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Medical - Regulated Health Professions Act

. Griffith v. Health Professions Appeal and Review Board

In Griffith v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court sets out the disciplinary process under the Health Professionals Procedural Code, here with respect to the Dentistry Act:
Statutory Framework

[37] Dentistry is a self-regulated profession. The College is the regulatory body established by statute to regulate and govern the members of the profession of dentistry in Ontario. The statutory scheme governing the College is contained in the Regulated Health Professions Act, 1991 (the “RHPA”),[10] the Health Professions Procedural Code (the “Code”),[11] the Dentistry Act, 1991,[12] and the regulations established thereunder.

[38] In carrying out its objects, the College has an express duty to serve and protect the public interest.[13] The College’s other objectives include establishing and maintaining standards of practice and of professional ethics, and promoting continuing competence among its members.[14] It does these, in part, through a complaints and discipline process.

The Inquiries, Complaints, and Reports Committee

[39] The Code establishes seven committees of the College, one of which is the ICRC.[15]

[40] The ICRC’s role is to assess complaints and Registrar’s reports, conduct or initiate investigations and fact-finding, and refer matters to adjudicative committees for determination, if appropriate.[16]

[41] The ICRC is made up of dentists and public members. In this case, the panel of the ICRC consisted of two dentists and one layperson.

[42] Before disposing of a complaint or a report, the ICRC must consider the submissions of the member, and make reasonable efforts to consider all records and documents it considers relevant to the complaint or report.[17] The ICRC does not hold “in person” hearings nor does it hear oral evidence. All decisions are made on the basis of a paper record.

[43] Section 26(1) of the Code provides that the ICRC may do any one of the following at the conclusion of its investigation:
(a) refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee (following which the Discipline Committee will hear and determine allegations of professional misconduct);

(b) refer the member to a panel of the ICRC for incapacity proceedings (following which the Fitness to Practise Committee will hear and determine allegations of incapacity);

(c) require the member to appear before a panel of the ICRC to be cautioned; or

(d) take action it considers appropriate that is not inconsistent with the RHPA, the Code, the Dentistry Act, the regulations under those Acts, or the College’s by-laws. This includes requiring the member to complete a SCERP.[18]
[44] In 2017, the Code was amended to require regulated health colleges to provide greater transparency to the public regarding complaints and discipline against their members.[19] As a result, the College’s public register must now contain a notation of every caution and every SCERP that a member receives from the ICRC.[20]

HPARB’s Review of ICRC Decisions

[45] In the case of a complaint to the College, if the ICRC elects not to refer a member to discipline or incapacity proceedings, the complainant or the member who was the subject of the complaint may request the HPARB to review the ICRC’s decision.[21] In its review, the HPARB is to consider either or both the “adequacy of the investigation conducted” and/or “the reasonableness of the decision.”[22]

[46] In conducting a review, the member and the complainant are entitled to make submissions and respond to the submissions of the other party.

[47] Following its review of an ICRC decision, the HPARB may:
(a) confirm all or part of the decision;

(b) make recommendations to the ICRC that the HPARB considers appropriate; and

(c) require the ICRC to do anything it or a panel may do under the RHPA and the Code, except request the Registrar to conduct an investigation.[23]
[48] There is no statutory right of appeal from decisions of HPARB.[24]
. Griffith v. Health Professions Appeal and Review Board

In Griffith v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court considered the different roles of cautions versus disciplinary steps when issued by the ICRC (Inquiries, Complaints, and Reports Committee) under the RHPA:
[90] The Applicant argues further that HPARB’s reasons are inadequate because they failed to give due consideration to his concern that the Caution would negatively impact his career and livelihood. This argument also lacks merit.

[91] Vavilov is clear that it is only where “the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes.”[64] In imposing this requirement, the Court relied upon its own decisions in Baker and Kane, which held that a:
higher standard of justice is required when the right to continue in one’s profession or employment is at stake… A disciplinary suspension can have grave and permanent consequences upon a professional career.[65]
[92] This case does not meet that threshold. The Applicant is not at risk of a disciplinary suspension, or of losing his employment. The Applicant’s “concern” that his livelihood will be affected by the publication of the Caution is not based in evidence. As held by this Court in Silverthorne, (where the caution in issue was published on the internet, albeit not by the College) mere “perceptions” that an advisory caution may have an effect on one’s career are insufficient to impose a higher standard of Reasons than would otherwise be required.[66]

[93] This court recently considered in Geris v. Ontario College of Pharmacists, 2020 ONSC 7437, whether the requirement that a caution must now be published on the College’s Register by statute moves a caution from being remedial to a sanction. Penny J., writing for the court, held:
[33] Cautions and educational or remedial directions are not meant as sanctions or penalties but are meant to benefit the practitioner and the patients by avoiding future complaints of a similar nature: Armogan, para. 9.[67]

[34] It is true, as the applicant argues, that cautions and remedial orders regarding attendance at education programs are now placed on the public register. This was not the case when a number of the leading cases dealing with such orders were decided. However, the fact that the Legislature felt it would be in the public interest to make health disciplines bodies publish remedial orders of the kind issued by the ICRC in this case does not fundamentally alter the preventive, educational and remedial nature of such orders. I cannot agree that an entirely different approach must be taken now that remedial orders appear on the public register.

