COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO (CPSO) DEFENCE AND DISCIPLINE LAWYER
The Firm regularly defends Doctors and members of the Health Care industry facing regulatory complaints and criminal charges. Generally as part of the investigation, the patient’s personal health information will be obtained along with other evidence related to the investigation. The Firm defends Doctors facing allegations of sexual abuse against their patients which are often vigorously prosecuted by the College in Toronto. Other allegations the Firm handles include violations with respect to record management, incompetence and dishonorable conduct, sexual impropriety with patients, conduct unbecoming to a physician and other forms of misconduct.
Doctors, like many professionals in Canada, must be adequately educated, licensed and regulated by the province in which they practice. Each province regulates their professionals in their own way. The Firm’s exceptional background in criminal defence pretrial resolution and litigation often resolves proceedings without any formal disciplinary action or sanctions by the regulatory body. The Firm has successfully defended Doctors, Dentists, Lawyers, Paralegals, Law Society Discipline Investigators, Nurses, Accountants, Real Estate Agents, Health Care Professionals, Teachers, Financial Service Sector Employees, City of Toronto and Provincial Government Employees, Police Officers and Canada Boarder Service Officers, Canada Revenue Agency Auditors and many other professionals belonging to regulatory bodies and facing prosecution or criminal charges.
Each province in Canada is responsible for regulating the professionals working within that province. In Ontario, the College of Physicians and Surgeons of Ontario is responsible for regulating the practice of medicine. The goal of the College of Physicians and Surgeons of Ontario is to ensure all physicians are held to the highest professional standards of knowledge and integrity to ensure the highest quality of medical care. College of Physicians and Surgeons of Ontario is responsible for enforcing the Medicine Act 1991, which is discussed in more detail below. They ensure that doctors have received the proper education from an accredited institution prior to beginning practice, that practicing members keep up to date with any necessary on-going education and that all members abide by all of the regulations laid out in the Medicine Act 1991. The main goal is to protect the public from professional misconduct. As such, the College of Physicians and Surgeons of Ontario also accepts formal complaints regarding licensed members and investigates as necessary. If professional misconduct or unethical behaviour is discovered, the College of Physicians and Surgeons of Ontario will be the regulating body responsible for punishing the offending doctor.
Frequently Asked Questions
How are Doctors Regulated?
Doctors in Ontario are regulated by the Medicine Act 1991 which is enforced by College of Physicians and Surgeons of Ontario. This statute outlines various regulations that apply to the practice of medicine including quality assurance regulations, registration regulations and regulations pertaining to professional misconduct. The quality assurance regulations are aimed at insuring a highest level of professionalism is maintained throughout the practice of medicine. This section of the statute stipulates also that all members must keep up to date with continuing education to ensure they are competent at all times. Practicing physicians are required to regularly participate in peer and practice assessments to identify any areas for improvement. This section also specifies that all members must report their compliance with quality assurance measures to the College of Physicians and Surgeons of Ontario annually and lays out additional miscellaneous duties associated with maintaining the highest level of care when treating patients and making medical decisions.
In addition to regulations regarding the practice of medicine itself, the Medicine Act 1991 also outlines the registration regulations associated with becoming a licensed doctor in Ontario. This section mainly focuses on the licensing, registration and academic aspects of the medical profession. It begins by outlining the general conditions and requirements that must be met prior to an individual applying for their medical license, then goes on to outline the requirements for various classes of registration. This area of the statute also outlines the applicable rules for expiry of a medical license.
The final section of The Medicine Act 1991 deals with professional misconduct. This section outlines 34 enumerated acts that have been deemed professional misconduct by College of Physicians and Surgeons of Ontario. Some examples include; failing to maintain the standard of practice of the profession, abusing a patient verbally or physically, having a conflict of interest, failing to fulfill the terms of an agreement for professional services, falsifying a record relating to the member’s practice, failing to respond appropriately or within a reasonable time to a written inquiry from the College and any conduct that is unbecoming to the medical practice.
Doctors practicing within Ontario are also obligated to abide by the College Code of Conduct. The Code outlines various professional standards that must be upkept by doctors including; regulatory compliance, duties to the public, individual treatment of patients and the use of information management technology.
The Complaint Process
Doctors, like any professional, owe a duty of care to their patients. Failure to discharge this duty of care may result in a formal complaint being filed with the College of Physicians and Surgeons of Ontario against the practicing doctor. Virtually any member of the public can file a formal complaint against a doctor. Formal complaints can be filled out online on College of Physicians and Surgeons of Ontario’s website. The complaint must be filed out in writing or using audio or visual recording and must include the following information; a concise statement outlining the complaint with as much detail as possible, the full legal name and address of the doctor as well as any other doctors, health care professionals or other persons who may have relevant information and the contact information of the complainant. There is no time limit on when a complaint can be filed.
What Happens when a Complaint is Filed?
Once a complaint has been received by College of Physicians and Surgeons of Ontario, the College will contact the complainant by phone to discuss the issue. In some situations, the complainants concerns can be dealt with quickly without the need for further investigation. If the issue cannot be resolved quickly without a full investigation, the College will begin collecting all necessary paperwork and will send a copy of the complaint to the doctor for review. The doctor will also have an opportunity to submit a written response to the complaint. If the complaint is being filed by a patient of the doctor, the doctor will automatically have the right to disclose the patients’ medical records to the College as part of the investigation process. If however, the complainant is not the patient, the patient must provide written consent for the doctor to release their medical records before any further investigation can be carried out by the College.
