What Physicians Need to Know about Reviewing CPSO Decisions at the Health Professions Appeal and Review Board (HPARB)
Following the investigation and consideration of a formal complaint at the College of Physicians and Surgeons of Ontario (CPSO), the Inquiries, Complaints and Reports Committee (ICRC) will provide the physician and the complainant with its decision. Except for situations in which the physician is referred to the Discipline Committee or the Fitness to Practice Committee, the ICRC will typically provide reasons for its decision. Although matters often end here, the physician and the complainant both have the right to request a review of the decision before the Health Professions Appeal and Review Board (HPARB). Based on our extensive experience representing physicians at HPARB proceedings, here is a short guide to reviewing CPSO decisions.
HPARB reviews decisions for all regulated health professionals, including physicians. HPARB is an independent adjudicative agency whose members are appointed by the Minister of Health and Long-Term Care. While panels of the ICRC must include both physicians and non-physicians, HPARB members do not specialize in medicine and are not allowed to have ever practiced medicine. They are often, though not necessarily, lawyers.
After receiving the ICRC’s decision, the physician or the complainant will typically have 30 days to make a written request for a review before HPARB. Interim orders of the ICRC cannot be reviewed, as HPARB proceedings are generally reserved for more final decisions. A physician who is referred by the ICRC to discipline or fitness to practice cannot request a review and must await the outcome of that hearing, at which point they can initiate a separate appeal process. Further, a request that HPARB deems frivolous, vexatious, made in bad faith, or otherwise an abuse of process will not be accepted for review, though the physician and the complainant must be given notice along with 30 days to make written submissions on the matter. Finally, if the physician or the complainant withdraws their request and the other party consents, an HPARB review will not proceed.
Once the review request is processed, HPARB will send a confirmation letter to the physician or complainant who made the request. This letter should provide instructions on next steps, including whether or not the physician or complainant will need to supply any additional information.
Rather than taking the form of a full hearing, an HPARB review of a physician’s matter will be limited in scope. Transcripts and recordings are not permitted, witnesses cannot be called, and, barring some exceptional circumstances, it is unlikely that any new evidence will be admissible. Section 33(1) of the Health Professions Procedural Code declares that an HPARB review is restricted to two grounds: (1) whether the CPSO’s investigation into a physician was adequate, and (2) whether the decision made by the ICRC was reasonable. HPARB will not reevaluate the quality of care provided by a physician.
All documents and information collected by the CPSO during the complaint investigation will be available for HPARB’s review. This will include any written correspondence and material submitted by the physician and the complainant, though HPARB may omit or redact information when it is of a personal nature, could jeopardize a person’s safety or security, or could undermine the integrity of the review process or complaint investigation. The physician and the complainant will then receive this vetted information in a lengthy document called the Record of Investigation, which will require careful review.
After the Record of Investigation is disclosed, HPARB may require the physician and the complainant to participate in a Case Conference. This is a teleconference meeting, facilitated by HPARB, held to provide the physician and the complainant with information about the HPARB process, mandate, and powers. During the teleconference, the Case Conference Facilitator may seek to clarify the 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 anything else related to the HPARB process. The Case Conference Facilitator may also explore potential settlement of any or all issues.
The physician and the complainant should receive a written notice confirming the date and time of the Case Conference. Following the teleconference, a written report will be issued to the physician and the complainant, but will not be provided to the HPARB panel hearing the review.
HPARB reviews of CPSO matters will typically take place at HPARB’s offices in Toronto, and will generally be open to the public. In some cases, the parties may make a request to hold the HPARB review elsewhere in the province. It is likely that a CPSO member, though not a party to the review, will also attend.
An HPARB panel is typically comprised of three members who are tasked with conducting the review and assessing the adequacy of the investigation and/or the reasonableness of the ICRC’s decision. The applicant party will have the first opportunity to comment on these two issues, after which the other party can respond. The HPARB panel may then have questions for the parties and the CPSO representative.
Following the review, the HPARB panel will issue a written decision with reasons to the physician and the complainant. The decision is a public document that will be available on the internet. The HPARB panel has the power to 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 into any aspect of the physician’s matter. The HPARB panel does not have the power to provide medical or legal advice, make any medical or professional determination, award money or damages, or investigate issues not raised in the initial complaint against the physician.
HPARB decisions cannot be appealed. The only option for a physician or complainant who is dissatisfied with an outcome is to apply for judicial review to the Divisional Court of the Superior Court of Justice.
Taking part in the HPARB review process can be stressful, time consuming, and challenging for any physician. As it has the potential to effect a physician’s career, the HPARB process merits a considered approach.