Physiotherapy Alberta often receives calls from members and/or employers when the end of a working relationship becomes difficult. When this occurs, terminating the partnership can be likened to going through a “bad divorce.” As each party starts questioning the conduct of the other, the conversation can deteriorate with neither side able to agree to a workable solution. One or both individuals may turn to Physiotherapy Alberta for help.
Physiotherapy Alberta does not directly intervene in business matters. The parties will be referred to relevant Physiotherapy Alberta Standards and applicable legislative requirements. They will also be directed to specific College resources that can guide the discussions. The goal of these discussions must be to ensure the patient’s interests are central to any decisions made between the parties.
How often do employees change employment sites?
Changing employment sites multiple times over the course of a career has become the new normal for many Canadian workers. A 2014 Workopolis survey reported that 51% of Canadians spent less than two years in one job and that only 30% of employees remained with the same employer at the four-year mark.1 There did appear to be definite differences between generations. Gen Xers, who graduated in 1992, stayed at the same job for 3.4 years while Gen Y 2002 graduates only remained for 2.7 years.1 Contrast that to Baby Boomers, who tend to work for the same firm for 20 years or more, and the generational differences become more apparent.1
With these trends in mind, it is important for both employers and employees/contractors to prepare for the possibility of change. Advance planning is key to parting ways in a collegial manner and to ensure patient care is managed in an ethical and professional way.
The key issues
There are two key issues that need to be addressed when a physiotherapist leaves a practice.
Notification of patients
A frequent source of conflict between owners and physiotherapists is related to the notification of patients when a provider leaves a practice.
Client autonomy is paramount and unalienable.
Patients have the right to choose their health-care providers. No one “owns” the patient. The patient may choose to follow his/her physiotherapist to the new location or may decide to remain at the original clinic. The decision is the patient’s alone.
Physiotherapy Alberta expects patients with scheduled appointments to be provided with information they need to make an informed decision about their ongoing care. It is not acceptable for patients to arrive for a scheduled appointment and be informed their physiotherapist is no longer available. It is also unacceptable for an employer or clinic owner to withhold this information from patients because the relationship with the physiotherapist ended poorly or to avoid a business loss. Providing this information is not considered solicitation and would not contravene a non-solicitation clause in the contract.
Physiotherapy Alberta receives calls from owners concerned that the departing physiotherapist has taken a list of their patients' contact information. This information is considered part of the confidential patient record and can only be used, disclosed or accessed by authorized individuals for the purpose(s) consented to when it was collected. Once the physiotherapist has left the employer, they are no longer an authorized user and cannot access this private information. Unless the patient has specifically consented to the use of their contact information to notify them of staff termination or changes, it cannot be used by either the custodian or the physiotherapist for this purpose. Doing so could be considered a breach of privacy and the custodian of the records may be required to report it to the Office of Information and Privacy Commissioner of Alberta.
Custody of patient records
Privacy is a top priority.
Patients have the right to have their personal information remain private. Physiotherapists must ensure all patient records they have generated are secure and managed in accordance with the appropriate privacy legislation. There must be an agreement in place that identifies who will retain permanent custody of the patient record.
Often the employer/owner will retain custody of all patient records. This practice makes it easier for patients to find and request their information when they need it. The parties should also have a written agreement in place ensuring the physiotherapist’s ongoing access to patient records in the practice’s custody when necessary.
The physiotherapist may choose to retain custody of their own patient records. Although this is allowed, it is recommended that members carefully consider how they will comply with the legislation and ensure records are secure and accessible for the required timeframe.
There can only be one original patient record. A departing physiotherapist cannot take or be provided a copy of patient charts if the clinic owner has been identified as the custodian. The physiotherapist can only be provided a copy of the record with a written request by the patient or their agent. If the physiotherapist assumes the custodian role, they will take the original records and copies must not be left at the practice site.
What should be included in a contract? The “pre-nup”
Having a good “pre-nup” can go a long way toward minimizing the challenges when a working relationship is terminated. The reasons for parting ways may not always be amicable and can be very stressful. It is recommended that the parties have discussed these issues at the time of hire and have addressed them in the initial contract.
Know what is in your contract
Many contracts contain non-compete/non-solicit clauses designed to protect the owner's interests and limit what employees or contractors can do when they leave a clinic. Members are advised to thoroughly review their contracts, ensure they understand and agree to any restrictive covenants, and seek guidance from a lawyer before signing. The cost of seeking legal advice will be worth it. The Good Practice article: Employment Contracts can provide members guidance in this matter.
Identifying who will retain custody of patient records in a written agreement ensures the physiotherapist has ongoing access to individual patient records when necessary.
A contract clause that outlines processes to be followed when a physiotherapist leaves the practice is recommended. This clause should identify agreed-upon practices for how patients will be notified of a change in staffing and who will be responsible for providing the physiotherapist's contact information to the patient. A sample letter is provided as part of the Leaving a Practice Guide.
Leaving a Practice Guide
The Leaving a Practice Guide was developed by Physiotherapy Alberta to guide physiotherapists and their employers through the process of parting ways in a manner that is professional, collegial and holds the patient’s interest at its core.
Members are encouraged to review the Guide and discuss these issues with current or future employers.
Workopolis (2014) How many jobs to Canadians hold in a lifetime. Available at https://careers.workopolis.com/advice/how-many-jobs-do-canadians-hold-in-a-lifetime/ Accessed Oct. 8, 2019.
Patient Safety. Every Person. Every Time.
Regulating Alberta's physiotherapy profession and acting as an association by providing member services.