Discipline Committee Referral
Of course, there are some mistakes that are so serious that no amount of courses taken by a dentist will prevent a referral to the Discipline Committee. A referral to the Discipline Committee is the third and most serious potential outcome arising from a patient complaint. Typically, only the most serious cases are referred to the Discipline Committee. The types of cases that get referred to the Discipline Committee are often cases that involve moral turpitude. For example, a credible allegation of sexual misconduct will typically be referred to the Discipline Committee. In addition, any cases where there are clear repeated instances of dishonesty are more likely to be referred to the Discipline Committee. Cases where the dentist has lied to patients or misled patients for financial gain are likely to be referred to the Discipline Committee. In addition, any cases where the ICRC considers that a dentist has attempted to mislead the ICRC in the manner in which the dentist has responded to the patient complaint are also more likely to be referred to the Discipline Committee.
A complaint is more likely to be referred to the Discipline Committee if that dentist has prior complaints similar to a current complaint or a disciplinary history involving issues related to a current complaint. Once a dentist is convicted of professional misconduct at the Discipline Committee, the ICRC is more likely to refer that dentist to the Discipline Committee if further misconduct is identified during the course of a complaint investigation. It is rare that a pure standards of practice issue is referred to the Discipline Committee. A clinical dentistry error that leads to serious patient consequences is more likely to get referred to the Discipline Committee. More recently, the RCDS has taken a far more pro-active and aggressive approach to breaches of the sedation guidelines. Repeated breaches of sedation guidelines may also warrant a referral to the Discipline Committee.
If a complaint is not appropriately dealt with from the outset, this increases the chances of a referral to the Discipline Committee. Dentists will be aware that a conviction for professional misconduct at the Discipline Committee will be published, and will receive wide circulation amongst the dental profession. In Ontario, the RCDS publishes online articles and information called Dispatch News which includes all Discipline Committee summaries including convictions. When a dentist is convicted of professional misconduct, his or her name typically will appear in the RCDS Dispatch News. This has a chilling effect upon a dentist’s referral base.
Another reason for taking patient complaints very seriously from the outset is the negative consequence for dentists of having a Discipline Committee conviction, or even a prior negative ICRC decision, on their record. In Ontario, the RCDS ICRC is required to review the dentist’s prior history at the RCDS. Therefore, each complaint, even it if is dismissed by the ICRC, will be reviewed if a similar, subsequent complaint is received.
In Ontario we routinely see the ICRC rely upon a dentist’s prior complaint history in making current decisions in current complaints. If the prior history involves criticism of the dentist’s clinical skills in a particular area, and the current complaint involves that area, it increases the chances that the ICRC will either refer the matter to discipline, or make an order that the dentist must take courses, or appear for an oral caution. For example, if there are three prior decisions involving deficient endodontic treatment, and if the dentist has already been ordered to take continuing education courses dealing with endodontic retraining, then the ICRC is likely to treat that dentist more harshly, because the prior history demonstrates a clinical deficiency in that area.
Frivolous and Vexatious Complaints
A small number of patient complaints may be frivolous and vexatious, and can be dismissed by the ICRC at an early stage. The Health Professions Procedural Code of Ontario has a process which allows the dentist to seek a ruling at an early stage that a complaint is frivolous, vexatious or an abuse of process. For example, if it is clear that a dentist never treated a patient directly, and has been wrongly named in the complaint, then this type of complaint may be dismissed at an early stage as frivolous and vexatious. I have had other instances where a patient has complained about the manner in which a dentist pronounces certain words, or makes some other outrageous allegation that has nothing to do with the practice of dentistry. In these cases, an effective written submission at an early stage may allow the ICRC to dismiss the complaint as frivolous and vexatious. If this early dismissal occurs, the dentist doesn’t have to make a substantive response.
Our firm’s approach to patient complaints
Our firm has been acting on behalf of dentists at the RCDS for the last 30 years. Our firm also acts for numerous other professionals, including physicians, lawyers, optometrists, psychologists, optometrists, pharmacists, veterinarians, chiropractors, massage therapists, physiotherapists, nurses, dietitians and dental hygienists amongst others. Our firm has assisted dentists in Ontario in hundreds of patient complaints. Our considerable experience acting for dentists has provided our firm with a reasonable level of knowledge with respect to various aspects of dentistry and dental practice. We are not dentists, but we have sufficient experience to be able to spot issues that might not be apparent to lawyers with less experience in the field of dentistry.
Our approach to patient complaints is to take every step necessary to put an effective defence forward, from the outset. Typically, we follow the steps below in responding to a patient complaint:
- The dentist must prepare a response, in her own words, to the issues raised in the complaint;
- The dentist must transcribe all handwritten chart entries so that they are easily legible for the lawyer, and the RCDS;
- If any other staff members or dentists in the practice have information with respect to the complaint, those witnesses will be interviewed. For example, a dental hygienist or dental assistant may recall the informed consent discussion before a patient agreed to have a root canal. The receptionist may recall a patient yelling loudly at the dentist, or swearing or acting inappropriately;
- We consider whether an expert opinion would assist the dentist. It may strike dentists as unusual that an expert opinion would be considered at the Complaints Committee level. However if the complaint is serious enough, the provision of a timely expert opinion may defuse the complaint at an early stage;
- It may be necessary for us to request other records from the RCDS. An x-ray may be in the possession of another dentist. The RCDS typically collects patient records from all prior and subsequent treating practitioners. We are very careful to review all records to see if the contents of those records may be of assistance to the dentist; and
- As indicated above, we are now recommending to our dentist clients who have made mistakes that are identified in patient complaints to be proactive and address those mistakes by taking a course or courses well before the ICRC makes a decision. In this way the dentist can lessen the possibility that courses will be ordered that will be publicly disclosed. This requires the lawyer and the dentist to agree together on issues where it is clear that the dentist has made mistakes.