Canada: Report Recommends That The College Of Physicians And Surgeons Of Ontario Change How It Investigates Complaints And Investigative Reports

Last Updated: May 18 2018
Article by Robert Barbiero

 On April 30, 2018, the Ministry of Health and Long-Term Care made public Streamlining the Physician Complaints Process in Ontario, a report written in 2016 by the Honourable Justice Stephen Goudge who retired from the Ontario Court of Appeal in 2014 (the "Report"). The Report makes a number of far-reaching recommendations on how to streamline the College of Physicians and Surgeons of Ontario ("CPSO")'s investigative and discipline processes. What follows is a summary of some of the major proposed changes to the CPSO's investigative process. The recommended changes will be of interest to physicians and other health professionals because, if adopted by any health regulatory College, members may face fewer meritless complaints and / or overly broad registrar investigations.

The Report begins by highlighting that the CPSO receives the largest number of complaints against physicians of any health regulator in Canada. Moreover, the report notes that approximately 80% of all complaints filed with the CPSO and a smaller number of registrar's investigations result in either no action or insignificant action being taken against the physician. Moreover, the Report found that only 0.30% of all investigative files opened by the CPSO result in a fully-contested discipline hearing. The Report goes on to find that "more time and money is spent on a disposition in Ontario than in other jurisdictions, with little apparent benefit to the public in terms of better or safer physician services". As a result, the Report concludes that "too many complaints and investigations are in the system too long". In an effort to make the CPSO's investigative process more efficient, the Report makes a number of potentially far reaching recommendations.

1. Appoint a Complaints Director

The Report recommends that the CPSO appoint a "Complaints Director" to review each new complaint filed with the CPSO and dismiss meritless complaints. Specifically, the Report recommends that the Complaints Director be empowered to, among other things, dismiss a complaint where he or she is satisfied that there is no reasonable prospect of an outcome other than the CPSO's Inquiries, Complaints and Reports Committee (the "ICRC") dismissing the complaint. However, the Report recommends that where the Complaints Director does dismiss a complaint, he or she provide the complainant with written reasons for the dismissal and an opportunity to appeal the dismissal to the ICRC. Although sections 26(4)(5) of the Health Professions Procedural Code (Being scheduled 2 to the Regulated Health Professions Act, 1991 S.O. 1991, c. 18 (the "Code")) empower the ICRC to dismiss a complaint which it finds to be "frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process", the process for doing so is time consuming. Specifically, the ICRC must first give the complainant and the member notice of its intention to dismiss the complaint. Next, the complainant and the member are given an opportunity to make written submissions within 30 days. It is only after the ICRC has reviewed those written submissions that it can dismiss the complaint under sections 26(4)(5) of the Code. Thus, the Report's recommendation to appoint a Complaints Director may allow the CPSO to dismiss meritless complaints more expeditiously. As a result, members may be spared having to contend with spurious complaints.

2. Create a Patient Advocate Position

The Report recommends that the CPSO create a "Patient Advocate". The Patient Advocate would be required to contact the complainant upon the filing of a complaint. In particular, the Patient Advocate would clarify the substance of the complaint and make the complainant aware of the jurisdictional limits of the ICRC and / or the Discipline Committee, i.e. neither committee can award damages, order the Member to render treatment to the complainant, etc. The Report opines that a Patient Advocate may be able to educate complainants such that more complaints are withdrawn because complainants understand that the subject matter of the complaint does not fall within the scope of the CPSO or the remedy sought by complainant cannot be awarded by a health regulatory College. Again, should this recommendation be adopted, members could find themselves having to spend less time contending with meritless complaints.

3. Limit the Scope of Registrar's Investigations

Under section 75 of the Code, a health regulatory College can, under several circumstances, commence an investigation into a member's practice, commonly referred to as a "registrar's investigation". The Report found that a registrar's investigation is typically much more time consuming and expensive to investigate than a complaint. The Report noted that, on average, each registrar's investigation costs four times as much as a complaint for the CPSO to process. Thus, the Report recommends that, when a registrar's investigation is commenced, the registrar inform the physician of the precise conduct at issue and the registrar's basis for starting an investigation. The Report explains that having the registrar precisely identify the conduct at issue may "help to keep the Registrar's Investigations properly focused and less open to challenge [by the physician]". Similarly, the Report recommends that any patient chart review or audit completed as part of a registrar's investigation be limited to ten (10) patient charts with the CPSO investigator provided with the discretion to review more charts if he or she has "reasonable cause for doing so". If adopted, these recommendations may help reign in registrar investigations both in scope and number. They may also help members better understand the focus of an investigation. In turn, members would be in a position to more meaningfully prepare for and respond to the reports arising from such registrar's investigations.

4. Empower the ICRC to Make Conditional Referrals to the Discipline Committee

The Report recommends that the ICRC be empowered to refer matters to the CPSO's Discipline Committee subject to conditions which, if met, would result in the complaint being disposed of by the member satisfying those conditions. The Report reasons that the CPSO could achieve substantial cost savings and efficiencies by way of this disposition as it would allow the ICRC to address conduct which may constitute professional misconduct without the need to refer a physician to the Discipline Committee for a contested hearing, which can last from days to weeks. Such a change could help members avoid having to endure time consuming, stressful and, potentially, risky discipline hearings.

Conclusion

In short, the Report makes a number of recommendations which attempt to reduce the amount of time which the CPSO takes to investigate complaints and registrar investigations. Many of those recommendations centre on empowering the CPSO to quickly dismiss meritless complaints and educating complainants about the complaint process. If adopted, these recommendations could help members avoid meritless complaints and overly broad registrar investigations. Given the toll which such investigations can take on members and the CPSO resources they consume, such changes would appear to be in the interest of all parties. However, it remains to be seen which, if any, of the above recommendations are adopted by the CPSO or whether another health professions regulatory College adopts some of the Report's recommendations to address its own investigative process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Robert Barbiero
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions