Practice Group Disputes and Breach of Contract

In some Canadian jurisdictions, health care practitioners, such as physicians, midwives and nurse practitioners, practice as independent contractors, organized into sole or multi-member practice groups or health teams. Despite their independent contractor status, claims for wrongful dismissal, breach of contract and human rights complaints from terminated practitioners may arise. The lack of clearly written contracts, protocols and transparent conflict resolution practices can negatively impact the understanding of each party’s roles and responsibilities. Ambiguities about the relationship may lead to over-reliance on complaints to professional regulatory bodies and / or avoidable litigation to resolve practice group disputes.

The professional standards of some regulatory bodies explicitly impose an obligation on practice partners to maintain a professional environment that fosters compliance with applicable legislation and standards, quality improvement and safety objectives, in addition to   the well-being of all individuals involved in client care. Clear protocols and business practices facilitate constructive professional communication, minimize the risk of practice group disputes and promote the delivery of high quality client care. 

Expected Outcomes

Promote and uphold anti-racist, culturally safe, and responsive practices that prioritize diversity, equity, inclusion, and belonging (DEIB).

Adopt best practices for developing and reviewing employment, associate, and partner agreements.

Implement formal strategies to reduce workplace fraud.

Definitions and Acronyms

• Client – includes all persons who receive healthcare and related services including patients, residents and persons in-care
• Conflict of interest (practitioners) – a circumstance in which a practitioner’s personal interest(s) are, or could reasonably appear to be, in conflict with another individual’s interests to whom they owe a duty of good faith to put that individual’s interests above their own.  Such situations have the potential to impact the practitioner’s judgement, decision-making and / or conduct with personal bias  in the exercise of their professional responsibilities. Examples include: undisclosed financial interests and, personal or family relationships
• DEIB – diversity, equity, inclusion, and belonging: an approach to organizational and societal change that seeks to create more diverse, equitable, and inclusive environments where everyone feels a sense of belonging (Deloitte, n.d.). It involves actively addressing the systemic and individual barriers that prevent individuals from different backgrounds from fully participating and contributing to society (Schellhardt & James, 2020)
• Just culture – “A just culture recognizes that individual healthcare providers should not be held accountable for system failings over which they have no control. A just culture recognizes many individual or “active” errors represent predictable interactions between human operators and the systems in which they work. However… a just culture does not tolerate conscious disregard of clear risks to patients or gross misconduct (e.g., falsifying a record, performing professional duties while intoxicated).”  (HIROC, 2017)

Common Claims Themes and Contributing Factors

Contract Management

• The absence of a comprehensive written partnership or associate agreement, or the presence of inadequately-drafted agreement(s).
• Inadequate review and renewal of agreements which do not reflect changes in work arrangements on a timely basis.
• Non-compliance with the terms of the partnership or associate agreement.

Organizational / Practice Group

• Unclear processes for moving from associate to partner.
• Unclear or non-existent practice group protocols clarifying expectations regarding compensation, remuneration, workload, and conflict resolution.
• Unclear or non-existent practice group protocols for inter- and intra-professional communication and clinical practices.
• Perceived or actual systemic tolerance for  unprofessional or unsafe behaviours by partners, associates and / or employees.
• Perceived or actual conflict of interest scenarios involving practice group partners with leadership roles at privileging / credentialing hospitals (e.g., a decision made with the potential for personal or financial gain).
• Overreliance on professional regulatory bodies to resolve ongoing practice group disputes, personnel issues and intra-professional conflicts.
• Inadequate administrative supports leading to overreliance on practice group associates and / or partners for non-clinical / administrative  tasks.

Communications in the Workplace

• Inadequate peer feedback and follow up.
• Failure to provide peer feedback in a proactive and just culture manner.
• Inadequately managed and unresolved disputes between practitioners.
• Performance information not disclosed to  the practice group member that may negatively impact their ability to obtain privileges or change practice groups.

Knowledge and Judgement Deficits

• Practitioners not complying with recommendations resulting from a peer and / or performance-related reviews.
• Failure to meet professional supervisory accountabilities such as, mandatory reporting  of practice deficits ascertained through supervision or mentorship.
• Inconsistent knowledge and skills in practices for professional communication, business practices and conflict resolution.

