Following an investigation into the practices of the College of Physicians and Surgeons of Ontario (CPSO), the Ministry of Health and Long-Term Care has released the Honourable Justice Stephen Goudge's 2016 report making a number of recommendations on how the CPSO can streamline its complaint review process.

The Investigation

The Ministry had retained Justice Goudge to make recommendations as to:

• How the CPSO complaints process can be streamlined to permit decisions to be made more efficiently and cost-effectively; and
• Ways in which the number, length, and cost of hearings can be reduced while maintaining a fair process.

Justice Goudge had previously investigated healthcare in the province when he was appointed Commissioner of the Inquiry into Pediatric Forensic Pathology in Ontario, which reviewed pediatric forensic pathology in the province in the wake of the Dr. Charles Smith scandal. The Ministry requested the investigation because, among other things:

• The CPSO receives the highest number of complaints against physicians of any health care regulator in Canada (Ontario accounts for 40% of all physicians in Canada, but more than 50% of all discipline related matters nationwide, with more than 60% of total Canadian Medical Protective Association (CMPA) lawyer hours spent on discipline related matters nationally);
• Physicians have increasingly been seeking advice and representation from the CMPA in response to complaints against them (which drives up costs for the CMPA);
• The CMPA’s costs are primarily paid by the Ministry which reimburses physicians for their CMPA membership fees through an agreement with the Ontario Medical Association (OMA); and
• The Ministry is interested in streamlining certain aspects of the physician complaint review process while maintaining fairness,

The Findings

Justice Goudge found that, among other things:

• Public Complaints are the single most expensive and resource consuming aspect of the physician complaints process workload for both the CPSO and the CMPA;
• An average of 2412 new Public Complaints were filed annually between 2010 and 2014;
• Public Complaints must be disposed of within 150 days of filing (thought this time can be extended) but this 150-day deadline is not met on many occasions;
• Between 2011 and 2014, the median length of time from receipt of a Public Complaint to a decision on that Complaint was 200 days;
• Approximately 30% of the CPSO Public Complaints that the CMPA is involved in result in either No Action or Advice. These matters comprise approximately 40% of the legal hours expended by CMPA counsel on Public Complaints.

Overall, “too many complaints and investigations are in the system too long…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”.

The Recommendations

Justice Goudge’s report made several recommendations on improving efficiency and cost effectiveness of various elements, including at:

• The CPSO investigation stage;
• The ICRC (Inquiries, Complaints and Reports Committee) stage;
• The HPARB (Health Professions Appeal and Review Board) review stage; and
• The discipline hearing process.

Efficiency and Cost Effectiveness of the CPSO Investigation Stage

Justice Goudge recommended a number of things to streamline matters at the CPSO investigation stage.

Appointing a Complaints Director

There should be an individual acting as a “Complaints Director” and that person should be required to conduct an early review of Public Complaints. The Complaints Director should also have the power to:

• Approve the withdrawal of a Public Complaint by the complainant;
• Dismiss a Public Complaint outright where the Director is satisfied that there is no reasonable prospect other than a finding of No Action (in which case brief written decisions are to be provided to the complaints with the option to appeal the dismissal).

Appointing a Patient Advocate

A patient advocate position should be created in order to “send an important signal”. The advocate should be required to interact with a complainant immediately upon filing of a complaint in order to clarify the true substance of the complaint. As noted by Justice Goudge:

For a significant number of complainants, who are simply not aware of the limits on the scope of the jurisdiction of the CPSO, a proper explanation from someone who is sympathetic to the patients’ perspective may well satisfy them that their complaint can be withdrawn or does not fall within the jurisdiction of the ICRC, and that their remedy may lie elsewhere.

