Review Board: Oral Caution for Problematic Advertising Unreasonable

In a case involving a pharmacist, the Health Professions Appeal and Review Board (the “Board”) recognized important mitigating factors and the very serious consequences of an oral caution, and found that the Inquiries, Complaints and Reports Committee’s decision to issue an oral caution for problematic advertising was unreasonable.

The Complaint

A pharmacist complained that a fellow pharmacist’s sign, which stated “lowest dispensing fee in the area” and advertised and compared prices with another pharmacy, did not meet the advertising requirements of the Ontario College of Pharmacists. Further, the complaint noted that the pharmacist distributed gift cards “door-to-door” offering $5.00 off and which bore the words: “Committed to offer the best price in all categories. Come & check our price”. The gift cards did not say that they could only be used on non-prescription items only.

After the complaint was made, the pharmacist immediately removed the sign and stopped distributing the gift cards (which were distributed in the store and not door-to-door as submitted by the complainant) and advised the College that he advertised his prices to be transparent, that the College required dispensing fees for Ontario Drug Benefit Plan (ODBP) patients be displayed, and that there was a sign in the store indicating the gift cards were for non-prescription items only.

The Committee investigated the complaint and decided to issue an oral caution to the pharmacist.

Inadequate Investigation

The pharmacist who was the subject of the complaint sought a review of the Committee’s decision to the Board. At the review, the Board concluded that the College’s investigation was inadequate, on the basis that the photo of the sign obtained by the Committee was not clear and that a better photo would have shown that the sign contained an express reference to the ODBP. A more thorough investigation would also have ascertained that the pharmacist immediately removed the sign, stopped handing out the gift cards, and that the gift cards were never distributed door to door. “Oral Caution” vs. “Advice & Recommendations”

The Board went on to find that the Committee’s decision to issue an oral caution did not fall within a range of possible, acceptable outcomes in light of the facts and the law and was therefore, unreasonable. The Committee failed to take into account several mitigating factors, including that the pharmacist was a relatively junior pharmacist, this was the first time he owned and managed a pharmacy, he had no complaint history, and that the pharmacy was inspected by the College when it opened and there were no issues raised regarding his sign.

An oral caution (a face-to-face discussion between the practitioner and the Committee) is ordered when there is a significant concern about conduct or a practice that can have a direct impact on patient care, safety or the public interest if it is not addressed. If a pharmacist (or any heath professional) is ordered to receive an oral caution, the fact of the caution will be posted on the public register. However, if the outcome of a complaint is to provide “advice” to the pharmacist (which  occurs when the investigation reveals  concerns of a minor nature that pose little risk to the public), this is not made public.

The Board in the past has found that in cases of complaints regarding advertising, it was reasonable for the Committee to consider an oral caution as only a “last chance” for a member to alter advertising practices to comply with the advertising regulation. An oral caution which has “very serious consequences,” was not reasonable on the facts of this case. Instead, the Board found that the appropriate disposition was the provision of advice to the pharmacist that he ensure that his advertising was in compliance with the applicable regulations.  Such a disposition struck “an appropriate balance . . . between protection of the public interest and fairness to the [pharmacist].”

Takeaway

Oral cautions carry very serious consequences for health professionals, in part due to the fact that these will be posted on the public register for anyone to see. The Board in this case recognized that where there is a significant concern that could impact patient care or put the public at risk, an oral caution may be appropriate. However, where there are mitigating factors and concerns of only a minor nature, an oral caution will likely be an unreasonable outcome.

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