Interruption not valid reason to terminate residency
After a trial found him not guilty of sexual assault, a medical resident at McMaster University in Hamilton, Ont. was denied readmittance to the program.
Amitabh Chauhan worked in the university’s Plastic Surgery Postgraduate Medical Education Program for a few months but in 2011, he was arrested and charged with drugging and sexually assaulting a woman in 2003, and another woman in 2011.
Chauhan was suspended from the program as a result of the charges. As a resident, Chauhan was both a student and an employee of the Hamilton Health Sciences Corporation and St. Joseph’s Health System. Residents were covered by the Professional Association of Residents of Ontario (PARO) union.
On Sept. 25, 2014, he was found not guilty on all charges. On May 1, 2015, he applied to the College of Physicians and Surgeons of Ontario (CPSO) for reinstatement but on Oct. 8, the request was denied. Without the registration, Chauhan wasn’t eligible to work at the university or the hospitals.
He appealed to the Health Professions Appeal and Review Board (HPARB) and on July 12, 2017 he was reinstated.
McMaster then ordered Protect International Risk and Safety Services to review Chauhan’s case and found in a report “there is no evidence (Chauhan) has taken steps to reassure the administration and other members of the Department of Surgery, School of Medicine, or McMaster University that he does not pose a risk for encountering similar problems again.”
Chauhan’s history of “problematic sexual behaviour… raises reasonable and serious questions regarding his judgment, attitudes and insight.”
However, another report done by psychiatrist Graham Glancy found that Chauhan “has learnt from the circumstances that predisposed him to the allegations resulting in his criminal charges. He has had a significant amount of time to think about the situation and discuss things with his wife. He has since made an adjustment to his lifestyle that minimizes any risk or repetition of such allegations.”
A joint committee of the hospitals found that Chauhan’s conduct toward one of the women, who was a fellow student looking for advice, was “unprofessional and unethical,” especially considering Chauhan’s status as a mentor to her.
Chauhan’s request for reinstatement was denied and on June 25, 2018, PARO grieved it and says he should be reinstated by the hospitals and given back pay.
However, the hospitals countered and says the residency could not be restarted due to it originally being five years long and time having passed due to the six-and-a-half-year break.
Arbitrator William Kaplan (backed by fellow board members Joshua Tepper and Michael Wright Member) concluded that “the case must be decided on a just-cause standard and that the hospitals’ argument that the interrupted residency has come to an end and cannot be restarted must be dismissed.”
“Without doubt, in normal circumstances, the plastic surgery residency is five years. Quite clearly, medical residents are not employed indefinitely. And it is more likely than not that but for the events described in this award, Dr. Chauhan would have completed his residency in the allotted time. Obviously, that proved impossible, but interruptions are not unheard of,” says Kaplan. “The existence of a lengthy interruption — even if the reasons for it are far from salutary — cannot be an automatic barrier to resumption, particularly where the collective agreement contemplates various leaves and provides for the resetting of the residency clock.”
But Chauhan was not immediately ordered back to the program by the board. “Whether reinstatement, or some other outcome, the parties are to be first afforded the opportunity to agree, failing which, the matter may be brought back before us. We direct PARO and the hospitals to meet as soon as practicable in order to begin their discussions with the view to reaching agreement on an appropriate remedy,” says Kaplan.
Reference: Hamilton Health Sciences Corporation and St. Joseph’s Health System and Professional Association of Residents of Ontario. William Kaplan — arbitrator. Glenn Christie for the employer. Derrick McIntosh for the employee. June 20, 2019. 2019 CarswellOnt 9798
