The Regulated Health Professions Act (RHPA) is designed to ensure that the health professions are regulated in the public interest, that appropriate standards of practice are developed and maintained, and that individuals have access to services provided by the health professions of their choice and that they are treated with sensitivity and respect in their dealings with health professionals.

Investigations

Schedule 2 to the RHPA is known as the Health Professions Procedural Code (HPPC) and is deemed to be a part of each health profession Act. Section 25 of the HPPC deals with complaints received from the public about health professionals and prescribes how they are to be handled.

An alternate means of an investigation into a health professionals practice or behaviour can be instituted by Registrars of the various colleges under s.75 of the RHPA.

In either case, the matter comes before the Inquiries, Complaints and Reports Committee of the appropriate College.

All such investigations are designed to ensure that the public interest is protected by ensuring competent, safe and respectable health care.

A Health Professionals Rights

When a complaint is received or generated by a College the named health professional, known as a member, is to receive notice along with a copy of the complaint. The member then has thirty (30) days in which to provide their College with any submissions they wish to make to respond to the concerns expressed in the complaint or report. The complaint is also to be dealt with within one-hundred and fifty (150) days.

Withdrawal of a Complaint

If a complainant wishes to withdraw their complaint, the Registrar of the College may allow this if they feel it is within the public interest to do so.

A Recent Case

The Ontario Court of Appeal (OCA) has recently had to address the proper balance to be used when dealing with the interplay of a member’s right to procedural fairness and the public interest.

In this case, a complaint was received by the College from a member of the public. No notice was given to the member and the complaint was not dealt with within one-hundred and fifty days.

Some months later, the College spoke with the complainant and advised that she could continue with her complaint, or alternatively, that the complaint could be withdrawn, after which the Registrar would commence their own investigation.

The latter option was chosen, an investigation was commenced, and the member was given notice. The member responded with only cursory comments in response to a detailed investigation report. As a result, the matter was referred to the Discipline Committee and a hearing scheduled.

Lower Court Decisions

The member asked the Discipline Committee to quash the complaint, arguing that the College had lost jurisdiction by reason of its failure to follow the process mandated by the RHPA.

The request was denied by the committee majority deciding that there had been no prejudice to the member. A dissenting member felt there had been an abuse of process in that the College had buried its procedural error through the suggested withdrawal and the commencement of a Registrars investigation.

The Ontario Divisional Court reversed the Discipline Committee based on the failure to follow the HPPC which it found had resulted in a loss of jurisdiction and, additionally, for being unreasonable in allowing the withdrawal of the complaint.

Balancing the Two Interests at the OCA

The Discipline Committee is required to interpret its enabling statute with a view to protecting the public interest in the proper regulation of the professions. The interpretive principle of strict compliance with and construction of professional discipline legislation to ensure procedural fairness to accused members is not exclusive or overriding. A balancing of these interests is required.

The OCA supported a broader interpretative approach, namely, the balancing of the public interest and the fair hearing rights of the accused member: While the discipline process against a health professional must recognize the public interest involved, care must also be taken to accord that professional the full due process that the disciplinary legislation was intended to provide.

The OCA summarized the issue as follows:

The issue in the present case, therefore, is whether the College’s irregular treatment of G.V.’s complaint and allowing the withdrawal of the complaint constituted a breach of its duty of fairness to the respondent despite a properly commenced Registrar-initiated investigation, encompassing the complaint made by G.V.  If it did, then proceeding with the Registrar-initiated investigation would be an abuse of process and the College would have exceeded its jurisdiction, as found by the Divisional Court.  However, in our view, it did not.

The HPPC codifies well-established rules of natural justice and statutorily impose a duty of procedural fairness on the College, even at the investigatory stage of its processes. However, a failure to follow them does not automatically cause a loss of jurisdiction to process a complaint. Quoting the Discipline Committee with approval:

The Panel agrees that, on the surface, ‘abuse of process’ by the College may be a concern given the requirement to process the information in a timely manner. However, given the seriousness of the allegations against the Member and the potential for harm to the public, the irregular process used by the College, in this case, is not sufficient to warrant quashing the allegations against the Member.

In addition, the OCA found no prejudice to the member. The College’s failure to abide by its own procedural guidelines did not create any prejudice. The hallmark is prejudice and none existed.

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