Psychiatric Patient Advocate Office - Position Papers - Health Professions Self-Regulation

Health Professions Self-Regulation

December 27, 1999
Dr. Rob Alder, Chair
Health Professions Regulatory Advisory Council
2195 Yonge St., 4^th Floor
Toronto, Ontario
M4S 2B2

Re: Submission in response to "Weighing the Balance: A Review of the Regulated Health Professions Act".

Dear Dr. Alder:

The Psychiatric Patient Advocate Office (PPAO) is a quasi-independent program of the Ministry of Health and Long Term Care. Since 1983 we have provided advocacy and rights protection services to patients in the provincial psychiatric hospitals. We continue to do so at the newly established Centre for Addiction and Mental Health Services in Toronto (formerly the Queen Street Mental Health Centre). As a quasi-independent program, the PPAO does not speak on behalf of the Ministry of Health.

I am pleased to submit the Psychiatric Patient Advocate Office’s (PPAO) response to the Commission’s report "Weighing the Balance: A Review of the Regulated Health Professions Act".

The PPAO works to ensure that patients are treated with dignity and respect, that their legislated rights and entitlements are upheld at all times, and that they are actively involved in all decisions affecting their life, care and treatment. We act on the instructions of patients who have concerns about their care and treatment in the hospital. Periodically we have assisted clients who believe a nurse or physician has behaved unprofessionally, and who have chosen to complain to the appropriate College. The PPAO values a patient’s right to make informed choices, to self advocate, to be autonomous and to participate fully in society.

We believe that all Ontarians must act to ensure an exemplary level of professionalism exists amongst health care providers. Further, we must maintain a system of practitioner accountability that adheres to high standards. Poor professional practice can never be eliminated entirely, but we can, through this review, ensure that the legislation is improved to provide for greater effectiveness, efficiency, flexibility and fairness.

The PPAO has reviewed Weighing the Balance in detail. We have made recommendations in each section. We have also provided information on some of the systemic barriers encountered by our clients in their attempts to avail themselves of the protections offered through the Regulated Health Professions Act (RHPA). In some cases, we provided recommendations within the body of our submission with respect to these barriers. In other cases, we recognize that the issues are not within the scope of this review, but we bring them forward because they are significant issues for our clients.

Public education is an important part of our mandate. We are available to provide on-going education to health practitioners regarding mental health legislation and patient rights. If there are any questions regarding this submission, please contact me at (416) 327-7007 or Barbara Cadotte, Systemic Policy Adviser, at (416) 327-7003.

Sincerely,

_____________________
Vahe Kehyayan (Mr.)
Director

cc. Barbara Cadotte
Systemic Policy Adviser

Response of the Psychiatric Patient Advocate Office to "Weighing the Balance: A Review of the Regulated Health Professions Act"

December 27, 1999

Psychiatric Patient Advocate Office

The Psychiatric Patient Advocate Office (PPAO) is a quasi-independent program of the Ministry of Health and Long-Term Care, established in 1983. We work for the rights of inpatients in Ontario’s nine Provincial Psychiatric Hospitals and the Centre for Addiction and Mental Health in Toronto.

Our mission is:

To provide independent and confidential advocacy and rights advice to consumers of and those seeking access to psychiatric services;
To work to empower our clients to make informed decisions about their care, treatment and legal rights;
To use information, education, negotiation and referral to conduct instructed, non-instructed and systemic advocacy; and,
To conduct public education on those issues.

The PPAO promotes self-advocacy and self-determination. Our mandate is:

To advance the legal and civil rights of psychiatric patients in all provincial hospitals by means of both individual case work and systemic advocacy;
To inform the patient, family, hospital staff and the community about patients’ legal and civil rights;
To assist, facilitate (self-advocacy) and help resolve the complaints made by psychiatric patients by providing an avenue for resolution through negotiation according to the patient’s instructions;
To investigate alleged incidents and to assess institutional and systemic response to these incidents; and,
To refer patients, when necessary, to outside community advocacy resources such as community organization, lawyers or physicians who may offer a second opinion.

As a quasi-independent program, the PPAO does not speak on behalf of the Ministry of Health and Long-Term Care.

Summary Of Recommendations In Respect To Weighing The Balance: A Review Of The Regulated Health Professions Act

Section I – Protection From Harm
The PPAO recommends the Health Profession Regulatory Advisory Council (HPRAC) to advise the Minister of Health to implement public monitoring of health professional activities in Colleges regulated under the RHPA.

The PPAO recommends that HPRAC advise the Minister of Health to reconsider the measures that allow Colleges to dismiss complaints as frivolous or vexatious in order to ensure complainant access to appeal mechanisms within a reasonable period of time. Further, the Minister must ensure that the Health Professions Board is sufficiently resourced so that it may discharge its duties efficiently and effectively.

The PPAO recommends that the HPRAC advise the Minister of Health that the use ADR is not appropriate where a patient declares that sexual abuse has occurred. Further, should HPRAC consider that the use of ADR is appropriate in some cases in regulating the behavior of health professionals, HPRAC must ensure that specific guidelines are developed that ensure that ADR will not be in cases involving suspected malpractice.

The PPAO recommends that where counseling or psychotherapy to address an emotional or psychiatric illness is provided by a regulated health professional, that such counseling or psychotherapy be recognized as a controlled act.

The PPAO recommends that individuals who provide counseling or psychotherapy services for the purposes of treating an emotional or psychiatric illness be subject to regulation as health professionals.

