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Ignore complaints to college at your own peril: Sunshine

Health professionals need to pay close attention to complaints lodged against them with their college because the consequences can be dire, says Toronto health lawyer Elyse Sunshine.

“Because the ramifications can be so significant, it’s never something you can take lightly,” says Sunshine, partner with Rosen Sunshine LLP. “We've seen health professionals get themselves in hot water because they don't take complaints as seriously as they should.”

Physicians, dentists, pharmacists and other self-regulated health professionals typically receive notice of a complaint via a phone call or a registered letter from their college.

The letter will include a copy of the complaint, extracts of the relevant legislation, and sometimes, a request for a copy of the patient’s chart, Sunshine says. The letter will demand the professional’s response, and occasionally include a summary of the issues that need addressing.

“The first thing to do is take time to reflect, and not react right away,” she tells AdvocateDaily.com. “It’s very upsetting and concerning to get a complaint letter, but you don’t get a prize for getting your response in early.”

It takes time to compose a thoughtful reply that speaks to all the issues, Sunshine says. “And you want to make sure you're not reacting from emotion.”

Consider notifying your insurer of the complaint to see what legal coverage it offers, she says.

Some professionals believe, somewhat unwisely, that they don’t need a lawyer, Sunshine says.

“It’s like your own health care,” she adds. “Sometimes you can treat yourself and things will go well. But, the risk of failing to address something, or compounding the harm, is significant. If you have access to a professional person who can help you through that, why not take advantage of it? You're more likely to get a better outcome.”

Once you retain a lawyer and calm down, review the patient’s chart, but don’t alter it in any way, because it’s now the subject of an investigation, Sunshine says.

“Make a summary for your lawyer of everything you remember in connection with the situation that's relevant to the complaint.

“You don’t have to make it pretty. Point form is fine. And you want to keep emotion out of it. Be as clinical as possible when you're telling this story.”

A good summary makes for a productive first meeting with your lawyer, she says.

Your counsel may recommend retaining an expert to help with your response, even at this initial stage, depending on the nature of the complaint, Sunshine says.

You will need to gather further relevant information, including billing records and the names of individuals, including your staff members, who may be able to assist with the response, she says.

You can tell your staff that a complaint has been filed, but don’t discuss it with anyone but your lawyer, Sunshine recommends.

“Anything you say to anyone, potentially, could be used against you in the future.”

And never contact the complainant.

“That in and of itself could be an offence. It could be viewed as trying to dissuade them from continuing with the complaint,” Sunshine says.

On rare occasions, the complainant will continue to see you as a patient. You can’t refuse to see them just because of the complaint. But, a transfer of care may be appropriate, Sunshine says.

In such cases, until the patient’s care is appropriately and professionally transferred, it’s advisable to obtain their consent to have a third party present during any interactions, she says.

Once you and your lawyer send the college your response, it will be shown to the complainant, who can respond. Then the college’s investigative body — the Inquiries, Complaints and Reports Committee (ICRC) — may seek additional information, including third-party records, witness statements, or an expert review, and they may even ask you for an interview, Sunshine says.

Most regulators use a risk-assessment tool that invites the affected professional to comment on their prior history or anything else that seems relevant. You could use this tool to determine the strength of the case against you, she says.

“That gives you an opportunity to assess whether you do have some exposure and whether you should be offering up some other alternative or resolution, instead of simply denying the concerns/allegations and leaving the outcome to what the committee thinks is best,” Sunshine says.

You could, for instance, offer to take an educational course to address any shortcomings.

In the closing stages, the college will show you a record of the investigation, including any further comments by the complainant, Sunshine says.

Among the possible outcomes, she says the ICRC can:

  • take no action — your best result
  • offer advice, which is significant but not a matter of public record
  • require you to take a Specified Continuing Education and Remediation Program (SCERP). This goes on the public register 
  • issue a caution, which also goes on the public register 
  • charge you with professional misconduct and refer the matter to the college’s discipline committee for a public hearing that could, if the allegations are serious enough, result in the revocation of your licence

You or the complainant can ask an independent tribunal — called the Health Professions Appeal and Review Board — to review any ICRC decision except for a referral to the discipline committee, Sunshine explains. If the board decides the investigation was inadequate or the decision unreasonable, it could send it back for a redo.

Some people find the process, which can go on for months, emotionally difficult and they may benefit from seeing a therapist or other health professional, she says.

“Most health professionals went into the profession to help people. Getting a complaint can really be challenging to one's own sense of self as a professional. It’s stressful, and the stakes are high. It can be a really tough process to go through,” Sunshine says.

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