top of page

The art of avoiding or defending a physiotherapy college complaint.

No matter your charm, someone's going to complain about you some day. Maybe just in passing. Maybe to your boss. But the most stressful complaint is the one to the College. There's an art to prevent or defend this. Let's go through it:

Physiotherapy complaint process
Managing College Complaints

Survey of experts

In a recent informal survey of expert physiotherapists in Canada with more than 20 years of experience, a few common themes arose.  Developing rapport with your patient is the number one most important factor in reducing the likelihood of a complaint.  “Smile”.  “Be honest and sincere.”  “Communicate clearly.”  When patients have concerns, they want to be heard. If they don’t hear clearly from you, they may want to be heard from your regulatory body.  Complaints are headed off early by being self-aware of your words and actions, and by carefully observing your patient’s body language.  If you haven’t communicated well, you must train yourself to recognize that, and stay in the room until you’ve confirmed that the patient understands everything they need to understand.


When it comes to defending yourself from a physiotherapy college complaint, 1 character trait, and 2 key practices are important.


Character Trait

Are you always willing to do the right thing?  Do you understand your Standards of Practice, and have an active plan to adhere to them?  It’s very easy to get lazy in your practice and slowly abandon your integrity.  Maybe you book too many patients in a day.  Maybe you are preoccupied with non-work thoughts.  Take a step back and observe your practice as if you were auditing yourself.  Have you structured your workday, and your clinic to ensure that it is easy to maintain the highest quality of character?  Here’s a hint:  if you have an uneasy feeling about any part of your practice, if you feel like every once in a while you ‘got away with one’, it’s time to stop, re-evaluate, and make changes.


Maintain these 2 key practices

Consent.  It’s very likely that the standard your College has set for gaining and documenting consent is very high.  Perhaps higher than the actual typical practice in your region.  In fact, some clinics have consent processes that do not meet College standards. No matter the situation, in the face of a complaint it’s not the clinic that gets investigated, it’s you. 


Here’s an example of regulated health care professionals (in this case, pharmacists) finding themselves in conflict between their company policies and their regulatory requirements. (by the way, this company also employs thousands of physiotherapists.)  If you want some tips on how to firm up your physiotherapy consent process, here’s a link to some ideas.


Documentation.  I often review chart notes for legal proceedings and College hearings.  It is common to find documentation that is too brief and not detailed enough to establish what actually happened in the appointment.  This is one of the 2 key problems I see with charting:  too little content.

Did you know that some Colleges require that your chart notes only include abbreviations that have been spelled out in full the first time they are used?  Is that your typical practice?

The other problem is “too much.”  Thanks to the use of electronic records, we have the ability to copy & paste chart notes from one date to the next.  It’s not unusual to see the entire assessment findings carried over to each subsequent treatment note, making the chart notes very long.  Unless you actually measured each day, you should not carry forward that data, unless you preface it with a statement like “notes from initial assessment.”


I routinely see multiple days of treatment with exactly the same wording (including the same conspicuous spelling mistakes).  This is a clue that you may not have actually recorded what happened that day, and a College hearing or court review might question the authenticity of your documentation.  If you use copy & paste, edit it to be accurate to what you did that day, and remove irrelevant data.  (Correct your spelling and grammar mistakes too).

Did you know that some Colleges require that your chart note identify exactly which parts of the treatment were assisted by an aide or assistant?  Do you always include that?

Three types of complaints

If you do eventually receive an official complaint, it typically falls into 3 types:


1. Valid complaint - a true breach of standards of practice.


2. Unnecessary complaint - there is some merit to the complaint, but the issue could have been dealt with in the moment to avoid getting the College involved.


3. Spurious complaint - nothing untoward happened.  The complaint is spurious, wrong, or perhaps even vengeful.


Valid complaints

These fall into 2 categories; a general breach of standards, or sexual misconduct which is a special category in itself.


There are too many possible breaches of the Standards of Practice to list.  They tend to occur in relation to billing practices, conflict of interest, consent, safety, and risk management. 


When it comes to fraudulent billing, a simple admonishment serves as a warning:  you should know better. 

Did you know that some Colleges do not permit treating family members without first determining that there is no other available practitioner appropriate to see them, and then informing the funder of the potential conflict to gain their prior authorization?

In the event of an adverse response to treatment, your actions afterward are the most important.  You must inform your patient that an incident occurred, and what follow up is required.  Too often, College hearings determine that the physiotherapist failed to inform the patient of the risk of the adverse event, and when one did occur, they failed to acknowledge it and provide the proper advice to the patient.  Don’t downplay these occurrences.  If your patient received needling to the neck, and they call you an hour later to complain that they are short of breath, you need to be very clear with them that they may have suffered a punctured lung, and they need to go to the hospital immediately.  Trying to pretend it didn’t happen only makes things worse.


