Complaints and Discipline
Frequently Asked Questions
This information is for background purposes only, and is not to be retained on employee files.
What is the obligation of members to participate?
Pursuant to the Health Professions Act (HPA) regulated members of a regulatory body must comply with all requests to participate in investigations and/or hearings. The HPA defines unprofessional conduct in part as “the failure or refusal to comply with a request of or co-operate with an investigator” and “failure or refusal to comply with a notice to attend or a notice to produce under Part 4”. Participation in investigations and/or hearings is a professional obligation of all regulated members regardless of whether their conduct is the subject of the investigation, and failure or refusal to participate is in contravention of the MLT Standards of Practice and Code of Ethics. Furthermore, the HPA includes another definition of unprofessional conduct as “contravention of this Act, a code of ethics or standards of practice”.
What kind of tasks/work do they need to be prepared for with respect to participation of hearings?
In preparation of a hearing, witnesses will be contacted by the College’s legal counsel and briefed on the College’s anticipated line of questioning during the initial examination. College legal counsel will also provide the member with a copy of their statement obtained during the investigation to refresh their memory as usually a significant period of time has elapsed. The College prefers to enter the investigator’s report as an exhibit at the hearing, but sometimes cannot obtain consent from member’s legal counsel to do so. College legal counsel will instruct a witness to recall any relevant events and/or documents pertaining to the alleged misconduct of the member in question. A witness should comment on all information regarding the case involving the member including information which ultimately supports employer’s rationale for termination or suspension of the affected member.
At the hearing itself, legal counsel for the member or the member themselves, if they have not hired a lawyer, are given an opportunity for cross-examination of a witness. The College can do their best to anticipate this line of questioning, but is not privy to this information. The College is also given the opportunity for re-direct questioning of a College witness based on information from the cross-examination.
What expenses does the ACMLT pay for?
The College will pay for all travel and accommodation costs associated with a hearing as per College policy in effect at that time. The employer is responsible for wages/premiums and/or alternate day(s) of rest associated with scheduled shifts as per the appropriate article of applicable Collective Bargaining Agreement (e.g. article 35 – court appearance).
What about costs to the organization, e.g. salaries, administrative time, etc.?
The organization is responsible for these costs; however, the College does appreciate these costs can be substantive in lengthy matters.
Who can people talk to if they have further questions?
Why are hearings held Edmonton when this results in multiple witnesses travelling?
In previous years the College travelled to the location of the complaint; however, the costs associated with this protocol are much more substantive for the College. At any hearing, the minimum number of individuals required to attend is 9 (College legal counsel, College Hearings Director, College Complaints Director, court reporter, three hearing tribunal members including a government-appointed public member, legal counsel for the hearing tribunal, administration support, and a variable number of witnesses). The College does acknowledge the impact hearings have on the workplace and workflow, and even staff morale. The College has proposed teleconference options in some cases, but requires consent from opposing legal counsel to proceed in this manner. In most cases, opposing legal counsel prefers witnesses to be present for questioning.
Under what circumstances would an ACMLT regulated member have their ACMLT practice permit suspended or cancelled?
Under the HPA a hearing tribunal is given the authority to suspend or permanently cancel a practice permit and registration with a written order if a finding of unprofessional conduct is made. This type of order is only made where the unprofessional conduct is of a very serious nature, public safety is compromised, or both.
The College Registrar can cancel a regulated member’s practice permit and registration, after 30 days written notice, if the regulated member does not apply for a practice permit or is in default of payment of the appropriate dues/fee.
The College Complaints Director can also direct a regulated member cease providing professional services if the Complaints Director has grounds to believe a regulate member is incapacitated whether or not a complaint has been received (section 118 of the HPA).
Does the ACMLT ever approach an employer directly prior to making a final adjudication?
If one or more findings of unprofessional conduct are made by a Hearing Tribunal, the College Complaints Director in consultation with legal counsel submit penalty sanction recommendations (including general orders, fines, and costs) to a Hearing Tribunal, but ultimate discretion to make orders rests with the Hearing Tribunal. If an employer has an appropriate penalty sanction for an accused member, they could present this to the College for consideration; however the College must weigh several factors when proposing penalties to a Hearing Tribunal. Such factors include the harm to public, harm to integrity of the profession, the number of previous offences, cooperation of the accused, remedial or rehabilitative options, and any mitigating or extenuating circumstances.
Is staff expected to drop everything to work around the investigators’ schedules?
The College investigator strives to accommodate supervisor and staff schedules; however, in the essence of a timely investigation, sometimes individuals are requested to appear to make a statement at a specific time. If at all possible, interview times should be arranged for mutually agreeable times for the organization and the investigator.
How much latitude does the ACMLT have with the investigator?
In order to maintain fairness and impartiality once the College appoints an investigator, the College cannot direct the investigation in any manner. If the College attempts to control an investigation, there is the potential to lose jurisdiction or jeopardize findings of unprofessional conduct if the accused member or their legal counsel raised this argument.
Why are multiple witnesses called, some seemingly unrelated to the incident? Is this not increasing the costs for the ACMLT as well as the stress for those involved in the investigation?
Pursuant to section 63 of the HPA, an investigator may:
- require any person to answer any relevant questions and direct the person to answer the questions under oath,
- require any person to give the investigator any document, substance, or thing relevant to the investigation that the person possesses or that is under the control of the person
- require any person to give up possession of any document to allow the investigator to take it away to copy, in which case the investigator must return it within a reasonable time of being given it but must return it no later than after a hearing is completed
The College investigator is a “professional interviewer” and approaches each complaint on a case-by-case basis. Pursuant to section 52 of the HPA, an investigator in the course of an investigation may investigate all matters that are related to the conduct of the investigated person that could give rise to a finding of unprofessional conduct. The investigator is not purposefully invasive and disruptive to an organization and its staff, but rather has to exercise due diligence to ensure all evidence is collected and presented to the College Complaints Director.
