Responding to Complaints at the Ontario College of Pharmacists: What Pharmacists and Pharmacy Technicians Need to Know
When a formal complaint is made to the Ontario College of Pharmacists (OCP) against one of its members, the pharmacist or pharmacy technician in question should respond. Dealing with allegations of improper practices or professional misconduct can be a highly stressful experience. Based on our experience representing pharmacists and pharmacy technicians, here is an introductory guide to responding to complaints at the OCP.
From the pharmacist’s perspective, the complaint process begins once they receive the OCP’s letter enclosing the initial complaint. The letter includes some basic information on the process and notes that, upon the conclusion of the initial investigation, a panel of the OCP’s Inquiries, Complaints and Reports Committee (ICRC) will receive and review the complaint file. Comprised of both pharmacists and public members, the ICRC is tasked with objectively deciding how to address the pharmacist’s conduct, which may include ordering further investigation.
Once it determines that the investigation has produced enough information to adequately inform a decision, the ICRC panel may do any of the following: take no further action; caution the pharmacist in person before the ICRC; inquire into the pharmacist’s professional capacity; refer the matter to the Discipline Committee; or take any other appropriate action. The pharmacist typically receives written reasons for any decision other than referral to discipline or to another panel of the ICRC for health inquiries.
Regulatory findings at the OCP are moving towards increased transparency, and a complaint now has the potential to expose the pharmacist to both professional and public consequences. Details of the following ICRC dispositions are available on the pharmacist’s profile on the Public Register: Specified Continuing Education or Remediation Programs (SCERP); oral cautions; and referrals to discipline. Anyone who searches a pharmacist’s name online can view this information.
Subject to very limited exceptions, section 25(1) of the Health Professions Procedural Code orders the OCP to investigate and act on all complaints. Regardless of how the pharmacist feels about the complaint and its legitimacy, they should prepare a response. In some cases, the OCP will disclose confidential information to the pharmacist in order to facilitate the drafting of a response. The pharmacist can only share this information with their lawyer, should they choose to retain one. The OCP notes that breaching confidentiality has the potential to result in a finding of guilt under the Personal Health Information Protection Act, which may carry a hefty fine.
The pharmacist should craft a written response that addresses all of the complainant’s concerns, as there may not be an opportunity to provide additional commentary prior to the ICRC’s disposition. Because the ICRC operates the complaint process as a review of documents rather than as a hearing, the pharmacist typically cannot explain in person their decision-making process or the care that they provided. The written response will likely be the pharmacist’s only chance to make submissions.
Although developing an effective response letter takes time and effort, it is essential to a pharmacist’s defence. The OCP generally expects the pharmacist to deliver their response within 30 days of notification of the complaint. The allegations, the pressure to craft a comprehensive response, and the threat of professional consequences and public exposure can place a great strain on the pharmacist. Through this potentially stressful experience, it is prudent to consider contacting legal counsel. Retaining a lawyer who practices in the area of professional regulation can assist the pharmacist with navigating the complaint process. The lawyer typically becomes the primary point of contact with the OCP, submitting the pharmacist’s response and dealing with any subsequent issues.
When writing the response, the pharmacist should consider any unique aspects of their case, including when the care was provided, the complexity of the care, and the possibility that a civil lawsuit may be initiated in relation to the care. In our experience, it is generally helpful to organize the response as a clear and factual chronology of any events that are relevant to the allegations.
There are instances in which a complaint may have some merit. In the right circumstances, it may be appropriate and proactive to use the written response to acknowledge a potential shortcoming and explain how it was corrected. Such a display of self-awareness could have a positive effect, demonstrating that the pharmacist has gained insight and taken responsibility for their actions. The ICRC may then gain confidence in the pharmacist’s ability and desire to improve their practice.
The pharmacist or, if applicable, their legal representative submits the finalized response to the investigator, and should enclose any additional pharmacy records requested by the OCP. The OCP requires the pharmacist to refrain from destroying or removing any pharmacy documents for the duration of the matter. Further, as a general practice, pharmacists should keep their records in compliance with the Pharmacy Act, 1991 guidelines. Regardless of whether the ICRC determines that the pharmacist’s conduct was appropriate or not, it may still evaluate the quality of their records.
The investigator provides the complainant with a copy of the pharmacist’s response. The complainant then has the opportunity to make a written reply. Alongside this exchange of documents, the investigator may opt to have a verbal conversation with both the complainant and the pharmacist. Pharmacists have a duty to cooperate with the investigator. Everything provided to the investigator is submitted to the ICRC in the investigator’s report.
Complaints that involve little or no risk of harm to patients or the public may be referred to the OCP’s Alternative Dispute Resolution (ADR) process. Referral of a pharmacist’s matter to ADR generally occurs early in the complaint investigation process. ADR only moves forward on the consent of both the pharmacist and the complainant. Unless abandoned by the complainant or discontinued by the OCP, the process likely culminates in a resolution-oriented discussion between the parties, which is mediated by an OCP-appointed facilitator. Even if a settlement is reached by the pharmacist and complainant at ADR, it is not final until ratified by the ICRC. Matters involving serious allegations of professional misconduct, such as sexual abuse, dishonesty, or fraud, are not eligible for ADR.
In contrast to ADR, the ICRC may impose an interim order to address more serious complaints. Under an interim order, the pharmacist may be subject to a number of restrictions for the duration of the investigation, including licence suspension. The Registrar also has the power, under section 75 of the Health Professions Procedural Code, to appoint an investigator to investigate serious complaints. A section 75 investigation is much broader than a standard complaint investigation.
The pharmacist and the complainant have the opportunity to request reviews of ICRC decisions. Reviews take place before the Health Professions Appeal and Review Board (HPARB), which considers if the OCP’s investigation was adequate and whether the decision made by the ICRC was reasonable. The HPARB panel will have access to all documents and information gathered by the OCP at the complaint investigation stage, and these will also be disclosed to the pharmacist and the complainant.
Pharmacists and pharmacy technicians should take complaints seriously, as negative dispositions from the ICRC can carry professional and personal consequences. Preparing a high-quality written response to the Ontario College of Pharmacists, while potentially time consuming and stressful, is an important step towards dealing with a complaint. Retaining specialized legal counsel can assist pharmacists and pharmacy technicians in crafting their responses and working through the complaint process as a whole. Complaints can have a real effect on a pharmacist, and deserve a thoughtful approach.
Josh Koziebrocki, is the principal lawyer and founder of Koziebrocki Law. He represents numerous pharmacists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445.
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