The second type of valid complaint is very discouraging to even acknowledge, but it is happening at higher frequencies across the country - sexual misconduct. The most common types of complaints seem to be related to either words spoken or actions taken.


Words

Reading through the past few years of Canadian physiotherapy college hearings related to sexual misconduct reveals a host of alleged comments made by physiotherapists to the patient:  There are many hearing allegations that describe some version of “PhysioX maing comments to Patient A of a sexual nature that were unwelcome to Patient A.” Here are some very specific examples as published in recent tribunal findings:


  • “You gotta keep the girls [breasts] happy.” 

  • “Do women get aroused by touch?” 

  • “Sex is more primal than intimate.” 

  • “I bet this is how your baby was conceived.” 

  • “I doubt these were the clothes you were wearing when you made the baby.”  “You skin is very smooth.  I want to bite it.” 

  • “You are so wet.”


It should be self-evident that this kind of conversation is deeply inappropriate. Check your character. Don't be that person. (And to be clear, the overwhelming majority of cases involve a male PT).


Actions

Sometimes it’s not the words, but the actions of the physiotherapist that are deemed sexual in nature.  Here's a direct quotation from a recent tribunal decision: “Mr. XX removed his pants in the presence of Patient A, purportedly to demonstrate quadriceps / patellar tracking exercise to Patient A.”


Sexual Abuse

The second most common breach of sexual misconduct standards is either engaging in a sexual relationship with a patient (consensual) or engaging in non-consensual sexual acts with a patient during or outside of a treatment session.  Little needs be said about these abusive behaviours, though it is interesting to note the penalty for a finding of sexual abuse varies widely from province to province.  For example, a consensual sexual relationship with a patient in BC results in only a reprimand and temporary sanctions, whereas the same consensual relationship in Alberta results in a mandatory and permanent license revocation.  Canada does not have a common approach to sanctions on sexual abuse from province to province, and this is an area needing attention by physiotherapy regulators.


Unnecessary complaints

When an adverse event occurs as a result of assessment or treatment, it does not necessarily need to end up as a formal complaint. In fact, one hosptial in Canada reduced their number of complaints and legal cases drastically by always engaging in 2 simple practices: After an adverse event occurred, the person responsible came to the patient and admitted what happened and answered any questions about it. And secondly, they apologized. An apology can be a powerful act to repair the relationship with your patient and reduce the likelihood of a formal complaint.

An apology is not an admission of guilt in a legal or regulatory setting, it's simply an acknowledgment that something went wrong and that you agree with them that it was unfortunate.

In some of these cases of unnecessary complaints, the college investigates and finds that there is no breach of standards. This is still stressful for the physiotherapist.


An example here would be when a patient complains that they were diagnosed incorrectly by the physiotherapist, and this negatively impacted their legal claim.  If you have not explained things to them well enough, they may file a formal complaint. The College will investigate either by requesting chart notes, or with a simple phone call to the physiotherapist to gather information.  When there is no evidence of a breach of standards, the complaint process is closed.


Another example would be a patient sustaining a minor skin burn after hot pack application. If the patient informs you of the event, the way you deal with it may very well determine whether they are satisfied, or whether they feel 'unheard' and file a complaint.


It's helpful in these situations to maintain the highest character in your daily practice, use genuine and honest communication and complete thorough documentation.

Spurious complaints

These complaints have no merit, and are lodged out of ignorance, or potentially even spite. It's difficult to determine their occurrence because colleges do not report on them when they do not lead to further investigation. In any event, you can avoid such complaints by maintaining excellent communication with your patient, attending to their condition, and ensuring that they know you are a thoughtful, caring practitioner.


What happens when I need to defend myself to the college (including a recent example with some disturbing features) ?

If your college complaints director determines that an investigation and hearing is required, you will be informed in writing. This is a serious matter, and you will need legal assistance.


As part of your malpractice insurance each year, you should be including coverage for regulatory / legal defence, in addition to a criminal defence. If you choose your insurance through the Canadian Physiotherapy Association, you will be given the option to buy either $160,000 or $200,000 of regulatory defense coverage. With that in place, you can now engage a lawyer, which you should do immediately.


You can request a lawyer be assigned to you by your insurer, or you can request that they accept a lawyer that you choose. It's important that your lawyer have experience in defending medical complaints. Keep in mind that legal fees can be higher when your lawyer is not in the same town as the college, as they will have to travel to attend a hearing.


Your lawyer will act on your behalf in responding to the complaint notice and preparing for the hearing. They may engage the services of an expert witness to help with your defense. Preparing for and attending a hearing is time consuming, anxiety-producing, and very expensive. It is not unusual for your legal costs to be more than $50,000, and if the case is complex, $100,000 or more. The extra cost of the premiums for the higher level of coverage is well worth it for peace of mind.


