Working framework for applying remediation and due process to unprofessional behavior and/or poor academic performance
The Program Directors’ Handbook notes that the “spirit of academic due process at universities involves a step-by-step process, with multiple inputs, written warnings, opportunities and resources for resident remediation, and resident retention whenever possible” . This chapter further applies due process in this context.
Due process in academia is especially relevant when there is a student grievance. It ensures that the rights of the student are protected and that the individual can challenge the entire process and/or use the grievance process if desired. Most universities have grievance committees, ombudsmen, and other pathways and people to contact for these complicated situations.
In orthopaedics, PDs use the concept of due process when they are concerned that the resident’s unprofessional behavior or academic performance is serious and could result in termination. Before any action in these situations, the PD ought to consult the departmental Resident Handbook, essentially the “Constitution” for educational activities .
How is “due process ” defined in the legal arena? The concept of due process in law is associated with the Fourteenth Amendment to the Constitution of the United States where the concept of “due process of law” is imbedded . In context, “No state shall … deprive any person of life, liberty, or property, without due process of law” .
Student rights are also mentioned discussed in the legal definition of due process. The school or institution that the student attends has written rules and policies outlining the due process procedures both students and the institution must follow to make sure that a student has a fair hearing. The idea of due process is that “no one should be assumed to have violated any laws, regulations, or ethical codes without first having a fair hearing in front of people who can judge him or her impartially, according to objective procedures, and without prejudice” . The Supreme Court in 1974 heard the case of Bass VS. Lopez, a case involving students suspended without a hearing, and ruled that students have a right to due process in school .
Tulgan et al. discussed the development of termination policies for disruptive residents. These authors reported on their strong policies which withstood a legal challenge, and noted that strong policies are the “ultimate legal protection” . Courts have generally sided with educational institutions when policies are in place and followed. Interestingly, Tulgan et al. noted that guarantees of due process for both a resident and his/her institution included the following: an unbiased tribunal; notice of the proposed action and grounds for it; opportunity to present reasons why the proposed action should not be taken; the right to present evidence, including the right to call witnesses, the right to know opposing evidence, the right to cross-examine adverse witnesses, and the right that the evidence be based exclusively on the evidence presented; and the requirement that the tribunal prepare written findings of fact and reason for its decision dependent on severity . Most departments of orthopaedic surgery have all of these elements included in their policies and procedures handbook for orthopaedic residents.
A Rational Approach to Remediation and Due Process in Orthopaedic Surgery
The most common problems for the PD are the resident with a professional behavior problem or poor academic performance. There is a spectrum of problems that residents can have, from “simple and specific on one end of the spectrum, to global and complex on the other” . An isolated low OITE score might require assigning a faculty mentor and a personalized study program. More global educational deficiencies (low OITE score, poor rotation evaluations, failure to progress in psychomotor skill milestones, etc.) would likely involve, at a minimum, educational mentoring and remediation by multiple faculty, prescribed review materials with standardized exams (e.g., AAOS ResStudy, Orthobullets), and psychomotor skill remediation sessions with faculty members in our arthroscopy/soft tissue skill laboratory. Determining the underlying cause of a resident’s problem(s) is critical in order to be able to choose the appropriate remediation approach. The possibility of substance abuse and psychological/psychiatric issues should be considered early on, and the individual might need to be referred for the appropriate screening for substance abuse and psychological/psychiatric issues.
An initial meeting between the problem resident and the PD is a recommended first step . By that point, the PD has usually received written or verbal input from others (e.g., faculty members, other residents, mid-level providers, other departments). The PD is acting almost as the third party (like a “mediator”) by mediating issues or concerns among the parties involved. The PD needs to decide quickly on the scope and magnitude of the resident’s problem(s), and whether it is best to start with mediation, remediation, or due process. Generally, one must not jump to due process unless there are issues of safety and immediate danger.
Although we have not discussed the details of mediation in this chapter, mediation is an informal approach and first step which is useful early on (Fig. 9.1). Mediation involves an initial conversation with the resident using active listening, a nonjudgmental approach, and careful planning for future steps so appropriate plans are in place and documentation is obtained. The PD needs to determine at the start whether the situation at hand is a problem or whether it is a dilemma. Problems, by definition, can be fixed and solved completely. Dilemmas cannot be solved, and can only be managed, generally by trade-offs and process improvement.