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Surprise health inspections require immediate legal advice: Sunshine

Keeping documents and records in order will help regulated health professionals should they face a surprise inspection or audit, says Toronto health lawyer Elyse Sunshine.

Sunshine, partner with Rosen Sunshine LLP, says practitioners should seek legal advice immediately in the event of an audit, inspection, or investigation by their regulatory body or if they've been served with a search warrant by police.

Prior to speaking with counsel, they should not volunteer any information, she cautions. 

There are numerous kinds of regulatory audits and inspections an individual or organization can encounter, including investigations based on a complaint to, or information provided to, the overseeing regulatory body, Sunshine tells

"Of those, investigations where advance notice has not been given by the regulatory before they attend at the professional’s office can be the most challenging," she says.

"Obviously, that's not a situation you can prepare for. In those cases, the primary reason the regulator elects to attend unannounced is because there's a concern that the member may have engaged in misconduct, but if notice is given, the member may interfere with the investigation including by tampering with potential evidence."

During an unannounced inspection, practitioners should try to ensure that investigators confine themselves to the area of concern or complaint, Sunshine says. Also, the investigated party should ask to see the initiating documents to determine why inspectors are there, and under what legal authority, she says.

"There are circumstances where you have to let them in, but you are entitled to get legal advice, even when someone shows up with a search warrant," Sunshine says. "You can ask them to wait a moment while you call a lawyer."

Counsel will be able to advise the practitioner while the investigation is going on, she says.

"While most legal initiating documents that permit a regulator to conduct an investigation allow for the seizure of all materials relevant to the investigation, it does not necessarily permit a full-scale investigation of the professional’s entire practice. For instance, it may not give investigators the right to demand immediate interviews with the practitioner or their staff," she says.

"Often, by the time a lawyer is called, staff have given statements, and surrendered documents not outlined in the initiating document," Sunshine says. "The other thing health professionals have to be careful about is that they protect their patients' privacy. For instance, the mere fact that the police make a request for information about a patient is not necessarily sufficient to permit a professional to breach that patient’s privacy. That is why it is important to get legal advice about the proper authority under which and circumstances where, an investigation overrides that confidentiality."

Likewise, the regulator’s authority to obtain records may not apply if the custodian of the records is not a health practice or place at which the practitioner being investigated practises their profession. In these circumstances, the provision of records may not be appropriate or even authorized, she says.

On another note, all regulatory bodies that oversee health professions have a mandate to conduct routine quality assurance type audits or inspections of their members, Sunshine says. Since these are most often pre-scheduled, health professionals can prepare for them

"If you're the type of professional or health-care organization that is subject to routine inspections, then you should conduct your own preventative audits," Sunshine says. "You should know the criteria the auditor or inspector will use, and you can make sure you're compliant.

"The key thing to understand is the nature of the audit or inspection, and what the inspectors need to accomplish, then prepare in advance for that," she says.

Scheduled compliance reviews often focus on policy and procedure manuals, whether they are up-to-date, and if they are being implemented, Sunshine says.

"The most important thing is not to leave this to the last minute. This is something you have to work on all the time," she says. "It's helpful to assign a person in your organization — and if you're the only person, it's going to be you — to ensure preventative audits are being done in a timely fashion.

 "It only becomes a big task if you haven't done it," Sunshine says.

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