A concerning case study

A recent complaint in Alberta lead to allegations that were investigated by a college tribunal, with an outcome that some physiotherapists may find troubling. Here is a brief summary of the most relevant details:


The investigated member (male) was accused by a female patient of engaging in the following acts:

(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.


The PT denies all allegations.


Because the charges fall under the Practice Standard of Sexual Abuse, the Alberta College is, by law, required to appoint a hearing tribunal to investigate. The tribunal meets, in a court-like setting, with 4 tribunal members, and with lawyers representing the Complaints Director (similar to the 'prosecution'), and lawyers representing the PT (the 'defense'), and an independent legal counsel appointed to advise the hearing tribunal on matters of order. This particular hearing took place 17 months after the allegations occurred.


The complainant testifies on her behalf, as does her family member who was not a witness to the allegations but was advised of the allegations by the complainant after they happened. They are both then cross-examined by the defense counsel.


The PT testifies on his behalf and is then cross-examined by the complainant's legal counsel. An expert witness* is then called to provide an opinion on the type of treatment that was provided that day, and the documentation noted in the chart. The witness is then cross-examined.


At the end of 3 days of testimony, there are further legal arguments about the validity of some evidence presented, and lawyers submit further arguments to be considered after the hearing concludes.


The tribunal deliberates on the matter further in October 2023.


The tribunal releases its final decision in May 2024, 2 years after the alleged incident and 8 months after the hearing occurred.


All allegations are found to be proven. As a result, the law in Alberta requires that the practice permit be immediately suspended, and that the Minister of Justice is notified, ostensibly so that they can consider filing criminal charges. The license suspension is permanent: a lifetime ban. In addition, the colleges of all other jurisdictions in Canada must be notified, impacting the ability to register in another province.


Commentary

This is a classic 'he said, she said' case. The only evidence presented is the testimony of 2 parties, with no witnesses. It is a difficult task in a case like this to establish the truth.


In order to determine this, the tribunal was faced with establishing the credibility of both parties. In the end, the tribunal found the witness credible and the PT not credible. Their reasoning may raise some eyebrows.


The tribunal found the PT not a credible witness by applying standards to him that seem unreasonable. They questioned his inability to recall all details of the treatment session:

  1. When acknowledging the evidence that he provided during the hearing, they qualify it by saying “However, in terms of his ability to recall, the Investigated Member testified that he did not have a specific recall of much of the appointment and was relying on his notes and general practice."

  2. He could not definitively recall whether he used gel when performing massage that day, noting that his standard practice was to sometimes use it, and sometimes not.  Whether or not he used gel was not part of the complaint, but his recall of it was used to undermine his credibility.  Because he did not recall exactly, as it occurred 17 months prior to his testimony, “The evidence of the Investigated Member was internally inconsistent on this point and was an example of him not having a specific recollection of events. This undermined the credibility and reliability of the Investigated Member’s testimony.

  3. He did not have perfect recall of exact details that occurred during the treatment.   “He testified he did not recall if she was wearing a bra, how the gown would have fit her, if he made the comment "beauty of a treatment", or the order of which treatments he did that day. The Hearing Tribunal found it difficult to reconcile that the Investigated Member testified he had no recollection of the April 2, 2022 appointment and yet recalled other specific details of the day and appointment. This undermined his credibility and the reliability of his testimony.”


There is an established legal principle in Canada that permits a health care practitioner to rely on their chart notes rather than their memory, for the obvious reason that the event usually occurred a very long time ago. The fact that this college tribunal seems to have failed to apply this established legal principle is deeply concerning and raises the question of whether this was a fair trial. In effect, their reasoning is that his denial of the allegations is not credible because he failed to recall some other details of the visit that were not even relevant to the allegations.


Based on this reasoning, if you fail to recall the non-essential features of a treatment session (such as whether you used a lubricant during massage, or whether the patient was wearing a bra, or how the clinic’s gown fit the patient), a tribunal might find you not credible. If you fail to recall the order in which you applied treatments during a treatment session, a tribunal may question your credibility. This is a chilling precedent. It is concerning enough that the case is being appealed, as of June 2024. (A link to the full ruling can be found here.)


As a self-regulating profession, it is the responsibility of all members to monitor our college's actions, and be aware of regulations, changes to regulations, and the precedents that are being set in tribunal decisions. Your practice permit may depend on it.


Jeffrey Begg, PT


*Full disclosure: I acted as the expert witness for the investigated member in this case, closely following all details of the complaint, notice of hearing, the hearing itself, and the decision of the hearing.

80 views0 comments

Comments


bottom of page