In a recent series of blog posts, we have been providing updates on the steps taken by various colleges to make more information about health care professionals publicly available, in furtherance of the ongoing initiative of all Ontario health regulatory colleges to increase transparency.
The latest regulator to do so is the College of Physiotherapists of Ontario (“College”), whose Council recently approved by-law changes at its March 26-27, 2015 meeting. The new by-law provisions require the following information about its members to be posted on the public register:
- licenses to practise/certificates of registration in other jurisdictions or with other professions;
- findings of professional misconduct or incompetence made by a regulatory body in another jurisdiction or profession;
- criminal charges; and
- some decisions of the College’s Inquiries, Complaints and Reports Committee (“ICRC”), including:
- oral cautions;
- specified continuing education or remediation programs (“SCERP”); and
With the exception of the decisions made by the ICRC, the information set out above will be made public as of July 1, 2015.
These changes represent Phase Two of the College’s commitment to transparency. The College’s Phase One by-law amendments, which were approved by Council at its meeting in December 2014, provide that the College will make the following information about physiotherapists available to the public:
- status of all discipline hearings;
- full notice of hearing, including the list of concerns about a member’s practice or conduct that have been referred to the Discipline Committee;
- criminal findings of guilt;
- bail conditions; and
- whether the physiotherapist uses the services of support personal in his or her practice.
Undertakings, Oral Cautions and SCERPs
Under the new by-law amendments, when a decision of the ICRC includes or is contingent upon an undertaking, a summary of the ICRCs decision will be made available to the public. This provision applies to ICRC decisions made in respect of a complaint or a report made against a physiotherapist on or after July 1, 2015.
By way of background, undertakings are voluntary agreements into which a physiotherapist and the College may enter to address identified concerns. Undertakings may include practice restrictions and/or certain obligations to be completed by the physiotherapist in order to address practice issues identified by the College. The College has made it clear that undertakings related to a member’s incapacity will not be made available to the public.
Once the physiotherapist has completed the requirements set out in the undertaking, a notation will be included on the public register. In addition, the College will include a notation on the register if the ICRC’s decision in under appeal.
The recent changes to the by-laws also provide that all oral cautions and SCERPs ordered in relation to a complaint or report made against a member on or after July 1, 2015 will be posted on the public register. The specific information to be posted publicly about oral cautions and SCERPs will include:
- a summary of the ICRC’s decision to issue an oral caution or require that a member complete a SCERP;
- a summary of the content of the caution;
- if applicable, a notation that the decision has been appealed; and
- once the requirements of the SCERP have been completed by the physiotherapist, a notation to this effect.
The information about undertakings, oral cautions and SCERPs will not, however, remain on the public register indefinitely. If an ICRC decision is overturned on appeal, the summary will be removed from the register. In addition, SCERPs and oral cautions will be removed three years after the decision was made, unless the member is subject to a subsequent oral caution, SCERP or undertaking, in which case this information will be removed three years after the most recent oral caution or SCERP was published on the register or the most recent undertaking was completed.
With respect to undertakings, the ICRC can set out in its decision a period during which the undertaking will remain on the register after the requirements have been fulfilled. Where such a period is not specified, the undertaking will be removed 3 years after its requirements are completed.
The member may also make a written request to the Registrar to have the information removed when the member feels it is no longer relevant to her or his suitability to practice. The Registrar will remove the undertaking, SCERP or oral caution where he or she believes that the removal outweighs the interest of any person affected or the public interest.
Criminal Charges and Convictions
Following the recent by-law amendments, the College is required to post a summary of any charges laid on or after July 1, 2015 against a member under the Criminal Code or the Health Insurance Act that the College knows about. In addition to charges, the College will be posting a summary of any criminal or Health Insurance Act convictions made on or after July 1, 2015, including a summary of the finding and the sentence and, if applicable, a notation that the finding is under appeal.
The member must make a written request to have this information removed from the register. Findings of guilt will only be removed if the member successfully appeals the court’s decision or if the member is pardoned. Charges will be removed where there is no finding of guilt made against the member.
Surprisingly, unlike the by-laws of the Royal College of Dental Surgeons and the College of Pharmacists, the College of Physiotherapists’ new by-laws do not specify that only those criminal charges and findings of guilt that the Registrar believes are relevant to the member’s suitability to practise will be posted on the public register. It will be interesting to see what approach the College takes in practice – whether it will post all known charges and findings of guilt under the Criminal Code and the Health Insurance Act, or whether it will limit the register to those charges and findings it believes to impact on the member’s practice.
All of the changes set out above will have a significant impact on the way the College operates and on all physiotherapists who are subject to a College complaint or investigation. After July 1, 2015, physiotherapists who become the subject of a complaint or a College investigation face the possibility that the details of the ICRC’s decision will be made known to the public, even if the matter is not referred to a discipline hearing. This is a drastic change, which will undoubtedly affect the way in which physiotherapists respond to College complaints and investigations.
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