Reviewing RCDSO Decisions at the Health Professions Appeal and Review Board (HPARB)

Reviewing RCDSO Decisions at the Health Professions Appeal and Review Board (HPARB)

very formal complaint against a dentist at the Royal College of Dental Surgeons of Ontario (RCDSO) eventually reaches a decision by the Inquiries, Complaints and Reports Committee (ICRC). When the ICRC concludes its consideration of a matter, it sends the decision to both the dentist and the complainant. Unless the dentist is referred to the Discipline Committee or the Fitness to Practice Committee, both parties likely also receive reasons for the decision. While the process may end here, the dentist and the complainant are both entitled to request a review of the decision. This review occurs before the Health Professions Appeal and Review Board (HPARB). Based on our extensive experience representing dentists at HPARB proceedings, here is a brief guide to the review process.

HPARB is the independent adjudicative agency that reviews decisions for all regulated health professionals, including dentists. HPARB members are appointed by the Minister of Health and Long-Term Care. While panels of the ICRC must include both dentists and non-dentists, HPARB members do not specialize in dentistry and are not allowed to have ever practised dentistry. HPARB members are often, though not necessarily, lawyers.

Upon receiving the ICRC’s decision, the dentist or the complainant typically has 30 days to make a written request for a review before HPARB. There are no reviews of interim orders of the ICRC, as HPARB is generally reserved for more final decisions. Further, if the ICRC refers the dentist to discipline or for fitness to practice, the dentist cannot request a review and must await the outcome of that hearing, at which

point a separate appeal process may be initiated. HPARB may not proceed with requests that it deems frivolous, vexatious, made in bad faith, or otherwise an abuse of the process, though it must provide notice to both the dentist and the complainant, as well as 30 days to make written submissions on the matter. Finally, a review before HPARB will not proceed if the dentist or complainant withdraws their request and the other party consents to the withdrawal.

The dentist or complainant who requests the review receives a confirmation letter once the request is processed by HPARB. This letter may ask for further information, and will provide instructions on next steps. The RCDSO itself is not a party to the review, though it is likely that one of its representatives will attend the review to answer questions from the HPARB panel.

“Upon receiving the ICRC’s decision, the dentist or the complainant typi-cally has 30 days to make a written request for a review before HPARB.”

HPARB provides a limited-scope review of the den-tist’s matter, rather than a full hearing. Witnesses cannot be called, transcripts and recordings are not permitted and, short of very specific circumstances, it is unlikely that new evidence will be admitted. Under section 33(1) of the Health Professions Procedural Code, HPARB must confine its review to two grounds: (1) whether the RCDSO’s investigation into the dentist was adequate, and (2) whether the decision made by the ICRC was reasonable. HPARB does not reassess technical aspects of the care provided by a dentist.

As part of its review, HPARB will have access to all documents and information gathered by the RCDSO at the complaint investigation stage, including copies of all written correspondence and material HPARB has received from both the dentist and the complainant. HPARB may redact or omit some information if it is of a personal nature, could jeopardize the security or safety of any person, or could undermine the integrity of the complaints investigation or review process. This vetted information will then be disclosed to the dentist and the complainant in a lengthy document called the Record of Investigation. Careful review of the Record of Investigation is required, as the investigation may have yielded evidence that was not initially disclosed to the dentist, or may be missing evidence that could have a real impact on the outcome of the matter. It is prudent for the dentist to retain legal counsel who is experienced with HPARB and knows how to efficiently focus their efforts. Additionally, once retained, a lawyer typically becomes the primary point of contact in the review process, which can spare the dentist considerable stress.

Following disclosure of the Record of Investigation, the dentist and the complainant may be required to participate in a Case Conference. This is a teleconference meeting that is facilitated by HPARB. The purpose of this teleconference is to provide the dentist and the complainant with information about the HPARB process, mandate and powers. During this conference, the dentist and the complainant may be asked to consider clarification of the issues, potential settlement of any or all issues, the Record of Investigation itself, any facts that may be agreed upon, the date the matter will proceed, the anticipated length of the matter, and any other matters related to the HPARB process. Typically, a lawyer will appear on behalf of a dentist at the Case Conference. The dentist and the complainant will be sent a written notice confirming the date and time of the Case Conference. A written report will be issued to the parties following the teleconference, but will not be provided to the panel hearing the review. HPARB reviews typically take place at HPARB’s offices in Toronto and are generally open to the

public. At times they can occur across the province, if requested by the parties. Both the dentist and the complainant are entitled to legal representation. An HPARB panel, typically comprised of three members, conducts the review and assesses the adequacy of the investigation and/or the reasonableness of the ICRC’s decision. The applicant party has the first opportunity to comment on these two issues, after which the other party can respond. The parties may comment on issues that arise during the course of the review, but cannot question each other. The HPARB panel may then have questions for both the dentist and the complainant, or their representatives, and for the member appearing on behalf of the RCDSO.

After the review, the HPARB panel issues a written decision with reasons to the dentist and the complainant. The decisions are public documents that are available on the Internet. The HPARB panel may 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, except requesting the registrar to conduct an investigation. The HPARB panel may not provide medical or legal advice, make any medi-cal or professional determination, award money or damages, or investigate issues not raised in the initial complaint.

There is no mechanism in place to appeal HPARB decisions, so the only recourse for a dentist or complainant who is dissatisfied with an outcome is to apply for judicial review to the Divisional Court of the Superior Court of Justice.

Participating in an HPARB review can be a stressful experience for any dentist. The process can be time-consuming and challenging, as HPARB often has deference to RCDSO decisions. A dentist whose matter is under review should exercise caution, as HPARB may result in referral back to the ICRC for a more consequential disposition. Retaining specialized legal counsel can assist dentists in navigating the HPARB process and can contribute to a more effective review. An HPARB review can potentially affect a dentist’s career, and requires an appropriate response.

Josh Koziebrocki, LLB, BA (Hons), is the principal lawyer and founder of Koziebrocki Law. He represents numerous dentists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445.

 

josh@koziebrockilaw.com | www.koziebrockilaw.com

Reprinted with permission of the Ontario Dental Association and Ontario Dentist, 2018