Creation of a New Alternative Dispute Resolution Process

A new ADR process should be created which includes the following elements:

• Can be initiated by the CPSO investigator at any stage of the investigation;
• Should be facilitated by an “appropriately skilled neutral who can bring resolution” (e.g. a member of the ICRC or an independent mediator, not a member of CPSO staff);
• The CPSO investigator should play an active role in the process;
• All communications in the new ADR process concerning a complaint should be inadmissible in any proceeding concerning that complaint, but any information relevant to a new or different complaint may be used by the CPSO in pursuing another complaint;
• The complainants agreement is not a pre-condition to resolution;
• In the event a resolution is reached, that resolution is subject to approval by the ICRC;
• When a proposed resolution is submitted to the ICRC, the Registrar must identify whether the resolution is in the public interest and, if so, the basis for such a conclusion;
• If the complainant does not agree to the proposed resolution, their position must be recorded and specifically addressed by the ICRC;
• Proposed resolutions should be presumed to be appropriate for approval by the ICRC in the absence of any identifiable reasons to believe that resolution is not in the public interest.

Registrar’s Investigations

Where a Registrar’s Investigation is commenced, the Registrar should:

• be precise about the acts that he/she concluded constituted misconduct; and
• the basis for that conclusion.

This is information that a physician is entitled to know and will “help to keep Registrar’s Investigations properly focused and less open to challenge” and will maintain fairness and efficiency.

Improving the Efficiency and Cost-Effectiveness of the ICRC Stage

Justice Goudge recommended that the ICRC should:

• Have the power to seek appropriate undertakings by physicians and should, in proper cases, make “conditional” referrals to discipline;
• Advise the physician that the case will be resolved without referral to discipline, but only on the condition that the physician successfully undertake a prescribed alternative.

Improving the Efficiency and Cost-Effectiveness of Review by HPARB

Justice Goudge’s HPARB related recommendations included:

• HPARB to make reviews from decisions of the ICRC in writing. This should be the rule not the exception;
• Timelines for filing of material and consideration of the file by an HPARB panel should be prescribed and made as short as reasonably possible;
• HPRAB to retain the power (in exceptional cases) to extend timelines where a case is inordinately large or complex and order an oral hearing where there is good reason to do so;
• Where HPARB applies the adequacy of investigation standard in the context of ICRC decisions arising from CPSO abbreviated investigations, the review should be dismissed where there are no compelling public policy investigations requiring further investigation;
• Where HPARB applies the adequacy of investigation standard in the context of ICRC decisions arising from other CPSO investigations, HPARB should assess the adequacy of an investigation, being mindful of factors such as the nature of the interests at stake, the seriousness of the alleged misconduct, the evidence offered by the complainant, and the public interest in having complaints resolved in way that is proportionate to the interests at stake.

Improving the Efficiency and Cost-Effectiveness of the Discipline Hearing Process

Justice Goudge recommended a number of things to streamline matters at the discipline hearing process.

Disclosure of Documents

The physician subject to the discipline hearing should be required to disclose all documents that they intend to rely on, any will-say statements from fact witnesses to be called, and any expert reports to be relied upon. This does not need to be concurrent with CPSO disclosure, but should happen at a “reasonable point in time after CPSO disclosure” and should happen before any pre-hearing conferences in the case.

Pre-Hearing Conferences

In order to make a pre-hearing conference (PHC) a more effective vehicle to resolve cases without the need for a hearing, the following steps should be taken:

• PHC chairs should be Discipline Committee members who have the skills and disposition most likely to achieve a resolution;
• The PHC chairs should receive extensive independent training in the full range of mediation techniques;
• For those cases where a physician PHC chair is not required, or where a non-physician PHC chair might be more effective, non-physicians with advanced dispute resolution skills should be appointed to the Discipline Committee to be available as PHC chairs.

Joint CPSO and CMPA Discussions Around Discipline

In addition, The CPSO and CMPA should resume and complete previous discussions around developing a protocol of agreed upon best practices for various discipline hearing related matters as quickly as possible. At Wise Health Law, we provide exceptional guidance on health law matters to public hospitals, long-term care homes, and other health-care providers across the province. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. We have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.

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