How are our colleges working? Not so well, according to these physiotherapists

Physiotherapists enjoy the privilege of self-regulation in Canada.  This means that the provincial government does not tell us how to practice but lets us decide for ourselves what our standards are and how to monitor them.  As a result, we pay yearly dues to a government-mandatedbody called the “College”, which then writes the rules on our behalf and investigates complaints.  The College works to protect the public interest and regulate the profession.

The College ‘polices’ each of us in our practice. But who polices the College?

COVID and the failure to license graduates

The COVID pandemic wreaked havoc on Canadian regulatory Colleges.  In order to grant a license to practice, each College must certify their applicants and most professions use an examination process of some sort.  During the 2020 lockdowns examinations in person were not permitted.  Some professions do not require an in-person practical exam as part of licensure (nursing, occupational therapy).  But those that do were forced to pivot and find alternate arrangements to get enough health care graduates licensed and working.  The Physiotherapy Colleges of Canada had a particularly difficult time of it, after having attempted to implement an online practical examination process, which failed on at least 2 different occasions.  This left applicants deeply frustrated and unable to complete their licensing process for 2 years or longer.

As the examination process continued to falter, some physiotherapists spoke out about the system, arguing that the exam was unnecessary and even invalid as a measure of performance.  One of the more high profile critics was Ontario physiotherapist Bahram Jam, a well-known clinician and experienced educator.  Starting in March 2021 Bahram took it upon himself to publicly criticize the the College of Physiotherapists of Ontario (CPO) for their role in failing to offer an exam to complete the licensure process.   Shortly thereafter, Bahram found himself the target of threats and intimidation from his College.   

On April 20, 2021 the Registrar of the CPO, Rod Hamilton sent a letter to Mr. Jam. He warned Bahram that the registrars of the British Columbia and Quebec Colleges had concerns about his statements being unprofessional. He was told that he must publicly apologize or “they will proceed with a formal complaint and the College will be required to investigate these concerns.”

In a follow-up communication, he was advised by the registrar “at this time, I will not be appointing an investigator to make further inquiries regarding this matter however should the College continue to receive concerns regarding your conduct I may be required to revisit my decision in this regard.”

With the College having significant power to investigate and regulate his practice, Bahram found this correspondence chilling.

It’s not just the physiotherapy colleges

The PT College isn’t the only College in Ontario that’s been in the news for questionable regulation of members.  In one high-profile case, a member of the College of Psychologists was investigated regarding complaints about comments made on social media; comments unrelated to the practice of psychology.  The College of Psychologists of Ontario ordered Dr. Jordan Peterson to complete a remedial program regarding “professionalism in public statements.”  Dr. Peterson was no longer practicing psychology at the time of the complaints, but was still registered with his College.  None of the complaints were submitted by clients or former clients of Dr. Peterson, and many were from outside of Canada.  Nevertheless, the College found him in breach of their standards of practice, and issued a disciplinary order which he then appealed through the court system (without success).

In Dr. Peterson’s case, it was random members of the public who complained.  In an even more bizarre set of circumstances, Bahram’s complaints came from the registrars of 2 Colleges in provinces where he is not even licensed.  He was threatened with investigation not because of a complaint by a patient or by the public, but a complaint by another province’s College.

How are other regulators regulated?

The RCMP and regional police forces act as the ultimate executive branch in our society.  Governments write the laws and the police enforce them. But our society knows that even police departments sometimes make mistakes.  We don’t leave it to the police to investigate their own behaviour.  Most police departments are overseen by a police commission to keep them honest.  A police commission is an independent body made up of members who oversee the police departments to ensure they follow correct procedures and to help investigate and discipline their members appropriately.

Our regulatory Colleges have no such oversight commission.   If our College fails to execute their mandate appropriately, there is little recourse other than the government itself stepping in.

For this reason, Bahram Jam filed a formal human rights complaint against his College in the fall of 2021.

What happens when it’s not the College initiating an disciplinary action, but a patient with accusations of sexual abuse?  How does the College deal with that?  Here’s the story of an Alberta physiotherapist who has lost his license for life after a series of College hearings that found him guilty of an act he denies committing.

He said - She said

Former Alberta physiotherapist Harkawaljit Randhawa found himself in trouble with the College after a complaint in 2022.  It was alleged by a female patient that during a treatment session he (a) touched her left breast without her consent or a therapeutic purpose; (b) massaged around and on her right breast without her consent or a therapeutic purpose; (c) told her she was beautiful, or words to that effect; and (d) attempted to kiss her.

