Accounting for Law

Don't make all complaints public: Sunshine

Toronto health lawyer Elyse Sunshine strongly disagrees with an Ontario Trial Lawyers Association suggestion to make public all complaints against doctors  after the province’s medical watchdog has dealt with them.

But, says Sunshine, a partner with Rosen Sunshine LLP, if the government and regulatory colleges move to increase transparency – as seems likely – it must be done in a manner that recognizes the process by which complaints are investigated and decided, as well as the value and impact of disclosure of such decisions.

She was reacting to a Toronto Star story outlining the OTLA plan. The report notes that only those complaints that are referred to the College of Physicians and Surgeons of Ontario’s discipline committee are currently made public online, and those are typically the worst cases, representing only two per cent of the 2,294 cases probed last year.

Sunshine tells that she’s not in favour of the plan to make public all complaints for a number of reasons, the first of which is to understand that anyone can make a complaint but there are no repercussions for making a false claim.

“Unlike other types of processes where someone can say something that is either untruthful or egregious and there is a remedy, here the doctor has no recourse against someone who files a complaint that could be false, misleading or defamatory ” she explains. “And there have been many cases where ex-spouses, disgruntled former employees, competitors or even advocates for a particular cause have filed complaints.

“So to make everything public gives the public a skewed perspective of doctors.”

The plan would see the college releasing the rest of the list, including those doctors who received cautions, adds the Star story.

But Sunshine warns the problem with that is “these are not hearings. They are done by way of written letters so the screening committee has no opportunity to assess credibility or to hear any witnesses.”

She notes that the committee determines whether there is any evidence on which a referral for a discipline proceeding could be made.

“If they have not made that referral it means that either the subject matter or the evidentiary basis for a hearing has not been established. Again it’s not like having a trial,” says Sunshine.

She says the cautions are “very serious to doctors and their purpose could be viewed as threefold: firstly a warning, secondly they provide advice and guidance to the doctor and thirdly it is quasi-punitive in the sense that it stays on the record with their regulatory body and can be relevant in determinations if the doctor were to have any further complaints or investigations. But currently, a caution is not public and I think if they start publishing them the doctors will certainly view the caution as more punitive and will have no choice but to challenge those findings which will clog up an already overburdened  legal system.”

Sunshine says the current system works.

“There has certainly been a movement toward increased transparency, but I think the public has to trust in our self-regulated system – it does the job. There is a perception that they (committee members) are 'in on it' with the doctors and that is not the case at all.

“You can rest assured that every complaint that is put forward to a complaints committee is fully investigated and this includes the committee having to consider all prior decisions and complaints that a professional may have,” says Sunshine. “So if you do have a doctor who has a prior history, the committee will consider that factor and, it may result in them taking different action than they otherwise would have if this were someone who was before them for the first time. ”

Sunshine tells something else to appreciate is that many colleges will also order cautioned doctors to take certain relevant educational courses or to work with mentors.

“That’s not just a slap on the wrist. These matters are taken very seriously by both complaints committees and members of the professional alike.  However, given that there is no hearing and the ability for the professional to truly 'defend' these complaints and the ability to challenge these decisions is limited by the existing legislative scheme, publishing these findings may be unfair. Instead of rushing to change a well-run system, let’s consider instead the value of a health professional receiving advice or educational feedback from a committee of his or her peers.”

A group of regulators is looking at this very issue and talking about whether there should be increased transparency, Sunshine notes, and it appears that there’s pressure on the regulatory colleges to do something, she says.

“I personally don’t think the pressure is fair and it seems to me to arise from a lack of confidence in the regulators that is not warranted and a lack of understanding about how these bodies work and how they function.”

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