Responding to a ‘Meritless’ College Complaint
When faced with a complaint from a patient, or even from someone else (such as a member of the patient’s family, a colleague, or any other person), health professionals typically review the complaint, think about the interaction(s) or situation that gave rise to the complaint, and review their notes and records relating to the patient (where applicable), and then discuss these with their counsel. Often, the health professional feels that there was no omission or act of misconduct or incompetence in his or her care and treatment of the patient. In these circumstances, the professional may wonder: Why bother responding? Is a response to the complaint even necessary?
The first thing to remember is that health professionals cannot be objective when assessing or responding to a complaint about their conduct or care and treatment of a patient. That is why it is so important that health professionals obtain the assistance of a lawyer before responding to a complaint. The lawyer may identify concerns that need to be addressed in order to prevent a minor complaint from becoming a major headache.
Unfortunately, the health professional’s College (and specifically, the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College) is required by its governing legislation, the Regulated Health Professions Act, 1991 (the “RHPA”) and the Health Professions Procedural Code, which is Schedule 2 to the RHPA, to investigate all complaints filed with the Registrar regarding the conduct or actions of a member. This includes giving the member notice of the complaint and an opportunity to respond to same, as well as taking any other appropriate investigative steps. After investigating the complaint, considering submissions of the member and making “reasonable efforts” to consider all records and documents it considers relevant to the complaint, a panel of the ICRC may take action including:
-referring specified allegations of misconduct or incompetence to the Discipline Committee;
-referring a member to a the ICRC for incapacity proceedings;
-requiring a member to appear before a panel of the ICRC to be cautioned;
-taking any other action the panel considers appropriate; or
-taking no further action (the best possible result for a member). There are only two exceptions to this:
Where the Registrar of the College considers it appropriate, the complaint does not involve an allegation of sexual abuse, and the member and complainant both agree, the Registrar may refer the complainant and the member to an alternative dispute resolution (ADR) process (where the College has such a process in place). This process may result in the resolution of the complaint, but any resolution is still subject to review by the ICRC panel considering the matter. By way of example, ADR is used frequently by the Royal College of Dental Surgeons of Ontario ( the “RCDSO”). Approximately 65% of ADRs conducted by the RCDSO result in a resolution. Typically, the best chance of resolution through ADR is when a dispute or complaint is based on fees, a miscommunication or where a complaint is really directed at the wrong person. Many complaints, however, simply cannot be resolved through ADR, and the College attempts to identify these in advance and will therefore not propose or agree to the ADR process.
The panel may also take no action in respect of a complaint if the panel considers a complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. However, this power can only be exercised if the panel first gives the complainant and the member notice that it intends to take no action with respect to the complaint. The complainant and the member then have a right to make written submissions within 30 days after receiving the notice. For this reason, it is often no less onerous for a member to respond to the complaint on its merits than to ask that the panel take no further action on the basis that the complaint is frivolous, vexatious, etc. Further, panels are loath to take no action on this basis except in the clearest of cases, as complainants have the right to seek a review of such a decision (as with any decision of the ICRC excluding the referral of allegations of misconduct or incompetence to the Discipline Committee). For this reason, we rarely ask the ICRC to exercise its powers under this section of the Code, even where a professional feels the complaint is without merit.
Unless one of these exceptions apply, a health professional has no choice but to respond to the complaint on it merits. The member must, unfortunately, respond to what may seem to be a meritless complaint, and there is no recourse through which the member can seek compensation from the College for the expense, time and trouble associated with responding to same. (We have previously commented on why health professionals should never consider suing the complainant). Responding to patient complaints is a professional obligation and simply one of the “costs of doing business” in a self-regulated profession.