[35] Among other things, there is a mechanism in the legislation to remove entries from the public register where “the information is obsolete and no longer relevant to the member’s suitability to practise.”

....

[41] Directing the applicant to attend and receive an oral caution is not a penalty. Rather it is an educational and remedial measure intended to prevent the applicant from having a similar experience in the future and to protect the public…The applicant is asking this court to re-weigh the relevant factors and come to a different result. That is not the role of any court on judicial review, especially where remedy is concerned: Mitelman v College of Veterinarians of Ontario, 2020 ONSC 3039.
[94] Similarly it is not the role of this court to reweigh the relevant factors and come to a different result than that of the ICRC and HPARB. For these reasons, I would not accept the assertion of the Applicant that the Decision of HPARB was unreasonable
. Tanase v. College of Dental Hygienists of Ontario

In Tanase v. College of Dental Hygienists of Ontario (Ont CA, 2021) the Court of Appeal confirmed prior case law on when 'sexual abuse' occurs within the meaning of the Health Professions Procedural Code:
[1] Ontario has a “zero-tolerance” policy for sexual abuse by members of the regulated health professions in Ontario. Members are guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, if they commit “sexual abuse” against a patient, which is defined in s. 1(3) as including “sexual intercourse or other forms of physical sexual relations between the member and the patient”.

....

Leering remains good law

[24] Leering involved a chiropractor who was living with the complainant in a conjugal relationship when he began treating her as a patient. He treated her 28 times during the course of their relationship, which lasted for under 12 months, and billed her for the treatments. A dispute over fees owing at the end of the relationship led to a complaint to the College, which determined that the chiropractor should be charged with sexual abuse. The Discipline Committee of the College of Chiropractors found the chiropractor guilty of sexual abuse and imposed the mandatory penalty of revocation of registration. The Divisional Court reversed the decision on appeal, holding that the Discipline Committee was required to inquire into whether the sexual relationship arose out of a spousal or professional relationship in order to determine whether there was sexual abuse.

[25] The Court of Appeal held that the Divisional Court erred by imposing an obligation on the Discipline Committee to inquire into the nature of the parties’ sexual relationship. As Feldman J.A. explained, at para. 37:
The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a healthcare professional-patient relationship. There is no further inquiry once those two factual determinations have been made.[1]
[26] The appellant argues that the Legislature “overruled” Leering by amending the Code in 2013 to authorize individual colleges to enact regulations permitting practitioners to treat their spouses. Although the spousal exception regulation for dental hygienists was not in place when treatment in this case took place, the appellant says that the Legislature’s “clear rebuke” of Leering means that the decision ought to be revisited in order to give the Discipline Committee the discretionary authority to determine whether treatment of a spouse involves actual sexual abuse. “On any reasonable view”, the appellant asserts, “the concerns about exploitation of a power dynamic or the inducement of consent simply do not arise where the professional and patient are in a pre-existing spousal relationship”. Moreover, the appellant argues, the mandatory revocation provisions “were never intended to apply to a member who, on a limited basis, treats his or her spouse or romantic partner where the romantic relationship preceded any treatment rendered.”

[27] This argument must be rejected. In essence, it invites the court to convert the bright-line rule prohibiting sexual relationships into a standard requiring the nature and quality of sexual relationships between practitioners and patients to be evaluated to determine whether discipline is warranted in particular circumstances. It finds no support in the language of the Code and would frustrate its clear purpose. Moreover, it begs the question by assuming that no concerns arise in the context of pre-existing sexual relationships, regardless of the nature or duration of those relationships.

