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Undertakings can manage some concerns about physicians

Undertakings can be an effective means by which to address concerns about physicians’ practices, Toronto health lawyer Lonny Rosen tells the Toronto Star

Rosen, partner at Rosen Sunshine LLP, makes the comments in an article about how the College of Physicians and Surgeons of Ontario has made agreements (called undertakings) with more than 200 doctors that the newspaper says were considered “high risk” to the public. Those doctors agreed to quietly resign or restrict their practices over the last decade. Some undertakings were struck “in exchange for having investigations or prosecution plans dropped,” says the newspaper.

The Star did not include in its analysis undertakings that the college’s discipline committee took into account when imposing penalties,” says the article. “Details of these deals are made public in hearings. Also excluded were interim undertakings, which restrict physicians’ practices until they appear for hearings.”

The College says undertakings are effective tools to “protect the public interest,” says the newspaper. The Star’s story appears as the College considers changing its policy on undertakings to make more information public.

Rosen says an undertaking can effectively address potential concerns with a physician, even without admission of allegations. 

Rosen says that physician privacy must be taken into account before considering the publication of undertakings signed by doctors with the College.

“It wouldn’t be fair to disclose unproven allegations, particularly when there is no risk to the public. Just because someone is curious about the underlying facts doesn’t mean that it is in the public interest for them to have that information,” he says.

Sometimes, he says, an undertaking can be preferential to a disciplinary hearing, which is “a terribly punitive process for the member, the complainant and for any other witnesses. It’s an adversarial system and stakes are high.”

In an interview with AdvocateDaily.com, Rosen says medical malpractice lawyers often view undertakings as inappropriate because concerns about doctors are not addressed through discipline and because the details regarding the undertaking – as well as underlying concerns – are not available to the public. 

“My perspective is that undertakings are agreements that are negotiated between the member and the College to address concerns that may exist with respect to aspects of the member’s practice, but these are voluntarily entered into by the member,” he says. 

“The College would not permit serious concerns about conduct to be addressed by an undertaking, and it is unlikely that an undertaking would be acceptable where patients or the public is at risk of harm.”

In those cases where a deficiency is identified in a member’s practice, and he or she is prepared to acknowledge and address that deficiency, an undertaking by the member to, for example, take remedial courses, be supervised or monitored, and restrict his or her practice during the term of the undertaking may protect the public to a greater extent than would a disciplinary proceeding, says Rosen. 

“Further, this approach saves the member and others (possibly including patients and complainants) from having to participate in an adversarial hearing,” he says. 

Having represented health professionals who have entered into undertakings, Rosen says he can make a few observations. 

“First, the undertaking can address very specific educational needs on the part of the member while providing an aspect of public protection through monitoring or supervision,” he says. “Second, the undertaking represents a serious commitment on the part of the member; breach of an undertaking is an act of professional misconduct for most health professionals. Finally, shortcomings in a member’s practice – particularly where these are acknowledged by the member – are more appropriately addressed through an undertaking than through a punitive proceeding.”

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