Responding to Section 75 Investigations at the CNO
We often assist nurses with a variety of matters at the College of Nurses of Ontario (“CNO”). This includes responding to formal investigations under subsections 75(1)(a), (b), and (c) of the Health Professions Procedural Code (“HPPC”).
Under section 75, the CNO can initiate an investigation into a nurse’s practice to determine if the nurse has committed acts of professional misconduct or is incompetent. These investigations grant the CNO significant powers to seek and obtain a wide range of information, and have the potential to result in serious professional consequences for nurses.
Appointments of investigators
Section 75 investigations can be initiated in three ways:
- Section 75(1)(a) – the Registrar of the CNO may appoint one or more investigators if the Registrar:
- believes that a nurse has committed an act of professional misconduct or is incompetent;
- has reasonable and probable grounds for that belief; and
- obtains the approval of the Investigations, Complaints, and Reports Committee (“ICRC”) for the appointment;
- Section 75(1)(b) – the ICRC may, after receiving information about a nurse from the Quality Assurance Committee, request that the Registrar conduct an investigation; or
- Section 75(1)(c) – the ICRC may, after receiving a written complaint about a nurse, request that the Registrar conduct an investigation.
When facing a section 75 investigation, nurses may also be subject to interim orders. Interim orders place terms, conditions, or limitations on a nurse’s certificate of registration during the course of an investigation. As part of an interim order, the CNO may suspend a nurse’s certificate of registration for the duration of the investigation.
Scope of the Investigation and Investigative Powers
The scope of a section 75 investigation can be expansive. Investigators may inquire into any information that is relevant to the matter under investigation. Under the HPPC, some of the investigative powers in a section 75 investigation include:
- searching a nurse’s place of practice at any reasonable time;
- inspecting records from the office of the nurse under investigation;
- inspecting records of other involved practitioners and institutions;
- interviewing witnesses, including a nurse’s employer, employees, and colleagues;
- interviewing the complainant, if applicable;
- interviewing the nurse under investigation;
- placing a practice under surveillance or using undercover patients;
- obtaining a search warrant; and
- obtaining expert opinions.
Duty to Cooperate
Nurses are generally required to cooperate with the CNO under any circumstances. Under the regulations of the Nursing Act, failing to cooperate is considered disgraceful, dishonourable, or unprofessional conduct. Such conduct constitutes an independent act of professional misconduct.
Obstructing an investigation is even more serious than failing to cooperate. Acts of obstruction might include hiding a chart, refusing the entry of investigators to a practice site, or lying to investigators. Obstruction can also amount to an act of professional misconduct.
Investigators have the power to issue summonses to any witnesses, including nurses and third parties. A summons legally compels a witness to provide a statement and/or documents. Failing to comply with a summons may result in a contempt of court order, among other consequences.
Registrar’s Report and Nurse’s Response
After a section 75 investigation is complete, the investigator will provide the results to the Registrar, who must then provide a report to the ICRC. Generally, the CNO will then provide nurses with the report of the investigation, as well as the opportunity to make written submissions within 30 days. The ICRC generally does not hold oral hearings. It is prudent for nurses to review the report with legal counsel and determine what, if any, submissions they should make in response to the Registrar’s Report.
Possible Outcomes of a Section 75 Investigation
Following its receipt of the Registrar’s Report, the ICRC may make the following dispositions:
- refer the allegations to a discipline hearing;
- refer the matter for an incapacity inquiry;
- require nurses to appear before a panel of the ICRC to be cautioned;
- require nurses to complete a specified continuing education or remediation program (“SCERP”);
- take other action, including ordering further investigation; or
- take no further action.
The ICRC will provide nurses with a copy of its decision. In cases in which the ICRC decides to caution a nurse or requires their completion of a SCERP, the CNO will publish a summary to the public register. Referrals to the Discipline Committee are also made public.
Appealing Section 75 investigation decisions
There is no statutory right to appeal or review decisions of the ICRC that arise from the appointment of an investigator under section 75. However, a judicial review application may be available in certain circumstances. Nurses considering a judicial review application of a section 75 decision should consult legal counsel.
Josh Koziebrocki, LLB, BA (Hons), is the principal lawyer and founder of Koziebrocki Law. He represents numerous nurses and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445.
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