[28] The Code is clear when it comes to sexual relationships. It is neither ambiguous nor vague. Professional misconduct is established once sex occurs between a member of a regulated health profession and a patient. That the misconduct is termed “sexual abuse” neither mandates nor permits an inquiry as to the nature of a sexual relationship. The Legislature did not prohibit only sexual relationships that are abusive, leaving it to disciplinary proceedings to determine what constitutes abuse; it prohibited sexual relationships between regulated health practitioners and their patients per se. This approach obviates the need for discipline committees – bodies composed of health care professionals and laypeople – to inquire into the nature of sexual relationships and whether, as the appellant would have it, they give rise to “actual sexual abuse” because they arise out of coercion or exploitation. Justice Feldman’s observation in Leering, at para. 41, remains apt:
The discipline committee of the College has expertise in professional conduct matters as they relate to chiropractic practice. Their expertise is not in spousal relations or dynamics, nor would it be fruitful, productive or relevant to the standards of the profession for the committee to investigate the intricacies of the sexual and emotional relationship between the professional and the complainant. That is why the Code has defined the offence in such a way that the fact of a sexual relationship and the fact of a doctor-patient relationship are what must be established.
[29] The purpose of the rule-based approach established by the Code is to avoid any doubt or uncertainty by establishing a clear prohibition that is easy to understand and easy to follow. Sexual relationships with patients are forbidden and members of the regulated health professions must govern themselves accordingly, regardless of whether the rule seems harsh or unfair in their personal circumstances.

[30] Rules may be subject to exceptions, of course, but the Legislature’s decision to amend the Code to permit colleges to establish a spousal treatment exception cannot be taken to have overruled Leering. On the contrary, it acknowledged the decision while permitting individual colleges to mitigate the strictures of the rule by adopting a narrow and specific exception if they consider it appropriate to do so. And while that exception has since been adopted by the College of Dental Hygienists, it came into effect only after the appellant provided the treatment that gave rise to the finding of misconduct in this case. The appellant was required to comply with the rule prohibiting sexual relationships with patients at all relevant times – even after he and S.M. married.

[31] That said, it is important to clear up a misconception that underlies the decisions of both the Committee and the Divisional Court, as well as the appellant’s submissions, all of which use the term “spouse” without regard to its definition in s. 1(6) of the Code.

[32] As I have said, that definition is narrow and specific. It requires either (i) marriage or (ii) cohabitation in a conjugal relationship for a minimum period of three years. In other words, the exception applies only to sexual relationships of some permanence. Even if the exception had been in effect when he treated S.M. during their cohabitation in a conjugal relationship prior to their marriage, the appellant would have been in violation of the rule because that relationship had not run for the required three-year period.

[33] The appellant’s marriage to S.M. does not have retrospective effect, nor does it operate to render the definition of spouse irrelevant in the application of the exception. Treatment cannot be given to sexual partners outside the context of a spousal relationship, as defined by the Code, regardless of whether marriage occurs subsequently.

[34] In summary, the decision of this court in Leering remains good law. The Committee’s decision that the appellant’s actions violated the Code is correct. Even if it had been in force at the relevant time, the spousal exception would not have operated to excuse the appellant’s pre-marital treatment of S.M. after they began their sexual relationship. And because it was not in force, the spousal exception did not excuse the appellant’s post-marital conduct either.
. Longman v. Ontario College of Pharmacists

In Longman v. Ontario College of Pharmacists (Div Ct, 2021) the Divisional Court sets out the role of the ICRC under the Regulated Health Professions Act:
[33] The ICRC performs a screening function. Its role is to investigate concerns and determine whether the matter warrants a referral to discipline on account of professional misconduct or incompetence or some lesser remedial measure including closing the file is called for. See: Léger-Legault v. Ontario College of Teachers (2008), 2008 CanLII 54307 (ON SCDC), 242 OAC 126 (Div. Ct.) at para. 10.

....

[43] The Applicant objects to the ICRC’s requirement that he receive an oral caution and take a course in medication safety. He submits that both are unduly severe in the circumstances, given that he has taken responsibility for his error in the September 16, 2018 refill. Further, because both the caution and the educational requirement are posted on the College’s website and made public, he submits the requirements amount to a penalty which is not warranted.

[44] Cautions and educational directions are remedial in nature and not sanctions or penalties. They are meant to improve the Member’s practice and benefit the public they serve by avoiding future concerns. See: Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 (Div. Ct.) at para. 11; Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (Div. Ct.) at para. 10.
. King v. Gannage

In King v. Gannage (Div Ct, 2020) the Divisional Court reviewed Regulated Health Professions Act, 1991 Code complaint procedure [s.25(1)], which - oddly I find - allow for third party complaints. I find the case is interesting as the complaint is not patient-specific, yet it still got the amount of legal attention that it did. It was essentially a specific therapy complaint (chelation therapy for autism) advanced by an advocate, separate from any patient complaints. The case was not dismissed on standing grounds, but on what was essentially lack of evidence and the limited investigative function of the ICRC ['Incidents, Complaints and Reports Committee' under the RHP Act] [paras 39-44]. If the evidence case was stronger it may have allowed for a broad-based challenge on any specific therapeutic approach::
The Legislative Framework

[16] In order to deal with the merits of this application, it is useful to describe the complaint process under the Regulated Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”).

