Safeguards needed if cautions are published
The media and certain advocates have been calling for the publication of cautions issued to doctors and other health professionals for some time, and the minister of health has indicated that increased transparency in the regulation of health professionals is on his legislative agenda – so it would be surprising if cautions remain confidential for much longer, says Toronto health lawyer Lonny Rosen.
Rosen weighs in on the issue after Progressive Conservative MPP Steve Clark tabled a private member's bill at Queen’s Park that would require the College of Physicians and Surgeons of Ontario to post on its website cautions, which are issued to doctors for inappropriate behaviour or treatment mistakes, reports the Toronto Star.
The College currently only posts information about those complaints that are deemed serious enough to go to a disciplinary hearing, which can lead to findings of misconduct or incompetence, says the newspaper.
Rosen, partner at Rosen Sunshine LLP, says it is important to remember, however, that cautions are issued by Colleges’ inquiries, complaints and reports committees (ICRCs), which investigate complaints from patients, other professionals (including competitors) and members of the public about health professionals. These committees also investigate “inquiries” by the registrar of a College or other regulatory bodies, and receive reports from, for example, hospitals or health facilities or members of Colleges who have mandatory reporting obligations in certain cases (such as where a member’s hospital privileges or employment is terminated due to misconduct or where there are reasonable grounds to believe that a member is incompetent, incapacitated or has sexually abused a patient.)
He points to how most often these investigations are typically conducted based only on a review of documents such as patient records, letters of complaint and the professional's response.
“Some more extensive investigations involve interviews of complainants, the professional who is the subject of the investigation, or other individuals with knowledge of the matters being investigated, but these occur far less frequently than paper-based complaint investigations,” he says.
Rosen notes that ICRCs sit in panels of three members, at least one of whom is a public member (and not a health professional.) As well, the ICRC of a College never holds a hearing, and no information collected in the course of the College’s investigation is tested through cross-examination and indeed, professionals may not even receive disclosure of all of the information collected by the College in the course of its investigation, he says.
“This is because the ICRC is a screening committee, whose primary function is to determine whether to refer allegations of misconduct to the discipline committee of a College,” he says. “Where there is no basis for such action, the ICRC may take other action, such as issuing advice or a caution to the health professional.”
Rosen says if cautions are to be published in the future, two safeguards will be important, including: ensuring that no cautions issued prior to the enactment of new legislation will be published, since panels may have issued cautions with the understanding that it would not be published; and where a member requests that the Health Professions Appeal and Review Board review a decision by an ICRC to issue a caution, ensuring that no caution is published prior to the determination of such review.