He denied these allegations, and with the help of a legal team he made a defence of his case in front of an in-person tribunal hearing in September 2023.  After 3 days of testimony by multiple witnesses and parties, the College adjourned the hearing and 8 months later issued their decision.

The College was faced with a question of whom to believe.  Issues of credibility are notoriously difficult to adjudicate, and juries and judges are often left with this difficult task.  Judges will provide specific instructions to a jury of how to weigh the evidence, what they can and cannot assume, and how to formulate their decision.  But there was no court-appointed jury involved in the Randhawa case.  And no judge.  Just a panel of 4 appointees (2 physiotherapy College members and 2 members of the public), without experience in the justice system.  They found the allegations against Mr. Randhawa to be proven.  They argued in their decision that the credibility of the patient was greater than the credibility of the physiotherapist.  Mr Randhawa’s lawyer claimed there were errors made during the hearing, and initiated an appeal.

The regulations for an appeal are written by the provincial government, and require the College to appoint not a judge or lawyer, but rather a new panel of 4 (different) appointees to hear the appeal.  Mr. Randhawa’s lawyer brought forth arguments that a series of ‘errors of law’ were made in the final ruling and decision.  The term ‘error of law’ is a legal principle, essentially meaning legal mistakes were made.  Mistakes that lawyers understand, but the general public and physiotherapists appointed to a tribunal are not familiar with.  Aside from a lawyer appointed by the College to oversee the appeal hearing, the decision on whether ‘errors in law’ were made was ultimately decided by 2 College members and 2 members of the public.  The appeal was not successful.

Who regulates our College?

How often does the government step in to oversee the Colleges?  Rarely.  Here’s one example of governmental intervention.  In the 20-teens, governments in some provinces became aware of cases of sexual abuse and sexual misconduct occurring in the health care professions, with what they felt were insufficiently severe penalties.  Some doctors, for example were seen to be getting off with a slap on the wrist for actions that seemed to be more a matter of abuse than just indiscretion.

As a result, the provinces of Alberta and Ontario directed the regulatory Colleges of all health care professions to institute “zero-tolerance” polices for sexual abuse.  Colleges were asked to write new standards of practice indicating a precise definition for sexual abuse and misconduct, and a minimum mandatory sanction if found guilty.  In the case of sexual abuse, the Colleges were instructed to revoke the license of any regulated professional found guilty of sexual abuse with no right to re-apply in the future.

Before the College was allowed to publish their new guidelines, the government first reviewed them and suggested changes.  Only once the government was satisfied did they then approve them and permit the College to enact them.

This is an example of heavy government oversight of the Colleges.  But what if rather than under-disciplining a member, the College is accused of over-disciplining, or holding a member to too high a standard?  Would the government intervene in that event?  Not likely.  In fact, there isn’t even a process available to a regulated professional to appeal to the government, or to anyone over a decision made by their College. We are left to consider expensive litigation against our College in court, as Dr. Peterson did, at a cost of more than one million dollars in his case.  Fighting the College is not cheap.

What came of the Randhawa case?

The cost of a College tribunal hearing is extensive.  The physiotherapist defending his or her interests requires the advice of legal counsel, and this is funded by the malpractice insurance that we are required to purchase.  It is not uncommon for a multi-day hearing to cost the physiotherapist well over $100,000, and costs can climb at times to $200,000 or more.  In Harkawaljit’s case, the insurer agreed to fund the cost of the appeal, which was eventually unsuccessful.

With his license removed, he is now no longer eligible to practice in Alberta.  It is uncertain how other provinces would treat an application he might make to be licensed there, as most Colleges require a disclosure of any prior disciplinary actions against the applicant.  In addition, the Alberta College is required by the Health Professions Act to inform the provincial Minister of Justice of the finding.  When Mr. Randhawa’s license was cancelled permanently, he was then faced with waiting to hear whether the government would recommend criminal charges against him.

The Colleges reserve the right to review everything about our practice - our charts, our social media communications, even our websites.  What happens when the College is accused of making a mistake themselves?

