Changes To RCDS By-Laws Addressing Transparency Issues
By Wilton Martin
The RCDS has recently announced that it will be amending its By-Laws, effective October 1, 2015, to expand the information available to the public on the RCDS’s Public Register. The By-Law amendment follows a request from the Ontario Ministry of Health and Long Term Care for greater transparency at all the health Colleges governed by the Ontario Regulated Health Professions Act (”the RHPA”). The RCDS had already taken steps to change its processes to foster transparency, as part of its commitment to transparency. The By-Law amendment will have a significant impact on the disposition of various categories of patient complaints. The By-Law amendment will require the RCDS to place information concerning complaints against dentists on the Public Register, which the RCDS was previously not obliged to disclose to the public. The Public Register is a repository of information with respect to Ontario dentists, which the RCDS is required to maintain, pursuant to the RHPA.
It is important to keep in mind that patient complaints take a considerable period of time to work their way through the Inquiries, Complaints and Reports Committee (hereinafter “ICRC”) investigation and decision process. From the date a complaint is made, to the date that the ICRC decision is made, can take between 8 to 12 months, or longer. If you are the subject of a patient complaint as of April, 2015, there is a reasonable likelihood that the complaint decision will not be rendered until after October 1, 2015, the date of the By-Law amendment. Even complaints from 2014 may result in an ICRC decision after October 1, 2015. Therefore, if you currently have a patient complaint that is working its way through the RCDS investigation process, you must consider whether the eventual ICRC decision is likely to be rendered after October 1, 2015.
In this age of social media, the information disclosed on the RCDS Public Register may be readily accessible through a Google search, or a cursory visit to the RCDS website. It is important that dentists be aware of the negative consequences of an adverse outcome at the complaints level.
Complaints dispositions prior to Amendment
Until this By-Law amendment, there were essentially three types of resolutions of complaints. The first and best resolution for dentists was that a complaint from a patient would be dismissed by the ICRC, without any criticism of the dentist. This type of complaint disposition did not result in any information being placed on the RCDS Public Register. The dismissal of a complaint, without any action being taken, would ensure that the complaint was kept confidential, and that information concerning the complaint would not be readily accessible to patients searching for information about the dentist.
Prior to the By-Law amendment, the second most common disposition of complaints arose where the ICRC had concerns about the dentist’s clinical skills. These concerns would routinely be addressed by the ICRC proposing a voluntary undertaking to the dentist, to take a course or courses to address the clinical deficiencies identified by the complaint. The RCDS would also impose practice monitoring for 24 months. The majority of ICRC complaint decisions identifying clinical dentistry deficiencies would be resolved through this type of voluntary undertaking. The signing of a voluntary undertaking to take courses and to have practice monitoring did not require such a disposition to be disclosed on the Public Register. Effectively, the resolution of a complaint by the dentist signing a voluntary undertaking ensured that the subject matter of the complaint would be kept confidential.
The third and most serious disposition of a patient complaint by the ICRC, was to refer a matter to the Discipline Committee. Previously, where a complaint had been referred to the Discipline Committee, the RCDS was obliged to disclose a brief summary of each specified allegation, and the anticipated date of the hearing, on the Public Register.
Impact of proposed By-Law amendment
Now, under the proposed By-Law amendment, the RCDS is obliged to disclose a brief summary of each specified allegation, the date of the referral, the status of the discipline hearing, and the Notice of Hearing, which contains a summary of the allegations against the dentist.
The By-Law amendment provides that, where a decision of the ICRC requires that the dentist attend before the ICRC to be cautioned, the following must be posted on the Public Register:
a) A notation of the fact that a caution was issued, including a summary of the caution; and
b) The date of the Panel’s decision.
This change in procedure is significant because of social media issues. If a dentist receives an oral caution as a result of an ICRC decision, that oral caution will now be posted on the Public Register, and may be available to any individual who Googles the dentist’s name.
The ICRC will issue a caution to a dentist where the ICRC wishes to deliver a message to the dentist that it does not approve of that dentist’s conduct in a complaint file. In the past, such oral cautions were regularly ordered. The fact that an oral caution, had been issued was not required to be disclosed by the RCDS on the Public Register. After October 1, 2015 the fact that the caution is issued, and the contents of the caution will need to be disclosed. This may result in the ICRC choosing to issue less oral cautions. However, dentists should be aware that if an oral caution is part of a complaint disposition, there will be disclosure on the Public Register.
The second significant amendment provides that if the ICRC orders the dentist to complete a Specified Continuing Education or Remediation Program (commonly known as a SCERP) the RCDS must post on the Public Register a notation of that fact, including a summary of the continuing education or remediation programs. As discussed above, many complaints were previously resolved by the ICRC proposing a voluntary undertaking to the dentist to take specified courses. This practice will no longer continue.
The Toronto Star has characterized the use of voluntary undertakings by the College of Physicians and Surgeons of Ontario as “backroom deals”. It is our impression that the Ontario Health Colleges will be reluctant to use voluntary undertakings in the future in complaint matters. If the ICRC determines that the factual issues addressed by the complaint support a finding that the patient was put at risk, then the ICRC will order clinical courses to be taken by the dentist. The fact that the dentist has been ordered to complete specified courses will now be posted on the Public Register.