Mitigation Strategies

Health Human Resource Activities

• Adopt a formal practice group strategy to embed anti-racism and DEIB evidence-based / best practices in all health human resource activities (e.g., recruiting, hiring, compensation, promotion, retention, and career development opportunities for employees and independent contractors).
• Adopt explicit written priorities, goals, values and beliefs statements for the practice group which prohibit discrimination and harassment in all health human resource, operational and care related activities. Ensure these are emphasized during the recruitment and orientation of employees, learners, second attendants, associates and partners to the practice group.
• Implement best practices strategies to reduce the risk of the practice group being treated as an employer of independent contractors (Government of Canada, 2023) (Association of Ontario Midwives, n.d.).
• Implement a formal conflict of interest protocol.
• Implement formal strategies to clarify roles, responsibilities and expectations of partners, associates, other independent contractors, learners, and employees for both clinical (e.g., workload, call model, sleep relief protocol) and business / operational accountabilities (e.g., administrative accountabilities, vacations and leaves of absence, purchasing and financial approval and authority processes); consider assigning a practice group partner as a mentor for all new partners and associates to facilitate successful integration into the practice group. 
• Adopt formal, fair and equitable strategies to manage permanent departures and temporary absences of partners, associates and employees (e.g., distribution of their case load, records management, notice to clients, transfer of clients).
• Adopt a standardized, best practice and legislation compliant (where applicable) protocol for managing terminations of employment as well as ending a contractual relationship with independent contractors.
• Obtain expert legal advise prior to proceeding with a termination of employment or ending a contractual relationship with an independent contractor if the person has:
  • Lodged a formal complaint in the past six months;
  • Returned from any leave of absence in the past six months;
  • Been involved in a workplace investigation in the past six months;
  • Been named in a regulatory body investigation;
  • Been named in civil or criminal litigation;
  • Actual or claimed health issues or may require accommodation.
• Adopt best practices for the retention, storage, and destruction of human resources records (Ontario Hospital Association, 2022)  (Alberta Health Services, 2022).

Psychological Safety 

• Implement formal and legislation compliant (as applicable) strategies to develop and maintain a work environment which fosters and supports:
  • Collaboration and collegiality; 
  • Professional and effective communication;
  • Assertive and respectful questioning and challenging of unsafe practices and decisions;
  • Zero tolerance of bullying, intimidation and discrimination in the work environment (American College of Nurse-Midwives, n.d.) (Canadian Medical Association, 2021) (Health Quality Council of Alberta, 2013) (Association of Ontario Midwives, n.d.).

Additional Considerations

Examples of strategies to support collaboration, collegiality and psychologically safety in the workplace

• Engagement surveys to measure engagement, support and coaching for career path and growth, promoting transparency, etc.  (American Medical Association, 2022);
• Consistently promoting the practice group's priorities, goals, values and beliefs statements;
• Scheduling regular partner, associate and employee meetings;
• Sharing terms of reference (where used), agendas and minutes with attendees;
• Actively seeking ideas and suggestions for improving quality of the workplace from all team members;
• Adoption of a clear and formal processes to identify and manage conflicts;
• Adoption of a clear and formal process to support, respond and investigate racism and discriminatory incidents and behaviours impacting partners, associates, employees, learners, clients and families (Garran & Rasmussen, 2019).

Contract Management

• Adopt best practices for developing and reviewing employment, associate and partner agreements; ensure all parties to the agreement are encouraged to obtain independent legal counsel and financial / accounting advise before signing (Association of Ontario Midwives, n.d.) (Canadian Medical Protective Association, 2013).
• Ensure agreements with associates and partners address (but not limited to):
  • Relationship between the practitioners (e.g., does the agreement explicitly state whether the practitioner is an employee or independent contractor);
  • Roles, responsibilities and obligations of the practitioner;
  • Decision-making authority for practice group matters;
  • Remuneration (profit and loss sharing associated with the business);
  • Dispute resolution mechanism;
  • Disability, death and departures (Association of Ontario Midwives, n.d.).
• Adopt a formal contract management process to manage legally binding agreements / contracts across the contract lifecycle (HIROC, 2017).

Additional Considerations

Several software solutions and apps are available to help smaller businesses streamline and reduce administrative efforts (e.g., automated workflows for signatures, renewals) associated contract management. Consider consulting your financial manager / consultant to determine which platforms / apps may work best.

• If not in place, purchase adequate and appropriate office / clinic / practice group insurance (distinct from professional liability insurance) to respond to legal action arising from the practice group’s business operations.

Fraud Prevention

• Implement formal strategies to reduce workplace fraud (e.g., payroll fraud, financial statement fraud, embezzlement / misdirection of money from the business to a person or a fictitious vendor, vendor fraud, asset misappropriation, data or intellectual property theft).

