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Discipline Case Summary
The following is a summary of a matter placed before a four member panel of the Discipline Committee of the College of Physiotherapists of Ontario on October 19-23, 26, 1998 and June 29, 1999.
- Mr. Shao worked at a clinic in Toronto as the sole physiotherapist from approximately August to December 1995.
- Mr. Shao primarily worked only one afternoon per week, from about 1400 hours to 1830 or 1900 hours. He was paid $700 per week for this one afternoon of work.
- Mr. Shao primarily assessed patients, developed treatment plans and showed them to a kinesiologist or an athletic therapist who would administer them. Mr. Shao failed to plan for the discharge of his patients.
- Mr. Shao knew or ought to have known that the kinesiologist and athletic therapist provided treatment without appropriate supervision, altered treatment plans without a reassessment by Mr. Shao, failed to follow treatment plans directed by Mr. Shao and failed to follow Mr. Shao's instructions about reassessment of patients.
- The patients' treatments were primarily paid through extended health-care insurance or through motor vehicle accident benefits. Their billing expectations and requirements are that physiotherapy services be provided by physiotherapists.
- Accounts submitted for the treatment of patients suggested that Mr. Shao had provided physiotherapy treatment to the patients when he had not. Mr. Shao knew or ought to have known that these accounts were submitted with his name and physiotherapy registration number.
- In at least one instance, Mr. Shao signed a report to an insurer which stated that a patient had been attending physiotherapy for three weeks. Mr. Shao's first entry on this patient's chart was for an assessment of this patient eight days after the report was signed.
- The conduct alleged above constitutes professional misconduct under paragraph 2 (failing to maintain the standards), 18 (false or misleading account), 25 (unprofessional conduct) and 29 (failing to supervise auxiliaries) of section 1 of Ontario Regulation 861/93.
Mr. Shao pleaded not guilty to all of the allegations.
The following is the finding of the majority of the panel. One panel member dissented and did not provide written reasons.
The evidence disclosed that Mr. Shao became a member of the College in November, 1994. In August, 1995, Mr. Shao was hired by Dr. S. to work as a registered physiotherapist at his clinic. Mr. Shao only worked on Wednesdays between the hours of approximately 1400 to 1900 hours. He was remunerated for each five-hour period at a flat rate of $700. According to Dr. S, Mr. Shao's duties were to assess new patients, to provide physiotherapy treatment and to formulate treatment plans to be carried out by auxiliary personnel hired by Dr. S. Mr. Shao was also to reassess patients and make recommendations for changes in treatment. No evidence was provided either in the charts or by the witnesses that discharge planning was part of Mr. Shao's duties.
On Mondays, Tuesdays, Wednesday mornings, Thursdays and Fridays, patients that Mr. Shao assessed or treated were treated by auxiliary staff at the clinic in his absence. Evidence was presented that auxiliary staff in Mr. Shao's absence made changes to treatments that he had previously recommended, there being no evidence that Mr. Shao was consulted first. Mr. Shao was aware that treatments were given in his absence and that changes were made. The panel found, based upon the evidence, that Mr. Shao did not adequately review the patients' charts before reassessment, otherwise he would have been aware of the changes to his treatment plans made by the auxiliary staff. There was no evidence to show that he questioned or determined whether these changes to his treatment plans were appropriate.
The panel heard evidence from several expert witnesses concerning their opinion regarding the standards of the physiotherapy profession in relation to the supervision of auxiliary personnel who perform physiotherapy treatment. The panel did not accept the opinions of the three non-physiotherapist expert witnesses who gave evidence about this topic. The panel concluded that in these circumstances, the physiotherapist must provide active on-site supervision. That obligation continues until the patient is discharged or until the care of the patient is transferred to another registered professional. The responsibility is upon the registered physiotherapist to ascertain his or her role in a clinical setting in relation to the patient, the auxiliary staff, or any other registered professionals.
With regard to discharge planning, there was very little evidence of it found in Mr. Shao's treatment records. Mr. C., the expert witness called on behalf of the defence, concluded that Mr. Shao did not meet the College's standards on patient discharge.
The majority of the panel concluded that Mr. Shao was guilty of professional misconduct for failing to maintain standards by failing to supervise auxiliaries and for failing to plan for the discharge of his patients. Mr. Shao was also found guilty under the separate heading of professional misconduct of failing to supervise auxiliaries.
With regard to the allegation of submitting false or misleading accounts, the panel did not find Mr. Shao guilty of submitting such accounts.
The panel also found Mr. Shao not guilty of unprofessional conduct with respect to the signing of the patient report. There was no evidence presented that he signed the report before assessing the patient in question.
After hearing submissions from both parties as to the appropriate penalty, the majority of the panel made the following Order:
- That the Registrar suspend Mr. Shao's certificate of registration for a period of two months commencing no later than December 31, 1999.
- That the two-month suspension shall itself be suspended provided that Mr. Shao take the jurisprudence component of the College's Review Program, with emphasis on supervision of auxiliary personnel, or a comparable course as approved by the Registrar, by December 31, 1999.
- That Mr. Shao pay to the Ministry of Finance a fine of $3,500 by December 31, 2000.
- That Mr. Shao's certificate of registration be suspended for a period of two months to commence on a date to be fixed by the Registrar if he fails to pay the fine set out above.
- That Mr. Shao appear before the panel to be reprimanded.
The panel believed that the Order balances the punitive and rehabilitative requirements of an appropriate penalty and serves the public interest.
The majority of the panel found this to be an appropriate case to make an award of costs because of the seriousness of Mr. Shao's conduct and the fact that Mr. Shao has not recognized that his conduct was wrong. The majority of the panel ordered that Mr. Shao pay $4,000 to the College towards the costs of the proceedings.