These amendments will have a significant impact on those dentists who receive a complaint decision from the ICRC that requires either an oral caution or the completion of SCERP courses. Either of these dispositions by the ICRC will mandate disclosure on the Public Register, and the details will become information that is readily accessible to members of the public. Dentists should be aware that it is not uncommon for the ICRC to order a dentist to take courses, in order to address clinical deficiencies identified by a complaint. It is a frequent outcome at the ICRC. We expect that the ICRC will continue to exercise its right to order dentists to take clinical courses, as a disposition in any given complaint matter.
The third change under the proposed By-Law, is that the RCDS will now be obliged to disclose a brief summary of each specified allegation that has been referred to the Discipline Committee, the date of the referral, the status of the Discipline Hearing, and a copy of the Notice of Hearing, which contains a summary of the allegations against the dentist. This amendment will not have a significant impact upon dentists awaiting a Discipline Hearing. The By-Law amendment requires fuller disclosure than previously required by the RCDS. However, the fact that specified allegations concerning a dentist were being referred to the Discipline Committee, was previously posted on the Public Register.
What can a dentist do to avoid negative outcomes?
It is essential that in any complaint where a dentist is accused of putting a patient at risk, that the dentist receive specialized legal advice from the outset of the complaint. If you receive legal advice that there is a risk that the fact situation in a complaint could result in a conclusion by the ICRC that a patient was put at risk, then the dentist should consider immediately registering and completing the appropriate course or courses to address the potential finding of a clinical deficiency. If a complaint alleges that a dentist performed a root canal treatment unnecessarily, and caused the patient pain and suffering, then the best approach may be for the dentist to enroll in a course in Endodontics. The RCDS has advised that it is prepared to act as a resource to provide direction to dentists as to which remedial courses to take. In this way, when the matter reaches the ICRC, if the dentist has already taken a course or courses to address a clinical deficiency, then this lessens the risk that the ICRC will order that dentist to take such courses. This, in turn, will reduce the risk that the decision by the ICRC will have to be posted on the Public Register.
It is our opinion that the changes to the By-Law will necessitate a paradigm shift in the way in which dentists address patient complaints. Information posted on the Public Register will be disseminated through social media. It is essential that dentists have competent legal advice from the outset of a complaint, in order to receive direction from an experienced lawyer with respect to whether there is likely to be a finding by the ICRC that a patient was put at risk. If we believe that the fact situation in the complaint creates the possibility that a finding of patient risk will be made, then we will direct our dentist clients to immediately take a course or courses, to lessen the risk that the ICRC will order such courses.
The concept of patient risk will become much more important, and will govern the potential dispositions by the ICRC. Those dentists who have a prior complaint history suggesting previous allegations of clinical deficiencies in a specific area are most at risk. Under the scheme that will be in place after October 1, 2015, a dentist’s prior complaint history may have more serious ramifications than in the past.
Concerns with transparency
It is our opinion that the Ontario Ministry of Health’s transparency initiative ignores the reality that the Regulated Health Professions Act serves two purposes, to protect the public interest, but also to regulate the practice of each profession. It should be understood that in regulating the standards of practice of each health profession, that the health professional must be afforded fairness and natural justice. Recent media coverage with respect to transparency at the Ontario Health Colleges ignores the rights of health professionals to be treated fairly. Not all debates with respect to disclosing complaints should be based solely on arguments focusing on the public interest. The Regulated Health Professions Act, at Section 3 provides in part as follows:
“It is the duty of the Minister to ensure that the health professions are regulated and coordinated in the public interest”.
The case law is clear that the regulation of health professionals must be administered in a manner that provides procedural fairness to the health professional. My concern about the RCDS By-Law amendments is that there will now be significant prejudice to those dentists whose names and complaint particulars must be disclosed on the Public Register. A dentist who has not been convicted of professional misconduct, and has not been afforded an actual hearing, or found guilty of standards of practice misconduct, will still suffer the stigma of his or her name appearing on the Public Register. One of the most devastating consequences for a dentist is to have his or her name appear in the RCDS Dispatch, as a consequence of being convicted of professional misconduct, at a Discipline Hearing. The reputational damage caused by the publicity arising from a misconduct finding is considerable.
The unfortunate reality is that patients will not readily differentiate between a dentist who has been ordered to take courses by the ICRC arising from a complaint, and a dentist who has been convicted of professional misconduct. To members of the public, both dispositions may seem equivalent, both suggesting that the dentist is lacking in competence. Many patients now utilize Google as a method of choosing dentists, and investigating the dentist’s background. Patients have the right to choose the dentist they want to see. Dentistry in the GTA is an extremely competitive business. Information posted on the RCDS Public Register with respect to a dentist’s clinical deficiencies will negatively impact that dentist’s practice. This is most unfortunate, given that the ICRC isn’t technically making a finding of professional misconduct. Yet the stigma from adverse publicity will be as bad as if the dentist was convicted of professional misconduct. Dentists who have a complaint matter at the ICRC are entitled to a limited level of procedural fairness. There is no right to an oral hearing, and there is no right to cross-examine your accuser.
Of all health professionals, it is my opinion that dentists run the greatest risk of facing malicious complaints. This is because of the business of dentistry. Dentists are obliged to have a direct contractual relationship with their patients. Where there is an issue with respect to payment of outstanding fees, patients often complain to avoid having to pay. I have dealt with many unmeritorious complaints against dentists that have been made simply to allow the patient to avoid having to pay an outstanding receivable. It is my opinion that it is unfair for the provincial government to require so called “transparency” without adding procedural safeguards to ensure that the dentists who wish to prove their innocence, have the ability to do so, at a hearing where natural justice rights would be provided.