Responding to Complaints at the College of Physicians and Surgeons of Ontario: What Physicians Need to Know
A formal complaint against a physician requires a response to the College of Physicians and Surgeons of Ontario (CPSO). The complaint process and the possibility of future consequences have the potential to create a difficult situation for any physician. A lack of familiarity can generate further pressure. Based on our experience, here is an introductory guide for physicians responding to complaints at the CPSO.
Typically, a physician will receive a letter from the CPSO enclosing the complaint and, when applicable, a summary of prior decisions involving the physician. Upon the conclusion of the initial investigation by the Investigations and Resolutions Department, a panel of the Inquiries, Complaints and Reports Committee (ICRC) will receive and review the physician’s file. Comprised of both physicians and public members, the ICRC will decide how to address the physician’s conduct, which may include ordering further investigation.
With some limited exceptions, section 25(1) of the Health Professions Procedural Code instructs the CPSO to investigate and act on all complaints. The law permits the ICRC to decline investigation of complaints it considers frivolous, vexatious, made in bad faith, or an abuse of process. In such cases, the ICRC must provide notice to the physician and complainant, along with 30 days to submit a response. Regardless of how the physician feels about the legitimacy of the complaint, they generally should prepare a response.
The ICRC generally does not hold complaint hearings and restricts its involvement to documentary review. As a result, the written response will likely be the physician’s only chance to make submissions to the ICRC. If the physician fails to fully address any detail in their initial response, they may not have an opportunity to provide additional commentary prior to the ICRC’s disposition. Since the physician typically cannot provide an oral explanation for their decision making or the care they provided, their initial response should comprehensively address all of the complainant’s concerns.
Crafting an effective response can be time consuming and exacting work, but is an essential part of the physician’s defence. The CPSO generally requires the physician to submit their response within 30 days of notification. Writing a quality response in this timeframe, while facing the possibility of professional and public consequences, can place a considerable strain on the physician.
Unique aspects of the physician’s case, including when the care was provided, the complexity of the care, and the possibility that a civil lawsuit may be initiated, warrant consideration when drafting a response. Organizing the response as a clear and factual chronology is, in our experience, a helpful strategy.
The finalized response should generally enclose the complainant’s medical records. This is permitted by section 43(1)(b) of the Personal Health Information Protection Act, 2004. An exception arises when the complainant is a third party. In such a case, the CPSO is responsible for obtaining the patient’s consent. Regardless of the circumstances, the physician should, as a general practice, keep their records in compliance with the Medicine Act, 1991 guidelines. Whether or not the ICRC determines that the care provided was appropriate, it may still evaluate the quality of the physician’s records.
The complainant will receive the physician’s finalized response from the CPSO investigator and will have the opportunity to make a written reply. CPSO staff may also arrange interviews with the physician and the complainant. Physicians have a duty to cooperate, and everything provided to the investigator will be submitted to the ICRC in the investigator’s report.
When the complaint is of a more serious nature, the physician may be subject to an interim order of the ICRC. Under an interim order, restrictions such as licence suspension are often available to address concerns of any ongoing harm that may arise from the physician’s practice. An interim order has the potential to last for the duration of the investigation.
Additionally, section 75 of the Health Professions Procedural Code enables the Registrar to appoint an investigator with greater powers for more serious complaints. This section 75 investigation is of a much broader scope than a standard complaint investigation.
After a standard complaint investigation and review are conducted, the ICRC may do any of the following: take no further action; caution the physician in person before the ICRC; inquire into the physician’s professional capacity; refer the matter to the Discipline Committee; or take any other appropriate action. Except in cases of referral to discipline or to another panel of the ICRC for health inquiries, the physician typically will receive written reasons for any decision.
Regulatory findings at the CPSO are becoming increasingly transparent, which means that a complaint now has the potential to expose the physician to both professional and public repercussions. Through the Public Register, details of the following ICRC dispositions are available to anyone viewing the physician’s online profile: Specified Continuing Education or Remediation Programs (SCERP); oral cautions; and referrals to discipline.
At the request of the physician or the complainant, decisions of the ICRC are open to review before the Health Professions Appeal and Review Board (HPARB). HPARB will consider if the CPSO’s investigation was adequate and whether the ICRC’s decision was reasonable. The HPARB panel will have access to all of the documents and information obtained by the CPSO during the complaint investigation stage, and this material typically will be disclosed to the physician and the complainant.
Although a potentially time consuming and stressful exercise, preparing a written response to the CPSO is an important step for any physician dealing with a complaint. A negative outcome at the CPSO can have professional and personal consequences, so physicians should handle all complaints with great care. Any physician in receipt of a formal CPSO complaint should contact the Canadian Medical Protective Association.