The College is mindful of costs related to conduct, and encourages a thorough investigation at the onset. If an investigator concludes an investigation and the Complaints Director determined the report is not complete or the investigation was not properly conducted, the Complaints Director must direct the same investigator or another to undertake further investigation and submit a subsequent report, or may request an expert to assess and prepare a written report on the subject matter of the complaint or matters arising from the investigation of the complaint.
Why do staff feel like they are victims and need to justify their actions?
Individuals who appear on behalf of the College as witnesses are never purposefully made to feel like they are being interrogated or their professional integrity and conduct is being judged. The atmosphere in a Hearing Tribunal can at times be tense as an individual’s professional career and reputation is at stake. The College is doing its best to protect the public and the profession, and the opposing legal counsel is also doing its best to exonerate their client. In an attempt to defend their client, opposing legal counsel may “attack” a witness to attempt to discredit them.
Who arranges for the investigation meetings?
The College does not intervene in an investigation so all interviews are arranged and conducted by the appointed investigator. The College investigator attempts to have one point of contact to schedule interviews to ensure the organization is aware of all staff being impacted by the investigation.
Is an employer obligated to pay overtime or premiums for meetings falling outside of regular work hours?
An employer is responsible for compensate as per their Collective Bargaining Agreement.
What information should we be providing to the investigators? Should we be handing over the supervisor’s file on an employee? What about emails and notes from other employees regarding the individual?
All information, including an employee file should be given to an investigator upon request. It is best to provide all information up front and be transparent, even if one feels it is irrelevant to the investigation. Often, it is the notes and emails on an employee’s file that contain relevant information to a complaint of unprofessional conduct. It is the investigator’s responsibility to determine the appropriate individuals to interview, and the information relevant to the complaint.
Why is a tape recorder used to record investigative meeting conversations sufficient in some situations and a stenographer as well as a tape recording used in other interviews?
The HPA does not provide specifics on how an investigation is conducted so there is ample latitude for the investigator; however, the College strives for consistent process. The College investigator has been transitioning his standard investigation protocol over the previous years. The current process for investigations include witness interviews conducted with one or more investigators present, a tape recording of the proceeding to ensure evidentiary consistency if needed, and a transcribed written report provided to the College Complaints Director within a reasonable period of time.
What are the privacy obligations of the ACMLT around investigations?
The College respects the confidentiality of all members and employers during the course of an investigation. In some cases, interviewed members are privy to sensitive information; however, they are briefed on the confidential nature of the interview and any matters which are discussed. The witnesses are provided with a copy of their witness statement to help recall previous testimony, but they are not given copies of the investigators report in its entirety. In the hearing, they may be referred to another individual’s statement if the context is necessary for them to answer a question.
The College expects all regulated members who are interviewed to maintain confidentiality regarding the matters and information discussed during an interview or, ultimately, at a hearing if the matter proceeds to this stage. The “duty of confidentiality” is one of the professional obligations all regulated members have.
What are the factors that determine whether an investigative meeting is held on an employer’s premises or offsite?
If possible, interviews are conducted on the employer’s premises for three reasons:
- minimize additional costs for renting meeting space at conference facilities
- minimize the impact to workload and reduce the time staff must be away from work (e.g. time needed to travel off-site)
- ensure the complainant (employer) is aware of all individuals affected by the investigation and to make it convenient if an HR representative needs to be present
What is mandatory reporting and how does an individual interpret section 57 of the Health Professions Act?
Section 57 of the HPA is sometimes referred to as “mandatory reporting” component of the legislation. Section 57(1) states “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”. Section 57(2) states “on being given notice under subsection (1), the complaints director must (a) treat the employer as a complainant (b) despite not receiving a complaint under section 54, treat the notice as a complaint in accordance with section 56 and (c) notify the employer and the regulated member accordingly”. Important to note “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.
The employer retains the discretion to determine the nature of the conduct of the regulated member and whether or not this qualifies as unprofessional conduct as defined by the HPA. The HPA does not require an employer to report all suspensions, termination, or resignations to the College; only those due to conduct that is “unprofessional” for a regulated member of the College.
Section 1(1) (pp) defines “unprofessional conduct” as one or more of the following, whether or not it is disgraceful or dishonorable:
- Displaying a lack of knowledge of or lack of skill or judgment in the provision of professional services;
- Contravention of this Act, a code of ethics or standards of practice;
- Contravention of another enactment that applies to the profession;
- 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;
- Representing or holding out that person’s registration or practice permit is not subject to conditions when it is or misrepresenting the conditions;
- Failure or refusal to comply with the requirements of the continuing competence program, or to co‑operate with a competence committee or a person appointed under section 11 undertaking a practice visit;
- failure or refusal to comply with an agreement that is part of a ratified settlement, to comply with a request of or co‑operate with an investigator, to undergo an examination under section 118, or to comply with a notice to attend or a notice to produce under Part 4;
- contravening an order under Part 4, conditions imposed on a practice permit or a direction under section 118(4);
- 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);
- 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);
- carrying on the practice of the regulated profession of physical therapists on behalf of a corporation that does not meet the requirements of Schedule 20;
- conduct that harms the integrity of the regulated profession.
