Hospital’s Concerns About Psychiatrist’s Forgetfulness and Confusion Did Not Constitute Age Discrimination, Tribunal Rules
In a recent Human Rights Tribunal of Ontario decision, a psychiatrist alleged that the hospital’s decision to place him under supervision and conduct an investigation, which led to his resignation, was the result of age discrimination.
Psychiatrist Alleges Age Discrimination
The employee was a psychiatrist who worked for a hospital in the City of Thunder Bay, Ontario. He received his initial medical training in the late 1950s.He provided psychiatry services on a part-time basis and had been treating cases of developmental disabilities and brain injuries for many years without complaint.
However, in May 2018, the hospital advised him that it had received concerns about his quality of care and that the hospital would investigate these concerns. Some of these initial concerns included forgetfulness, confusion and an apparent difficulty with technology. Subsequently, he was put under supervision and the hospital retained an external expert to review his performance. Prior to 2018, he had never been under supervision. During the course of the investigation, the psychiatrist resigned.
The psychiatrist then filed a complaint with the Ontario Human Rights Tribunal, alleging that the concerns about his competence, the investigation into these alleged concerns and the hospital’s report to the College of Physicians and Surgeons of Ontario about him amounted to age discrimination. He alleged that these discriminatory actions forced him to withdraw his privileges and resign his employment with the hospital.
Prior to March 2018, the psychiatrist had in fact discussed his retirement on and off, however, he believed that the review of his practise had been motivated by a desire to sideline him with a view to taking credit for his work and to take control of funding. He claimed that he had been eligible for up to $1.1 billion in funding for treatments he invented while working for the hospital. Therefore, in his view, the hospital wanted him out of the way in order to take credit for the treatments he had developed and to collect the associated funding.
Tribunal Dismisses Psychiatrist’s Complaint as Unfounded
At the outset, the Tribunal stated that it had significant concerns about the psychiatrist’s credibility and reliability, finding that his answers were “often not responsive to questions put to him and tended to be rambling, incoherent and sometimes internally inconsistent.” Additionally, it found that his evidence was not in harmony with the factual circumstances of the matter. For instance, there was no evidence that his work for the hospital had put him in a position to obtain over a billion dollars in funding related to treatment he purported to have developed. In fact, there was no evidence that he was entitled to any additional funding for his work.
Instead, the evidence showed that the hospital had serious concerns about the psychiatrist’s ability to practise medicine. As a result, the hospital was obliged, pursuant to its legal and professional obligations, to investigate these concerns to ensure that the psychiatrist could continue to meet the required standard of care.
While the Tribunal acknowledged that some of the hospital’s initial concerns, such as forgetfulness and confusion, are characteristics stereotypically attributed to older people, it held that the hospital had not made any decisions about the psychiatrist’s practise and employability based on these concerns nor had it made assumptions based on his age. Rather, it found that the hospital had engaged in an evidence-based process to assess the psychiatrist’s actual abilities or deficiencies. Additionally, the psychiatrist had resigned before the hospital was able to complete its review.
Finally, the Tribunal addressed the technology issues the psychiatrist had encountered, stating:
“There was no evidence that the [psychiatrist]’s technology issues prevented him from practising medicine. Rather the issue was that the [psychiatrist] was using the wrong technology platforms to record or transmit patient information, which raised a privacy issue. There was no evidence that this technology issue was in any way connected to the [psychiatrist]’s age. I would also note that the [psychiatrist] did not request accommodation with respect to technology usage…”
As a result, the Tribunal held that the psychiatrist’s age had not been a factor in the hospital’s decision to review his ability to practise and dismissed his complaint.
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