The dreaded day has suddenly come, and your professional college informs you that a patient or someone you assessed months ago for an auto insurance claim has lodged a frivolous complaint under the Regulated Health Professions Act. (“Act”) (The college won’t use the word “frivolous,” of course.) Draw a deep breath and banish any thoughts of making an angry response. Instead, consider the Japanese martial art of Jujitsu , where one’s strongest weapon is the ability channel the force of one’s opponent against him.
Under schedule 2 of the Act, named the Health Professions Procedural Code (“Code”), every health profession college in Ontario maintains an Inquiries, Complaints and Reports Committee (ICRC) to investigate and vet complaints against members. It does not matter whether you are a doctor, a psychologist or an occupational therapist. The Code requires each college to follow the same general procedure. While it may seem that this stage may seem innocuous because the ICRC has no power to sanction a penalty, it would be a big mistake not to take it seriously. Not only is the record of proceeding started at this stage, it is also here that the health professional has his or her last real chance to shut down a complaint before it proceeds to a contentious discipline process. The beginning of a complaint is the time to devote one’s energies in crafting the best and most cogent response to a complaint. Otherwise, you may be exposed to regulatory sanctions that can stain your record unnecessarily and cause you endless professional grief.
Here are some basic tips for anyone who has received a letter from their college informing them of a groundless complaint:
- Gather all information
- They have allegations. You have the facts. This is a tremendous informational advantage. Use it. You can only use it to your advantage by gathering all the documents, such as emails, letters, clinical notes and records, and preserve them for countering the allegations against you.
- Get advice
- Don’t try to respond to a complaint without legal help. You wouldn’t want a lawyer to treat your leg injury. Why would you assume you can represent yourself in a legal process? Chances are good that your response will be insufficient and lead to more questions from the ICRC. Most professional insurance provide some level of financial coverage for hiring legal counsel. Check the policy, contact your broker or insurer. Help is not that far away, so use it.
- Check the College standards
- It is a basic rule of natural justice that one cannot be condemned for a specific complaint unless it is written down and published for all to review. While this may not help you for a general allegation of unethical conduct, most complaints deal with specific practice issues. Colleges are mandated to publish standards, in order to fulfill their public interest mandate. Check the appropriate standard and see what it says. It will, if not anything else, narrow the scope of the response you have to make.
- Think before you SCERP.
- You should not prematurely agree to a Specified Continuing Educational or Remediation Program (SCERP) if there are no real grounds for ordering it. Don’t think that agreeing to it will be an easy way to avoid discipline. Usually, if such a sanction is pointless, say that it is pointless and ask for the investigation to be concluded with no action taken against you. The only time you should be agreeing to a SCERP is where you are aware of valid grounds for the complaint.
- Don’t panic
- Sometimes we admit to things we should not admit, out of a sense of responsibility or civility. But if we never committed the error or misconduct, then the admission becomes the focus of the complaint and you can get into trouble. The college is required to give you 30 days to respond. Use it, first to compose yourself, and then to respond properly.
- Don’t get angry
- Often, it is not about you. In the case of insurer assessments, the people you examined might be angling to get you to change a report or to admit the assessment was deficient. While it can be frustrating to get dragged into someone’s legal dispute, an angry response will only cause your main messages to be masked. If the ICRC cannot dispose of the complaint because it is hard to read past the anger, you are only increasing the chances of having the complaint referred to a regulatory or disciplinary committee.
- Don’t create unnecessary factual contests
- If a complaint is frivolous or abusive, it will usually not help to create unnecessary factual contests at this stage. Without admitting anything, a good response can be to make a submission that a complaint is lacking in merit even if what the complainant says is true or capable of being proven at a discipline hearing. This allows the ICRC to conclude that there is no point in referring the matter for a hearing because it would be a waste of time. If the conduct complained of is simply an exercise of clinical judgment that led to an adverse or unwanted result, there can be no sanction against you.
- Don’t assume the lawyer for the complainant is right
- If lawyers were always right, there would not be legal disputes. Lawyers retained by complainants are often unfamiliar with professional regulation and assume that a professional college has the jurisdiction or authority to help their clients in a motor vehicle accident claim or other process. One tried and tested method of steering the ICRC into inaction is to determine whether there is a valid legal basis or jurisdiction for the complaint. If the complaint is simply a means of circumventing the courts or other procedure, most professional colleges will decline to accept jurisdiction. They and their discipline committees are busy enough with complaints within their jurisdiction, to be interested in matters beyond their scope of operations.