Additional Considerations

Examples of strategies to reduce workplace fraud:

• Segregation of duties to separate procurement, authorization, and payment approval processes;
• Segregation of duties for financial approvals, accounting and reconciliation, asset custody, and database administration;
• Adopting a code of conduct for employees, associates and partners (e.g., honesty, integrity, zero tolerance for fraud); 
• Formal checking and approval process for when vendor banking information / direct deposit information is changed;
• Conducting annual and random audits of internal controls in line with industry best practices;
• Anonymous, confidential reporting (e.g., whistleblower hotline) of potentially fraudulent or ‘suspicious’ behaviour;
• Adopting strategies to detect and investigate early signs / red flags of fraud in the workplace;
• Adopting a fraud response and management protocol which ensures an immediate and coordinated response for the timely investigation, containment, and remediation of the fraud (Salsbery, 2022) (Carrington & Rebasmen, n.d.) (Deloitte, 2009).
• Where electronic payment is in place, ensure there is an approval process in place, as well as use of encryption, authentication, and firewalls to secure information. Consider use of electronic fraud detection systems (e.g., email monitoring).

References

• Alberta Health Services. (2022, March). Records Retention Schedule (1133-01). Retrieved from https://www.albertahealthservices.ca/assets/info/hp/him/if-hp-him-records-retention-schedule.pdf
• American College of Nurse-Midwives. (n.d.). Bullying and Incivility in Midwifery. Retrieved from American College of Nurse-Midwives: http://www.midwife.org/acnm/files/acnmlibrarydata/uploadfilename/000000000320/PS-Bullying-in-Midwifery.pdf
• American Medical Association. (2022). Private Practice Playbook. Retrieved from American Medical Association: https://www.ama-assn.org/practice-management/ama-steps-forward/private-practice-playbook
• Association of Ontario Midwives. (n.d.). Bullying. Retrieved from Association of Ontario Midwives: https://www.ontariomidwives.ca/bullying
• Association of Ontario Midwives. (n.d.). Due Diligence by Potential New Partners. Retrieved from https://www.ontariomidwives.ca/due-diligence
• Association of Ontario Midwives. (n.d.). Legal Obligations. Retrieved from https://www.ontariomidwives.ca/legal-obligations
• Association of Ontario Midwives. (n.d.). Partnership Agreements. Retrieved from https://www.ontariomidwives.ca/partnership-agreements
• Canadian Medical Association. (2021, September 1). Bullying in the Workplace. Retrieved from Canadian Medical Association: https://www.cma.ca/bullying-workplace
• Canadian Medical Protective Association. (2013, August). Partnerships with other physicians. Retrieved from https://www.cmpa-acpm.ca/en/membership/protection-for-members/principles-of-assistance/partnerships-with-other-physicians
• Carrington, N., & Rebasmen, M. (n.d.). Responding to fraud: doing nothing is not an option. Retrieved from Deloitte: https://www2.deloitte.com/ch/en/pages/financial-advisory/articles/responding-to-fraud-doing-nothing-is-not-an-option.html
• Deloitte. (2009). Fraud response management: Is your organization prepared to execute an efficient and effective response? 
• Garran, A. M., & Rasmussen, B. M. (2019). How Should Organizations Respond to Racism Against Health Care Workers. AMA J Ethics, 21(6).
• Government of Canada. (2021). Canadian Human Rights Act (R.S.C., 1985, c. H-6). Retrieved from Justice Laws Website: https://laws-lois.justice.gc.ca/eng/acts/h-6/
• Government of Canada. (2023, February 14). Determining the Employer/Employee Relationship - IPG-069. Retrieved from https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/employer-employee.html
• Health Quality Council of Alberta. (2013, March). Managing Disruptive Behaviour in the Healthcare Workplace. Retrieved from Health Quality Council of Alberta: https://hqca.ca/wp-content/uploads/2021/10/Disruptive_Behaviour_Toolkit_042413.pdf
• HIROC. (2017, October). Contracts - Overview of Key Principles. Retrieved from https://www.hiroc.com/resources/risk-notes/contracts-overview-key-principles
• HIROC. (2017, May). Just Culture. Retrieved from https://www.hiroc.com/resources/risk-notes/just-culture
• Ontario Hospital Association. (2022, September). Records Retention Toolkit: A Guide to the Maintenance and Disposal of Hospital Records. Retrieved from https://www.oha.com/Legislative%20and%20Legal%20Issues%20Documents1/Records%20Retention%20Toolkit%2C%20September%202022.pdf
• Salsbery, N. D. (2022). Fraud is suspected: Now what? Retrieved from https://www.journalofaccountancy.com/issues/2022/aug/fraud-suspected-dos-donts-auditors.html