simply states that “Jane Smith was suspended for one week because of failing to meet professional standards” does not allow the College to make a fair and informed decision about possible next steps and it cannot properly discharge its HPA obligations.

Typically, particulars in the reporting letter would include information about the employee’s position and job description, a detailed summary of the facts giving rise to the suspension, termination or resignation and the names of witnesses or affected parties. The notification could also include supporting documents such as the letter of termination or suspension.

The College takes the position that Section 57(1) is a statutory exception to patient confidentiality and employee privacy and that it requires disclosure by an employer (and that is reflected in various sections in the Health Information Act).

Again, Section 57(1) of is silent on this but the College believes that the public protection principles of the HPA require timely reporting as soon as reasonably possible after the suspension, termination or resignation has occurred.

Reporting in that manner allows the employer and the College to consider matters when documents and information are readily available (and have not been lost or misplaced) and when the recollections of the employee and other parties are fresh.

Section 57 does not state that an employer’s reporting obligation is conditional on union or other processes first being completed. The College believes that section 57 creates an “immediate” reporting obligation that is entirely separate from other processes relating to the same facts.

Section 57.1 of the HPA states that it is an offence for an employer to fail to provide a section 57(1) notice.  That section states:

“Section 57.1 An employer who contravenes section 57 is guilty of an offence and liable

(a)        for a first offence, to a fine of not more than $4,000,
(b)        for a 2nd offence, to a fine of not more than $8,000, and
(c)        for a 3rd and every subsequent offence, to a fine of not more than $12,000.”

As a starting point, Section 57(2) states that a report from an employer is deemed to be a “complaint” under the HPA and the employer providing the Section 57(1) notice is deemed to be a “complainant” under the HPA.

Section 55(2) gives the College’s Complaints Director significant discretion in terms of how to respond once a complaint is received. The options available to the Complaints Director under Section 55(2) are:

“Section 55(2)    The complaints director

(a)    may encourage the complainant and the investigated person to communicate with each other and resolve the complaint,
(a.1)    may, with the consent of the complainant and the investigated person, attempt to resolve the complaint,
(b)    may make a referral to an alternative complaint resolution process under Division 2,
(c)    may request an expert to assess and provide a written report on the subject‑matter of the complaint,
(d)    may conduct, or appoint an investigator to conduct, an investigation,
(e)    if satisfied that the complaint is trivial or vexatious, may dismiss the complaint,
(f)    if satisfied that there is insufficient or no evidence of unprofessional conduct, may dismiss the complaint, and
(g)    may make a direction under section 118.”

This gives the Complaints Director important flexibility to select the most appropriate step based on the facts of each complaint. Referring a matter to a hearing is the last resort and that step is only taken for the most serious conduct.

As mentioned above, an employer is deemed to be a “complainant” under the HPA.

The HPA requires that the employee (as a regulated member of the College) and the employer (as a deemed “complainant” under the HPA) be notified by the College about which action under Section 55(2) the Complaints Director has selected. The College is also required to notify the employee and the employer if an investigation is commenced, when an investigation is concluded and if a matter is referred to a hearing.

Section 1(1)(pp) of the HPA – definition of “unprofessional conduct”

“1(1)(pp)      “unprofessional conduct” means one or more of the following, whether or not it is disgraceful or dishonourable:

(i)         displaying a lack of knowledge of or lack of skill or judgment in the provision of professional services;
(ii)         contravention of this Act, a code of ethics or standards of practice;
(iii)        contravention of another enactment that applies to the profession;
(iv)        representing or holding out that a person was a regulated member and in good standing while the person’s registration or practice permit was suspended or cancelled;
(v)        representing or holding out that person’s registration or practice permit is not subject to conditions when it is or misrepresenting the conditions;
(vi)        failure or refusal

(A)        to comply with the requirements of the continuing competence program, or
(B)        to co operate with a competence committee or a person appointed under Section 11 undertaking a practice visit;

(vi.1)    failure or refusal

(A)        to comply with a request of or co operate with an inspector;
(B)        to comply with a direction of the registrar made under Section 53.4(3);

(vii)    failure or refusal

(A)        to comply with an agreement that is part of a ratified settlement,
(B)         to comply with a request of or co operate with an investigator,
(C)        to undergo an examination under Section 118, or
(D)        to comply with a notice to attend or a notice to produce under Part 4;

(viii)      contravening an order under Part 4, conditions imposed on a practice permit or a direction under Section 118(4);
(ix)        carrying on the practice of the regulated profession with a person who is contravening section 98 or an order under Part 4 or conditions imposed on a practice permit or a direction under Section 118(4);
(x)        carrying on the practice of the regulated profession of physicians, surgeons, osteopaths, dentists, chiropractors or optometrists on behalf of a corporation that does not meet the requirements of sections 104 to 115 or as a partner of a partnership that does not meet the requirements of Section 98(3);
(xii)       conduct that harms the integrity of the regulated profession;