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26 Aug

Responding to Complaints Before the Royal College of Dental Surgeons of Ontario: A Defence Lawyer’s Perspective

Monday, August 26, 2019Lad KucisHealth Law, LitigationComplaints, Compliance, Royal College of Dental Surgeons

As legal counsel for dentists, we are routinely asked questions about the complaints process before the Royal College of Dental Surgeons of Ontario (“RCDSO”).

Although the regulatory framework governing complaint matters is quite extensive, the following is the essential information that dentists need to know.

Role of the RCDSO

At the outset, it is imperative that dentists recognize that the mandate of the RCDSO is to protect the public by ensuring that dentists act in accordance with established legislation, standards of practice and codes of ethics. This public protection mandate underlies all actions taken by the RCDSO.

Responding to a Complaint

If a complaint is filed against a dentist, the RCDSO is required to provide the dentist with a copy of the complaint within 14 days.

The RCDSO provides dentists with 35 days to respond to a complaint. If a dentist requires additional time to prepare their response, they should contact the investigator assigned to the file to request an extension. If the complaint relates to the delivery of dental care, the RCDSO will also require the production of all patient records.

In responding to a complaint, it is important to ensure that the response is drafted in a clear and professional manner, addressing each of the concerns in a thorough and reflective manner. A copy of the response is then provided to the complainant, who is given an opportunity to submit a reply.

If the dentist has any prior decisions before the RCDSO, they will also be provided with copies of such cases and an opportunity to make written comments. Any such comments should be made in a submission separate from the response to the complaint, failing which they will be provided to the complainant.

Once the investigation into the complaint is complete, the RCDSO provides both the dentist and the complainant with a Record of Investigation (“ROI”), which sets out all documentation obtained by the investigator. Both parties then have an opportunity to provide a written submission in respect of anything contained in the ROI. Dentists must keep in mind, however, that any correspondence submitted to the RCDSO will be disclosed to the complainant.[1]

ICRC Review

Ultimately, all of the above documentation is provided to a panel of the Inquiries, Complaints and Reports Committee (“ICRC”) for its review. ICRC panels are comprised of two dentists and a public member and possess the authority to make a wide range of dispositions.

One of the most serious actions that the ICRC can take is to refer a dentist to the Discipline Committee on specified allegations of professional misconduct or incompetence. If a matter is referred to the Discipline Committee, a notation of that fact is immediately posted on the public register, which is available on the RCDSO website.

Alternatively, the ICRC may require the dentist to appear before it for a caution or require the completion of a Specified Continuing Education and Remediation Program (“SCERP”). Such actions have become much more serious dispositions over the past few years, as legislative changes now require cautions and SCERPs to be posted on the public register on an indefinite basis.

Another potential ICRC action is to ask the dentist to enter into a voluntary remedial agreement or a voluntary undertaking to restrict their practice.

If the ICRC does not have any significant concerns about the conduct of the dentist, it may decide to take no further action or simply provide advice and recommendations.

With the exception of matters referred to the Discipline Committee (or matters referred for incapacity proceedings), the ICRC will provide reasons for its decisions, as set out in a Decision and Reasons. This document is provided to both the dentist and the complainant.

HPARB Review

Both the dentist and the complainant have the right to request a review of an ICRC decision to the Health Professions Appeal and Review Board (“HPARB”), which is an independent adjudicative agency. The only ICRC decisions that cannot be reviewed by HPARB are referrals to the Discipline Committee or referrals for incapacity proceedings.

In the past, the vast majority of HPARB reviews were requested by complainants. However, dentists are increasingly requesting these types of reviews, as they are seeking to set aside ICRC decisions that have resulted in findings (i.e. cautions and SCERPs) that are now required to be posted on the public register.

The conduct of an HPARB review involves the dentist and the complainant (or their respective counsel) making submissions[2] regarding the reasonableness of the ICRC decision and/or the adequacy of its investigation. It is beyond the mandate of HPARB to engage in any other inquiries.

Following the review, HPARB may do one or more of the following:

  • confirm all or part of the ICRC’s decision;
  • make recommendations to the ICRC;
  • require the ICRC to exercise any of its powers, other than to request a Registrar’s investigation.[3]

Final Comments

In view of the potential consequences, it is imperative that dentists treat all complaints very seriously and take great care in preparing responses and any other submissions. Given the stakes involved, dentists should also strongly consider obtaining assistance from experienced legal counsel to ensure that their interests are being properly protected.

About the Author

Lad Kucis is certified by the Law Society of Ontario as a specialist in health law. As part of his practice, he provides advice and representation to dentists and other regulated health professionals regarding the full spectrum of college matters, including complaints, investigations, discipline and appeals/reviews.

He can be contacted at 416.864.3114 or lkucis@grllp.com.


 

[1]  As noted above, the exception is a submission in respect of prior history before the RCDSO that has been provided separately.

[2] Typically, submissions before HPARB are made orally.

[3] For more information about reviews before HPARB, please see my article, “Complaint Reviews at The Health Professions Appeal And Review Board (HPARB): The Essential Information”, Keeping Current, July 26, 2019.

 

 

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