[17] The College is the regulatory body for the medical profession in Ontario. Its mandate is to serve and protect the public interest by governing the medical profession (Code, s. 3(2)). One of its key functions is the investigation of its members for professional misconduct or incompetence.

[18] Investigations of members can occur either after the receipt of a complaint filed with the Registrar regarding the conduct or actions of a member (Code, s. 25), or through the appointment of an investigator by the Registrar, if she believes, on reasonable and probable grounds, that a member has committed an act of professional misconduct and the ICRC has approved the appointment of investigators (Code, s. 75(1)(a)).

[19] In either case, the ICRC [SS: 'Incidents, Complaints and Reports Committee'] must form a panel to investigate the complaint or to consider the investigator’s report (Code, s. 25(1)). When a patient complains about the conduct of a physician, he or she is taken to have given implicit consent to the physician’s disclosure of information about the patient in order that the physician can respond to the complaint (Code, s. 25.2). The patient may also be asked to sign a written consent for the release of records from other record-holders.

[20] In the case of a third-party complaint, such as the one in this proceeding, there is no implicit patient consent to the disclosure of personal medical information. If the ICRC determines that patient information is required, it may request the Registrar to appoint an investigator pursuant to s. 75(1)(c) of the Code. Such an investigator would have the same powers as an investigator appointed under s. 75(1)(a), allowing him or her to exercise powers under the Public Inquiries Act, such as the power to enter the physician’s place of practice and examine or remove anything relevant to the investigation.

[21] The ICRC plays an important role in screening complaints and reports and deciding whether further action is necessary. Subsection 26(1) of the Code sets out the powers of the ICRC panel. After investigating a complaint or considering a report, the panel must consider the member’s submissions and make “reasonable efforts to consider all records and documents it considers relevant to the complaint or the report”. It then has a broad discretion to decide whether to refer a specified allegation of a member’s professional misconduct to the Discipline Committee; take some other remedial action, such as a caution or the member’s attendance at a remedial program; or take any action it considers is not inconsistent with the health professions Act, the Code, the regulations or by-laws.

[22] The ICRC described its role in its reasons in the present case as follows (Reasons, p. 2):
The Committee’s role, broadly, is to protect the public by determining whether remedial action is necessary and, if so, what action would best enhance the quality of medical care of the particular physician, and the general quality of medical care in Ontario, by reinforcing the standards of practice.



In a small number of cases, the Committee may refer a specified allegation of professional misconduct or incompetence to the College’s Discipline Committee. The Committee will do this where it believes that referral to the Discipline Committee is in the public interest, and that the available information has a reasonable chance of supporting a successful prosecution.
[23] Subsection 29(2) of the Code permits the complainant or the member who is the subject of a complaint to request a review of the ICRC decision by the Board, unless the decision is a reference to the Discipline Committee or a reference pursuant to s. 59 for incapacity proceedings. Pursuant to s. 33(1), there are two grounds that may be raised on review before the Board:
(a) the adequacy of the investigation conducted; and/or

(b) the reasonableness of the decision.
[28] The problem with her approach is that she ignores the role of the ICRC. It is a screening body, not a factfinding body. It has the responsibility to consider a member’s practice to determine whether there are grounds to take disciplinary or remedial action, given the apparent failure to meet the standards of professional conduct. As stated by the Divisional Court in McKee v. Health Professions Appeal and Review Board, 2009 CanLII 55293 (at para. 13):
The nature of the powers conferred upon the Complaints Committee is indicative of its role in the statutory scheme: it has no power to make determinations or findings of fact concerning incompetence, incapacity, failure to meet standards or professional misconduct. Rather, its role is to screen complaints and to stream them. By reason of its composition and the ambit of its jurisdiction, the Complaints Committee is a specialized body having particular sensitivity and experience with issues that arise in complaints concerning members of the College. As well, it is apparent from the powers conferred by the legislation that the Complaints Committee is vested with the discretion as to where and how to allocate the College’s resources in dealing with complaints it receives.
. Geris v. Ontario College of Pharmacists

In Geris v. Ontario College of Pharmacists (Div Ct, 2020) the Divisional Court considered the role of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the Ontario College of Pharmacists. Such bodies are common with Regulated Health Professions Act-governed professions:
[32] The ICRC performs a screening function. It does not make findings of disputed fact and is not required to resolve every factual dispute through additional investigation or, for that matter, in its reasons. Neither does it make findings of professional misconduct. Rather, it investigates concerns and determines whether they warrant a referral to discipline or other, less intrusive, responses: Armogan v Health Professions Appeal and Review Board, 2013 ONSC 3095 (Div. Ct.) at para. 5.

[33] Cautions and educational or remedial directions are not meant as sanctions or penalties but are meant to benefit the practitioner and the patients by avoiding future complaints of a similar nature: Armogan, para. 9.


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