The Alberta College and informed consent

In 2024, the Alberta College published a mandatory training module that included a questionable statement.  In a section on Informed Consent, the module advised physiotherapists of the following surprising example:

"If the client and the physiotherapist decide to modify a treatment, for example, by reducing the number of acupuncture points needled, the physiotherapist must document the discussion that led to that change and that they received the clients consent for the change in plan.” (emphasis added)

The process for informed consent in Alberta is quite onerous, and carries with it the responsibility to have a conversation with the patient, and to explain to them the risks and benefits of a treatment plan, to allow them to ask any questions, and then to document that entire conversation in the chart. The particular example in the College learning module applies the entire informed consent process to a simple change in dosage of a modality; in this case, reducing the number of acupuncture points needled.  That is not aligned with the typical understanding of consent by most physiotherapists.  And it’s not aligned with their own Standard of Practice at all.

The specific wording in the Consent Guide for Alberta Physiotherapists is that informed consent must be obtained when there is a “significant change” in the treatment plan.  It does not say “any change.” And yet, when questioned, the College disagreed that their example was erroneous.  In fact, they doubled down when I brought this to their attention.  The response I received from the College was accusatory:  “I would have expected that as an experienced clinician you engage in this process every day.”

One must now assume for this example to apply to any other dosage change, like a change in ultrasound output, or time spent on an exercise bike, or the number of reps of an exercise.  It’s entirely impractical.  Farcical even.

After multiple emails back and forth with the Policy & Practice Manager, the Registrar, and with members of the College Council, there was no resolution.  It became clear that the College is not to be questioned.  The College is above reproach.

Do these little details truly matter in the grand scheme of things?  It certainly mattered to Mr. Randhawa.  It was in part a little detail like this that resulted in his lifetime suspension.

Every word matters

In the Randawa case, the tribunal found his testimony to not be entirely credible.  As evidence of this, the hearing tribunal referenced a section in the Standard of Practice on documentation that requires chart notes to be recorded ‘chronologically.’

In their published decision, they note that “[Mr. Randhawa] testified that he does not always do things in the order he writes them in the chart.”  The tribunal found this to be a credibility issue.  He acknowledged that, in an example, at times he may provide ultrasound followed by heat, but the chart might record this as heat, then ultrasound.

Rightly or wrongly, the tribunal found that this small detail impacted his credibility.

The Alberta College refuses to acknowledge the error in their example that states that documented informed consent is required for a dosage change in any treatment session.  This example remains posted on their website, even though it is in contradiction to their own published standards of practice.

In the event that a physiotherapist is faced with any allegation of wrongdoing, the Alberta College will be in a position to refer to this example, and to find credibility to be diminished if the chart records any change in dosage that does not also include documentation on the informed consent process.  One can imagine how many physiotherapists will now be considered unreliable witnesses in their own hearing for failure to follow this impractical and unsupported requirement.

In seeking clarity of the rules for informed consent, I was left more confused and without a clear answer from my College.  The only way to get a final ruling on whether or not informed consent must be documented for a change in ultrasound dosage is to wait for a complaint, and then see how the College handles it.

Bahram’s case now

Mr. Jam's case is yet to be heard by the human rights commission. He has asserted discriminatory harassment by his regulatory college. He has requested an apology and compensation in the amount of $25,000 which he intends to donate to the Physiotherapy Foundation of Canada to promote research.

The College’s mandate is to protect the public, not themselves.  There are no specific regulations prohibiting members from criticizing the College.  After all, Canada is not a autocratic police state.  To this point, Mr. Jam has spent over $20,000 of his own money pursuing justice.  The outcome remains to be seen.

In conclusion

We don’t accept that the police have a right to threaten a citizen with investigation just for publicly criticizing the actions of the police, do we?  Nor does the government attack citizens for criticizing their performance. In Bahram Jam’s case; was it right for the Ontario, BC and Quebec Colleges to protect themselves from criticism by threatening a member?

In Harkawaljit Randhawa’s case, when a physio is accused of misconduct during a treatment session, it seems right that such a case is heard and decided upon by a panel of other physiotherapists.  But when their decision is appealed, is it right for another panel of non-legally trained appointees to hear arguments on whether the panel made errors of law?  That’s how the provincial government has established the rules through the Health Professions Act.  Should such an appeal not be left for experts in law to decide?  Any change to that process would have to be enacted by the provincial government in a new act of legislation.

And when it comes to the need for informed consent inappropriately applied to changes in dosage, is the Alberta College above all criticism?  As members, we are mandated to constantly self reflect on our practice. In this situation, when the College was asked to reflect on theirs, they chose to deny, accuse and deflect the criticism.

The Colleges have no ombudsman for us to appeal to.  They don’t send out to us satisfaction surveys.  In fact, they don’t even think of us as their customers.  They acknowledge that they are there for the protection of the public. The public are their customers.  Like it or not, we are their targets.