What Is A “Review” At The Health Professions Appeal And Review Board? Plus, Some Helpful Guidance From Recent Review Decisions

The Health Professions Appeal and Review Board (the “Board”) is an independent adjudicative agency that, on request, reviews decisions made by the Inquiries, Complaints and Reports Committee (the “Committee”) of the various regulated health professional colleges in Ontario after a patient makes a complaint.

The Board does not review discipline cases but will review decisions by the Committee that fall short of discipline (for example, a decision to order remedial action or to issue an oral caution). The mandate of the Board in a complaint review is to consider either the adequacy of the Committee’s investigation, the reasonableness of its decision, or both. The Board’s review is based on the written record before the Committee. These review cases often provide helpful guidance for health professionals. This post summarizes three related review decisions:

Be Mindful of Patient Vulnerability, the Power Imbalance & Proceed with Caution and CareAll three decisions (2018 CanLII 71481, 2018 CanLII 71525, 2018 CanLII 71549) arise from the same set of facts:

A patient with hearing loss was treated by his primary audiologist and then referred to a second audiologist for Tinnitus Retraining Therapy (TRT) at a clinic. The patient expressed concerns to the TRT audiologist that actions taken by his primary audiologist “worsened” his hearing. According to the patient, the TRT audiologist agreed with him and the patient confirmed this in a letter he wrote to his primary audiologist. On seeing the letter, the TRT audiologist took issue with it and denied agreeing with the patient regarding the primary audiologist’s actions.

In order to address this issue, the patient, the TRT audiologist, the Director of the clinic (also an audiologist) and the primary audiologist held a meeting. The patient later made a complaint against all three individuals stating that an “abuse of authority” had occurred as the Director advised him that his tinnitus appointments might not continue, depending on his answers at the meeting. The Director also refused to provide his meeting notes afterwards when the patient asked for them. Further, the patient argued that the TRT audiologist should have corroborated his initial statements that he agreed that the primary audiologist actions negatively affected his hearing and should have addressed the Director’s “unethical behaviour”. The patient also felt that the TRT audiologist had attempted to attribute his increased agitation respecting his sound sensitivity to his emotional state and to his antipsychotic medication.

The Director responded that at the meeting he was concerned that the patient was going to commence a lawsuit and he advised the patient that, if this was the case, it could place a constraint on the professional relationship. The Director was relying on the clinic’s exclusion policy which precludes candidates from TRT services if there is litigation, however, the Director never advised the patient of the policy.

Power Imbalance

The patient met with three healthcare professionals, two of whom were directly responsible for his care. The Committee emphasized that the inherent power imbalance between the health care professionals and the patient “was heightened” at such a meeting and appreciated how the meeting could be intimidating and could “even be seen as an abuse of authority” (although the Committee noted that no abuse of authority was supported by the information provided).

In its decision the Committee stated that the TRT audiologist should have taken proactive steps to address the imbalance, such as offering to have a support person attend with the patient.  The Committee also commented that the TRT audiologist should be cognizant of this power imbalance in all interactions with patients. The Committee directed a written reminder to the TRT audiologist to emphasize the Committee’s expectation that he be mindful of the vulnerable place from which patients interact with health care professionals and to proceed with an appropriate level of caution and care.

Transparency is Key for Patient Communications

With respect to the complaint against the Director, the Committee stated that it could appreciate why the Director’s interactions with the patient could be perceived by the patient as “pompous, coercive or manipulative” as the Director organized and led the meeting. The Committee stressed that the Director should be cognizant of how a patient would feel or interpret being informed that they “needed to stop blaming” the primary audiologist. Had a more clear and transparent conversation occurred, including a discussion about the exclusion policy, the patient may not have felt that the meeting was coercive. The Committee issued a written reminder to the audiologist Director about the need to be upfront and transparent about his communications and actions and to remember that a power imbalance exists with patients in all interactions.

With respect to the request for meeting notes, while they were eventually provided to the patient, the Committee noted its expectation that, going forward, the Director ensure that he prioritize such requests from patients. These notes are a part of the patient record and the patient has a right to access them upon request.

Informed Consent / Caution re Patient’s Medical & Psychological History

In addressing the patient’s concerns with his primary audiologist, it was noted that the primary audiologist did not fully discuss the risks associated with the treatment provided. The Committee issued a written reminder that a component of informed consent is not just discussing the clinical rationale behind treatment, but also discussing the risks associated with services offered.

The Committee stated that it expected the primary audiologist to undertake more cautious steps in light of the patient’s medical and psychological history. The Committee directed that a written reminder be issued to the primary audiologist to emphasize the need for caution when treating a patient with a history of sound sensitivity and mental illness that could impact the treatment received.

Board Decisions & Takeaways

Upon its review in all three cases, the Board found the Committee’s decisions to be reasonable as they fell within a range of possible, acceptable outcomes that were defensible in respect of the facts and the law.

Some helpful takeaways from these review decisions include: 1) be mindful of the power imbalance between health care professionals and patients in all interactions; 2) transparency is key with patient communications; and 3) proceed with care and caution where a patient’s medical and psychological history requires.

If you have any questions about these decisions, or reviews before the Board in general, please contact us.