How do Colleges Handle Complaints from Someone other than a Patient?

Anyone can file a complaint about a regulated health professional’s conduct, be it a patient, a patient’s family member or friend, a colleague, an employer or even a business competitor.

All complaints, regardless of their source, are considered by the college’s Inquiries, Complaints and Reports Committee (“ICRC”), which gathers and reviews information about the matter in order to determine what course of action should be taken, if any, to protect and promote the public interest. The process of the ICRC’s investigation may differ, however, depending on the identity of the complainant.

In order to properly investigate a complaint, the ICRC is often required to obtain patients’ health records. Where a patient files a complaint about the care they received from a health professional, the patient’s written consent is generally not required for the college to obtain the patient’s records from the health care provider. In practice, however, the patient’s consent is often sought and the patient may choose to limit what information can be disclosed. Where the complainant is someone other than the patient, the ICRC is required to obtain written consent from the patient before the member who is the subject of the complaint can disclose the patient’s health records to the ICRC.

If a patient is unwilling to provide consent for the release of his or her health records, the ICRC may request that the Registrar appoint an investigator under section 75(1)(c) of the Health Professions Procedural Code, which is Schedule 2 of the Regulated Health Professions Act. The appointed investigator has broad investigative powers, which include the authority to obtain full access to a patient’s health records in the absence of the patient’s consent.

Health Professions Appeal and Review Board Decision

This is exactly what occurred in a decision of the Health Professions Appeal and Review Board (“HPARB”) from earlier this year, where a complaint was made about a family physician by the estranged wife of one of the physician’s patients. In this case, the wife expressed concerns with the physician’s prescribing practices, including that the inappropriate provision of drugs to her estranged husband had caused significant trauma to her family.

The ICRC of the College of Physicians and Surgeons of Ontario (“CPSO”) sought the patient’s consent for the release of his medical records from the physician, but the patient refused to provide it. In order to obtain the patient’s medical records, the ICRC asked the Registrar to appoint an investigator under section 75(1)(c). The physician provided her response to the complaint and the information obtained during the investigation, and the ICRC ultimately decided to take no further action.

Despite the ICRC having undertaken a section 75(1)(c) investigation, HPARB was not inclined to presume that the investigation was adequate or the decision was reasonable. After completing what must have been an exhaustive review of the record, HPARB found that the investigation was inadequate for three main reasons: (1) the ICRC did not consider the full text of all available prior decisions regarding the physician or provide the decisions to the physician for her comment; (2) the ICRC had not referred to any specific CPSO policies in its decision and as such HPARB could not determine whether the physician complied with these policies and whether the ICRC’s decision was reasonable; and (3) the ICRC did not determine whether physician’s referral notes existed and what their contents were.

Lessons for Health Care Professionals

When a health care professional becomes the subject of a complaint, it is important to remember that there are restrictions on the personal health information that can be disclosed in order to respond. In particular, where the complainant is not the patient, the college will need to obtain the patient’s consent or have the Registrar appoint an investigator before obtaining the patient’s health records. In addition, the college may be permitted access to only a specific portion of a patient’s record. As such, health care professionals who have been notified that someone has filed a complaint about their conduct should wait for the college to explicitly request patient health records before releasing any personal health information.