A recent decision of the Health Professions Appeal and Review Board (“HPARB”) serves as a reminder that not every type of complaint that a person may have about a regulated health professional is suitable to raise with the professional’s regulatory college. While there are many examples of situations in which a professional’s actions occurring outside the provision of clinical services have triggered regulatory scrutiny, this case demonstrates that there are certain types of so-called “off duty conduct” which will not be appropriate for the college complaints process.
The case involved a dispute between a physician and a chiropractor. The physician had retained a company (of which the chiropractor was a director, officer and shareholder) to assist with fee collection and other administrative services in his practice. Following the company’s failure to honour the agreed upon payment plan, the physician terminated the company’s services and pursued the matter through the courts. Over a year after the completion of the lawsuit, the company had not yet paid the court judgment awarded to the physician, and so the physician filed a complaint with the College of Chiropractors of Ontario (the “College”).
In his complaint, the physician alleged that, among other things, the chiropractor was in violation of the College’s Code of Ethics because he failed to comply with a court judgment, failed to work collaboratively with another health professional to pay the company’s debt, and failed to maintain professional dignity, honour and integrity. According to the physician, the chiropractor was also in breach of the standards of practice for defaulting on an agreement for professional services, and for having false, inaccurate or misleading accounting and billing practices. In his response to the complaint, the chiropractor noted that the concerns raised by the physician arose in the context of a commercial arrangement and a subsequent dispute that was still ongoing within the court system.
The Inquiries, Complaints and Reports Committee (“ICRC”) of the College investigated the complaint and decided to take no further action, noting that the matter appeared to be a commercial dispute with too tenuous a link to chiropractic patient care to be subject to the provisions relating to professional misconduct set out in the Regulated Health Professions Act, 1991 and the regulations under the Chiropractic Act, 1991. Furthermore, the ICRC determined that the chiropractor’s conduct would not reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional.
The doctor made a request to HPARB to have the ICRC’s decision reviewed. On appeal, HPARB upheld the ICRC’s decision, finding that the investigation into the physician’s complaint was adequate and that the decision to take no further action was reasonable. HPARB noted in its reasons that there was no doctor-patient relationship between the chiropractor and the physician’s patients, and that the matter was essentially a business disagreement resulting from a commercial administrative billing arrangement:
There is no suggestion that the [chiropractor] ever provided clinical chiropractic services to the [physician] or his patients. The [chiropractor] just happens to be a licensed chiropractor as well as the controlling mind of [the company].
The court system, not the College’s complaints and discipline process, was the appropriate forum for resolution of this dispute, said HPARB, calling the complaint a collateral attempt by the physician to obtain reimbursement for the money he believed he was owed by the company. In conclusion, HPARB specified that while there are situations where a regulated health professional’s conduct and actions arising outside the provision of clinical services might be considered disgraceful, dishonourable or unprofessional, this was not such a case.
This is not the first time that a health regulatory College has found that the complaints process is not the appropriate forum to resolve issues arising out of a business dispute. So, what lessons can be garnered from these decisions? Although there is no formula for determining when a complaint will be considered purely a business dispute that does not involve professional conduct issues, it is evident that one of the most relevant factors to the colleges (and HPARB) is whether the impugned actions or conduct have any impact on patients. If you have any questions about this case or are a health professional facing a complaint that involves matters you believe to be commercial in nature, we invite you to contact us for further information or advice.
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