While you’re here, you may wish to attend one of our upcoming workshops:
Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
Being the daughter of a retired health care provider, I observed from an early age the balancing act of providing patient-centred care while wanting to do one’s best in a workplace that can be emotionally charged, fast-paced and ever-changing (I know that these descriptors not only apply to working in health care generally, but could apply to an employee’s experience in just one shift).
My previous experience as an investigator at a health regulatory college gave me the opportunity to see the intersection of health and labour and employment law, the two areas of law I have been drawn to throughout my career. In this article, I outline the 5 questions I encourage those conducting workplace investigations in health care settings to ask themselves during the planning stages of the investigation.
Question 1: Is there a mandatory reporting obligation?
When a complaint comes forward about a health care provider and the organization has decided to investigate the complaint, one of the most important questions to consider at the outset is whether the organization has a mandatory obligation to report the employee to the applicable college that regulates them. This involves determining whether the health care provider is regulated. In Ontario, a list of the health professions which are regulated can be found here.
Employee is a regulated health professional
Ontario’s regulated health professionals are governed under the Regulated Health Professions Act (RHPA) and acts that are specific to each of their professions. Under the RHPA, employers and facility operators have reporting obligations that they must comply with. These mandatory reporting obligations include situations where an employer has terminated a health professional’s employment due to professional misconduct, incompetence or incapacity or where a facility operator has reasonable grounds to believe that a member who practises at the facility is incompetent, incapacitated or has sexually abused a patient.
I do not intend to provide detailed commentary on these mandatory reporting obligations in this article but simply to alert investigators that the complaint they are investigating may trigger such an obligation. Determining whether a reporting obligation exists typically involves discussion at the management level and consultation with the organization’s legal counsel as needed. It would be prudent for employers and facility operators to ensure that any organizational policy related to a workplace investigation of a regulated health professional contemplates whether a mandatory reporting obligation exists.
Employee is an unregulated health care provider
The commentary above does not apply to unregulated health care providers. There are a number of practitioners who are currently unregulated in Ontario, which include but are not limited to: personal support workers, physician’s assistants and care aides.
An employer investigation vs a college investigation
Investigators conducting the investigation of a health care provider at the organizational level should be aware that the applicable college may also investigate the health professional who has been reported. While the two investigations may overlap in terms of the witnesses interviewed and the evidence collected, the mandate of the investigators differ as do the potential outcomes. The investigator conducting the employer’s investigation does so with an employment lens, determining whether any of the organization’s policies have been breached and if so, how this impacts the employer-employment relationship. In Ontario, this investigator also operates within the statutory frameworks of the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code, determining if there is an obligation to investigate and whether there have been violations under either pieces of legislation. In contrast, a college investigator’s mandate is to determine whether the conduct being reported requires restrictions to the health professional’s ability to practise across the province in any employment setting, rather than at just one organization.
Question 2: Are any of the witnesses to the complaint patients?
An investigation in a health care setting could involve witnesses who are patients of the organization. For instance, a patient may have witnessed one employee being harassed by another employee while receiving care from the two health care providers. If the investigation involves patient witnesses, I encourage the investigator to consider the following:
- Patients may be reluctant to participate in the investigation. They may be concerned that their participation may impact future care they will be receiving or that their health will be adversely impacted by being involved in the process.
- The necessity of the patient record. An investigator could identify the patient record as having information that may be relevant to the complaint being investigated. Because of the private nature of a patient record and the patient’s consent required to access it, an investigator should determine whether the record is absolutely necessary to collect.
- Conducting patient interviews. As with any interview, the location should be private and allow for the patient to be comfortable to share information. This could mean the investigator conducts the interview in a location outside the patient’s unit. Sometimes, a patient’s room may be adequately private and is the setting that makes them feel the most at ease. In addition to the location of the interview, the investigator should also be mindful of the patient choosing to bring a support person with them. My colleague, Fiona Lee, has recently commented on support persons in her article found
Question 3: What kind of evidence may you need to collect?
While the evidence collected in an investigation will vary from case to case, here are a few examples of evidence that may be applicable when investigating a health care provider:
- shift schedules and patient assignment sheets;
- organizational policies and procedures related to the delivery of care;
- security surveillance videos;
- activity/visit logs within patient homes;
- GPS records that log patient visits in the community;
- audit records from medication dispensing units; and
- audit records related to the electronic access of patient charts.
Investigators at health regulatory colleges who have been appointed under the RHPA have a broad scope of powers that enable them to collect information relevant to the investigation. Under the RHPA, a college investigator may make reasonable inquiries of any person on matters relevant to the investigation. In addition, on the production of their appointment, the appointed investigator may enter the health care professional’s place of practice at any reasonable time to examine anything found there that is relevant to the investigation. Finally, the RHPA provides that a regulated health care professional under investigation shall co-operate fully with an investigator.
An investigator who conducts the employer investigation does not have the same powers noted above. As such, they will need to ask parties and witnesses to provide relevant physical or documentary evidence during the course of the investigation. Once an investigator is aware that relevant evidence exists, they should make reasonable efforts to follow-up with the relevant individuals to obtain this evidence.
If a college investigation ultimately gets referred to the applicable college’s Discipline Committee (“the Committee”), the standard of proof applied at a discipline hearing of the health professional is the “balance of probabilities” standard. Applying this standard means the Committee must decide whether it finds that it is more likely than not that the allegations occurred, which is based on clear, cogent and convincing evidence. The burden of proving this standard is on the college.
The standard of proof to be used by workplace investigators is also the balance of probabilities standard. The investigator when deciding whether a complaint has been made out must decide whether it is more likely than not that the incident in question occurred.
Question 4: Is the health care provider a member of a union?
The health care provider being investigated may or may not be a member of a union. If they are, the health care provider may have the right to union representation under their collective agreement and a union representative may attend interview(s) with them. If this is the case, the investigator should underscore the expectation that the confidentiality of the investigation be maintained, akin to the expectation of the health care provider who is being represented. The investigator will also want to ensure that the union representative is not a potential witness to the complaint being investigated. If so, this could be a conflict of interest for the union representative and it is possible that they would hear confidential information they would not otherwise know as a witness.
Question 5: Should the investigator be internal or external?
In my experience, many health care organizations have staff who conduct the investigation into a complaint related to a health care provider. That being said, the organization may consider retaining an external investigator for one or more of the following reasons:
- The subject-matter and/or complexity of the complaint suggests that the internal investigator may not be appropriate;
- There could be an appearance of bias in favour of one of the parties to the investigation if the organization was to use its internal investigator; or
- There is potential for litigation and/or media/public attention or scrutiny.
While each investigation will have its own unique set of considerations, the 5 questions above are a starting point and are intended to assist investigators who are about to embark on an investigation involving a health care provider. For another take on problematic conduct in a health care environment, my colleague, Sarah Hellmann, has recently written on health care and harassment here.