What Pharmacists Need to Know about Reviewing OCP Decisions at the Health Professions Appeal and Review Board (HPARB)
When formal complaints are made against pharmacists or pharmacy technicians at the Ontario College of Pharmacists (OCP), the Inquiries, Complaints and Reports Committee (ICRC) is responsible for making a decision on the matter. While the process may end with the ICRC’s disposition, pharmacists and complainants are both entitled to request a review before the Health Professions Appeal and Review Board (HPARB). Based on our experience representing pharmacists at HPARB proceedings, here is a brief guide to the review process.
HPARB is an independent adjudicative agency that is responsible for reviewing the decisions of all regulated health colleges, including the OCP. The Minister of Health and Long-Term Care appoints HPARB members. While panels of the ICRC must include pharmacists and non-pharmacists, HPARB members are not allowed to have ever been pharmacists or members of the OCP. HPARB members are often, though not necessarily, lawyers.
After receiving an ICRC decision and reasons, pharmacists and complainants will typically have 30 days to make a written request for a review. HPARB will review final dispositions, and will not address interim orders, referrals for discipline, or referrals for health inquiries. HPARB may not proceed with requests it deems frivolous, vexatious, made in bad faith, or otherwise an abuse of process. A review before HPARB will not proceed if a pharmacist or complainant withdraws their request and the other party consents to the withdrawal.
HPARB will notify pharmacists and complainants upon commencing the review process, and will provide instructions on next steps. The review may require pharmacists or complainants to supply additional information to HPARB.
As part of its review, HPARB will receive all the material gathered by the OCP at the complaint investigation stage. This information will also be provided to pharmacists and complainants, though their copies may arrive with some information redacted. This lengthy package of disclosure is called the Record of Investigation. It is prudent for pharmacists to carefully review the Record of Investigation. Pharmacists may consider contacting a lawyer who is familiar with HPARB to assist them with their review. Once retained, legal counsel will help navigate the process and will typically become the primary point of contact with HPARB.
After the Record of Investigation has been disclosed to pharmacists and complainants, HPARB may facilitate a Case Conference. Pharmacists and complainants will receive a written notice confirming the date and time of the Case Conference, which is a teleconference meeting informing the parties about the HPARB process, mandate, and powers, as well as the date and time of the review. The Case Conference will also provide pharmacists and complainants with an opportunity to clarify or settle any issues before the HPARB review. A lawyer will typically appear on behalf of a pharmacist at the Case Conference.
Reviews will typically take place at the HPARB offices in Toronto, though they may potentially proceed elsewhere in the province if requested by pharmacists and complainants. Pharmacists 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 OCP will likely have a representative attend the review to answer questions from the HPARB panel.
An HPARB panel, typically comprised of three members, will conduct a limited scope review of a pharmacist’s matter. Generally, witnesses will not be called, transcripts and recordings will not be permitted, and it is unlikely that new evidence will be admitted. Section 33(1) of the Health Professions Procedural Code states that HPARB must only review two grounds: (1) whether the OCP’s investigation was adequate, and (2) whether the decision made by the ICRC was reasonable. HPARB will not assess technical aspects of a pharmacist’s care.
Generally, the applicant party will provide their submissions on adequacy and reasonableness first, and will be followed by the respondent’s submissions. Pharmacists and complainants may then comment on issues that arise during the course of the review, but cannot question each other. The HPARB panel will likely have questions for pharmacists and complainants, or their representatives, and for the member appearing on behalf of the OCP.
Once the HPARB panel has considered the parties’ submissions, it will issue a written decision with reasons to pharmacists and complainants. Each decision made by the HPARB panel is a public document that will be posted on the internet.
The HPARB panel 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 pharmacists with legal advice;
- Make any professional determination;
- Award money or damages; or
- Investigate issues that were not raised in the initial complaint.
Rather than appealing an HPARB decision, pharmacists 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.
Taking part in an HPARB review can be a time consuming and challenging experience for any pharmacist. Retaining legal counsel can assist pharmacists through the HPARB process. As an HPARB review has the potential to impact a career, pharmacists and pharmacy technicians should remain diligent and proceed accordingly.