HPARB Confirms No Action Against Dentist for Professional Advertising
In R.S.W. and H.P.[1], the Health Professional Appeal and Review Board (the “Board”) reviewed a decision of the Inquiries, Complaints and Reports Committee (the “Committee”) of the Royal College of Dental Surgeons of Ontario (the “College”).
R.S.W.(the “Applicant”) received dental treatment from H.P., a general dentist (the “Respondent”). The Applicant brought several complaints to the College about the Respondent’s advertising practices. The College considered the complaints made by the Applicant and decided to take no further action against the Respondent. The Applicant then requested for the Board to review the Committee’s decision.
Summary of Events
In 2013, the Respondent provided treatment to the Applicant, which did not have a positive outcome. The Respondent has not treated the Applicant since 2013. However, the Applicant has continuously made several complaints to the College about the Respondent’s clinical practice and advertising practices.
In 2016, the Applicant brought a complaint to the College that raised concerns about the Respondent’s clinical practice. The Committee ordered the Respondent to address clinical concerns by completing a specified continuing education and remedial program, which included a course in endodontics.
The Applicant made another complaint to the College in 2016, this time with respect to the Respondent’s professional advertising. The College used an alternative dispute resolution process to resolve the issues.
In May 2017 and February 2018, the Applicant filed three more complaints (discussed below), each having to do with the Respondent’s professional advertising practices. While the College processed each complaint separately, the Committee issued one decision for all three matters (the “Decision”), which was to take no further action with respect to the three complaints. The Applicant asked the Board to review the Decision.
The Complaints
In May 2017, the Applicant made a complaint about some of the information the Respondent included on his social media and his practice website. The Applicant alleged that the Respondent’s advertising violated the College’s policies and the regulations by including information that was untruthful, misleading, ambiguous, and confusing.
That same month, the Applicant brought another complaint to the College about the Respondent’s advertising. Specifically, he alleged that the Respondent and three other dentists in his practice used language that was misleading and suggested higher quality services, and that the Respondent displayed offers, incentives and/or giveaways.
In February 2018, the Applicant brought a third complaint about the Respondent. The Applicant alleged that the Respondent advertised that he provides “sleep dentistry” when he is only authorized to provide conscious sedation.
The Respondent responded to the substantive allegations in the complaints. He also explained that the Applicant’s previous complaint with respect to his advertising was resolved by way of dispute resolution and since that time, the Respondent frequently receives guidance and approval for his advertising and marketing material from the College and he only uses material which the College has approved.
The Powers of the Board
When reviewing a decision of the Committee, the Board can only consider (1) the adequacy of the Committee’s investigation and/or (2) the reasonableness of the Committee’s decision.
The Board can then take one of the following steps:
confirm all or part of the Committee’s decision;
make recommendations to the Committee;
require the Committee to exercise any of its powers other than to request a Registrar’s investigation.
The Board’s Review of the Committee’s Decision
The Applicant submitted written arguments to the Board, but he did not participate in the review. In his written submissions, the Applicant argued that the Committee’s investigation was inadequate and its decision unreasonable. He stated that the Respondent’s inability to comply with the advertising rules and regulations was emblematic of bigger problems in the dentistry industry in Ontario and that other dentists continue to contravene the College’s advertising rules. The Board noted that these issues were not before the Board at this time and were beyond its mandate for review.
Adequacy of the Investigation
With respect to the allegation that the Committee’s investigation was inadequate, the Applicant argued that the Committee failed to investigate the information that remained on the Respondent’s practice website which contravened the legislation and applicable policies. He also argued that the Committee failed to complete a fulsome investigation by not investigating and considering the Respondent’s prior history before the College.
The Board explained that when reviewing the adequacy of the Committee’s investigation, it determines whether the Committee obtained information that is relevant to making a decision about the issues raised in the complaint. As a screening committee, the Committee determines whether to refer allegations of professional misconduct to the College’s Discipline Committee or if alternative remedial action is warranted in the circumstances.
The Board found the Committee’s investigation to be adequate. The Committee reviewed the Applicant’s complaints, his correspondence regarding the complaints, as well as the responses from the Respondent and the replies from the Applicant. The Committee also reviewed the Respondent’s conduct history with the College. The Board concluded that there was no additional information, if obtained by the Committee, that would have reasonably affected the Committee’s decision. The Board found the Committee fulfilled its screening role by obtaining and reviewing sufficient information and making an informed decision.
Reasonableness of the Decision
The Board explained that when it reviews the reasonableness of a Committee’s decision, it is not required to determine whether it would arrive at the same decision as the Committee, but whether the Committee’s decision can be supported by the information it obtained and whether the Decision can “withstand a probing examination”. The Board considers whether the Committee’s decision falls within a range of possible and acceptable outcomes.
The Committee found that the information before it did not support taking action against the Respondent. In fact, the Committee was satisfied that there was no or minimal risk to patient care or safety or the public interest. While the Committee identified some text on the Respondent’s website that needed improvement, it found this conduct did not pose a significant public risk. The Board recognized that the Committee reached this decision by assessing each matter by using a Risk Assessment Framework (that is available on the College website). The Board found the Committee appropriately identified and recognized that the Respondent addressed and removed some of the language on his website that were concerning to the College.
The Board found the Committee’s decision to be reasonable because the Committee considered the issues raised in the three complaints and recognized that the Respondent accepted the issues were serious and that his advertising required changes. The Board found the Committee accepted the Respondent’s position that he understood his advertising required changes and that he was proactive in resolving any of the Committee’s concerns in this regard.
The Board found the Committee appropriately fulfilled its mandate to protect the public interest and even took steps to remediate issues of concern by issuing advice to the Respondent.
Conclusion
The Board confirmed the Committee’s Decision to take no further action against the Respondent. This decision is a helpful reminder of the Board’s powers and mandate when reviewing Committee decisions and the actions the Board may take upon a review of the Committee’s decision.
Most interesting and notable is that this is an instance where the Respondent’s prior history with the College was helpful to the Respondent. The Committee had before it the Respondent’s conduct history with the College. The Committee noted that the Respondent’s prior history demonstrated that the Respondent took opportunities to accept the seriousness of the issues previously raised and took steps to address the Committee’s concerns in accordance with the College’s expectations and requirements. The Respondent adhered to his previous agreement with the College, which was to have the College review his marketing and advertising materials. This demonstrated that the Respondent had insight into his conduct and showed a commitment to taking steps to remediate concerning conduct. He appropriately addressed concerns that he (and his advertising practices) posed a risk to the public.
[1] R.S.W. v H.P., 2020 CanLII 25986 (ON HPARB).
