Reviewing Decisions of the College of Midwives of Ontario at the Health Professions Appeal and Review Board
The Inquiries, Complaints, and Reports Committee (“ICRC”) of the College of Midwives of Ontario is responsible for addressing formal complaints against midwives. After the ICRC disposes of a matter, midwives and complainants will have the opportunity to request a review before the Health Professions Appeal and Review Board (“HPARB”). Based on our experience at HPARB proceedings, here is a brief overview of the review process.
The HPARB is an independent adjudicative agency that is responsible for reviewing final decisions of all regulated health colleges, including the College of Midwives of Ontario. In contrast to a panel of the ICRC, which must include midwives, a panel of the HPARB cannot include midwives. HPARB members are often, though not necessarily, lawyers.
Midwives and complainants will typically have 30 days to request a review of the ICRC’s decision before the HPARB. The HPARB will then provide midwives and complainants with notice that a review has been requested, instructions on next steps, and the Record of Investigation. The Record of Investigation is a lengthy package that contains all the material obtained during the complaint investigation stage. This package will form the basis of the HPARB review.
It is prudent for midwives to carefully review the Record of Investigation, and they may consider contacting a lawyer who is familiar with the HPARB to assist them with their review. Once retained, legal counsel will help navigate the process, and will typically serve as the primary point of contact with the HPARB.
After disclosing the Record of Investigation, the HPARB will organize and facilitate a Case Conference. A Case Conference is a teleconference meeting during which the HPARB will provide midwives and complainants with information about the HPARB process, mandate, and powers, as well as the date and time of the review. The Case Conference will also provide the parties with an opportunity to clarify or settle any issues before the HPARB review. A lawyer will typically appear on behalf of a midwife at a Case Conference.
Reviews will typically take place at the HPARB offices in Toronto, though they may proceed elsewhere in Ontario if requested. Midwives and complainants are entitled to legal representation at HPARB reviews, which are generally open to the public. While not a party to the process, the College of Midwives of Ontario will likely have a representative attend the review to answer questions from the HPARB panel.
During the proceeding, the HPARB panel, which is typically comprised of three members, will conduct a limited scope review of a midwife’s matter. Witnesses will not be called, and transcripts and recordings will not be permitted. Under section 33(1) of the Health Professions Procedural Code, the HPARB panel must only review two grounds: (1) whether the investigation was adequate, and (2) whether the decision made by the ICRC was reasonable. The HPARB will not assess technical aspects of a midwife’s care.
Midwives and complainants will take turns providing their submissions on adequacy and reasonableness, and may subsequently comment on issues that arise during the review. However, they cannot question each other. The HPARB panel will likely have questions for the parties or their representatives, and for the member appearing on behalf of the College of Midwives of Ontario.
The HPARB panel will consider the midwife and complainant’s submissions, and, on a later date, will issue a written decision with reasons. The HPARB may do any of the following:
- Confirm the ICRC’s decision;
- Refer the matter back to the ICRC;
- Make recommendations to the ICRC; or
- Require the ICRC to undertake any action of which it is legally capable, other than requesting the Registrar to conduct an investigation.
The HPARB panel cannot do the following:
- Provide midwives with legal advice;
- Make any professional determination;
- Award money or damages; or
- Investigate issues that were not raised in the initial complaint.
Each decision made by the HPARB panel is a public document that will be posted on the internet. Rather than appealing an HPARB decision, midwives or complainants who are dissatisfied with the outcome of a review are able to apply for judicial review to the Divisional Court of the Superior Court of Justice.
Participating in an HPARB review can be time consuming and challenging for any midwife. Retaining legal counsel can assist with the process. As an HPARB review has the potential to result in professional consequences, midwives should proceed accordingly.CONNECT WITH US