The Inquiries, Complaints and Reports Committee at the College will investigate all complaints that it deems to have merit. The Committee does reserve the right to refuse to investigate complaints it deems to be frivolous, vexatious, made in bad faith or an abuse of process. Should the Committee decline to investigate they will notify the complainant and the doctor directly. In these situations both the complainant and the doctor will have thirty days to propose written submissions indicating why an investigation should be carried out. The Committee will then review these submissions and make a final decision as to whether or not they will investigate further.
If the Committee does decide to move forward with an investigation, they will conduct a full review of all the necessary information that has been provided to them. At no point will either the complainant or the doctor be required to appear before the Committee in person. The process generally takes approximately 10 months to complete. Once the Committee has reached a decision they will send a copy of that decision to the doctor and the complainant. The Committee has the ability to; require the doctor to appear before the Committee to be cautioned for their behaviour, refer the matter to the Fitness to Practice Committee, refer the matter to the Discipline Committee, require the doctor to complete further education courses or taking any other actions it deems appropriate given the circumstances.
The Fitness to Practice Committee deals with situations in which the College feels the doctor may not be capable of practicing medicine due to a physical or mental impairment. If the Committee determines that the doctor is in fact incapable of practicing medicine they may revoke and suspend the doctors certificate of registration or impose conditions on their certificate which will limit their ability to practice medicine in some capacity.
What Penalties may Doctors Face as a Result of a Finding of Professional Misconduct?
The Discipline Committee is responsible for dealing with cases referred to it by the College involving doctors who may be guilty of professional misconduct. The Committee will review the file and determine whether the doctor has committed professional misconduct or is incompetent to practice medicine. A hearing will be held where both the complainant and doctor will present evidence to the Committee. The complainant and other witnesses may be required to testify during the hearing. In cases where the Committee finds the doctor guilty of misconduct or incompetent they may revoke or suspend the doctors registration certificate or impose conditions on their certificate which will limit their ability to practice medicine in some capacity. If the Committee finds that the doctor has committed professional misconduct they may also order the doctor to appear before it to be reprimanded, to pay a fine to the Minister of Finance not exceeding $35,000, or in the case of sexual assault allegations, require the doctor to reimburse the College for counselling provided to the patient as a result of the abuse. In situations where the College has found the doctor guilty of sexually assaulting a patient they are obligated to reprimand the doctor and revoke the doctors certificate of registration if the sexual abuse included certain acts.
It is important to note that a finding of professional misconduct can have very serious implications on a doctors ability to practice. Once a member becomes aware that a complaint has been filed, they are advised to contact qualified legal counsel right away. Our Firm can help guide you through this process to ensure you secure the best possible outcome in your case.
How to Defend a Formal Complaint made to the College of Physicians and Surgeons of Ontario
As with any legal matter, the best defence will depend largely on the allegations being made and the facts surrounding the case. It is important to contact qualified legal counsel immediately upon receiving notice that a formal complaint has been filed. In some cases, the allegations against the doctor will be unfounded, or will not amount to professional misconduct. In these situations the doctor may simply state that they have not violated any of the rules or regulations surrounding the proper practice of medicine in Ontario. In situations where a more substantive response is required, a common way to defend a professional misconduct allegation is to argue that the doctor did not deviate from the applicable standard of care and that by doing so they sufficiently discharged their duty of care to the patient. This essentially means that the doctor did everything that was necessary and appropriate in the circumstances and as a result are not responsible for any negative outcome. In any case, the best plan of defence is to contact qualified legal counsel as soon as possible and allow them to assist in drafting the response to the complaint.
Sexual Abuse Complaints
One particularly serious form of professional misconduct is the sexual abuse of a patient. Sexual abuse of a patient could include inappropriate, unnecessary or non-medical touching, inappropriate comments made to the patient, failing to give the patient sufficient privacy while they are undressing, or touching a patient in certain areas of the body without permission. The College of Physicians and Surgeons of Ontario has a zero tolerance policy regarding sexual abuse and handles all such allegations extremely seriously. It is important to note that sexual abuse of a patient is not only professional misconduct, it is also a very serious criminal offence and could lead to criminal charges being laid against the offending doctor.
Upon contacting the College of Physicians and Surgeons of Ontario about a sexual assault allegation, a complainant will be connected with a College in-take worker who may provide the complainant with more information about the process. All information disclosed by the complainant at this stage of the process will be strictly confidential. Should the complaint decide to go ahead and file a formal complaint with the College of Physicians and Surgeons of Ontario, the complaint process will be handled in much the same way as any other professional misconduct complaint. A copy of the complaint will be sent to the doctor, who will be able to provide a written response to the allegations. The Inquiries, Complaints and Reports committee will then investigate the allegations and determine whether to handle the situation themselves or refer it to the Discipline Committee for further review. Should they decide to forward the case to the Discipline Committee, further review of the file will be conducted and the Discipline Committee will decide how to proceed.
The Discipline Committee will then hire a College lawyer to prosecute the offending doctor. A hearing will be held, which will be carried out in much the same way as civil court. Both parties in the case will present their evidence to the Committee, who will then make a ruling in the case. The complainant, as well as any other witnesses, may be asked to testify during the hearing. The Committee will determine an appropriate punishment for the doctor depending on the circumstances of the case.