The PPAO recommends that the HPRAC advise the Minister of Health to ensure that the RHPA is amended to include the College of Social Workers and Social Service Workers as a College legislated under the RHPA.

The PPAO recommends that HPRAC advise the Minister of Health to regulate the practice of psychotherapy along the same line as other health practices are regulated. This can be accomplished by identifying counseling or psychotherapy to address an emotional or psychiatric illness as a controlled act that must be performed by a regulated health professional.

Section II – Quality of Care
The PPAO recommends that the RHPA contain clearer definitions and guidelines related to the provisions providing Colleges with the tools they need to ensure that their members provide high quality care. We recommend that HPRAC specify the monitoring and evaluative process each College must apply to assure their members are in compliance and that sufficient penalties are assigned when necessary.

The PPAO recommends that HPRAC act to promote greater public participation and education in regulation of the health care professions through establishing a public monitoring system. Stronger penalties and disciplinary actions must be applied to regulated health professionals who violate standards and legislation.

The PPAO recommends that HPRAC promote public awareness about the role of the Colleges, the complaint process and accountability. A support service should be provided for consumers during the complaint process. A regional complaint process may be more effective to ensure that RHPA becomes a more effective mechanism for the maintenance and promotion of quality care and should be considered.

The PPAO recommends that HPRAC facilitate the adoption of best practices across the regulatory Colleges of measures such as that found in the College of Nurses Participative Resolution Programme. To improve this programme, an outside mediator is recommended to ensure impartiality.

The PPAO recommends that HPRAC develop additional mechanisms to supplement Quality Assurance programs. Entry to practice guidelines, for example, could be utilised in a licence renewal system on a predetermined schedule.

We recommend that HPRAC discuss with Colleges the issues associated with regionalization and accessibility to those they serve (both public and members). Investigations could be completed in a more timely and user friendly fashion using a regional model of complaint investigation and resolution.

Section III - Accountability
The PPAO recommends that all Colleges be required to report publicly on the number of complaints received, the number of complaints that were not taken forward, the reasons why complaints were dismissed, and the period of time taken to discharge the complaint through to the appeal process, if required.

The PPAO recommends that in cases of jurisdictional transfers (e.g., between provinces or between countries), it must be a requirement under the RHPA for Colleges to consider applicants’ registration standing in former jurisdictions (i.e., from which they wish to transfer to Ontario). Such scrutiny must extend back to date of entry into practice. In order to facilitate this process we recommend that Colleges be required to enter into cross-jurisdictional agreements to share "register" information.

The PPAO recommends stronger requirements on Colleges to educate members about standards of practice and to monitor members’ compliance with standards of practice. Colleges must also have effective mechanisms to test members’ competence and capacity with respect to their practice. For example, there could be mandatory testing of competence every 3 years and of capacity every year. The time frames and extent of testing could be based on the profession and whether they have any controlled acts in their scope of practice or whether they carry out any delegated controlled acts.

The PPAO recommends that Colleges issue a report card for their members to post in a conspicuous place in their place of practice. The report card must be in the language(s) of the member’s patients and directed to their level of understanding so that they clearly understand its contents. The phone number of the College must be on the report card with a message that the patients can call that number to lodge a complaint.

The PPAO recommends that the RHPA be improved through the use a stronger language in Section 5, to ensure that systematic and pro-active monitoring can be carried out to determine the manner in which a Council or a College is carrying out its mandate under the RHPA. Language can be improved through the use of the phrase "The Minister shall" rather than "The Minister may" in Section 5.

The PPAO recommends that the RHPA contain a mechanism for ongoing and systematic monitoring and evaluation by a third party, independent of both the Colleges and the Ministry. These measure are necessary to ensure that Colleges and their members are serving and protecting the public interest and to ensure that they remain accountable to individual patients, clients and the public at large.

The PPAO recommends that, in order to meet the requirement of a College "to serve and protect the public interest", that the Council and Committees of a College must either be exclusively or substantially comprised of public members. As well, public members must chair the Council and Committees. If the Council is not exclusively composed of public members, then only a majority of the public members of a Council shall constitute a quorum.

The PPAO recommends that the RHPA be amended to set out the expected qualifications of public members. The RHPA must also set out a responsibility on the Minister to inquire into how the Ministry recruits and recommends public members to the LGC for appointment. In addition, we recommend that the RHPA be amended to contain a provision for a third party to monitor this aspect.

The PPAO recommends that the RHPA be amended to provide that hearings must take place in locations that are geographically accessible to all who are parties to the hearings. Where a College finds a professional member to be guilty of the allegations, the professional member must be required to pay the costs of the complainant. This is in addition to the current requirement under the RHPA that the member pay the College’s legal costs and expenses and other costs incurred in the investigation of and hearing the complaint. This recommendation would also be consistent with the provision under the RHPA that a College may recover from a member the cost of therapy or counseling.

The PPAO recommends that the legislated timeframes under the RHPA for both College’s and the Board be monitored and enforced by a third party. Colleges and the Board must be required to have the resources in place to dispose of complaints within the legislated time frames.

The PPAO recommends an amendment to the time frame for a complainant member to ask for a review of the findings of a panel to at least 60 days from the current 30 days. This should also apply to the Board’s notice to the parties of its intentions not to proceed with a review. [Sec 30(2)].

The PPAO recommends that measures be developed to ensure stronger accountability for the Board. The current annual reporting to the Minister about its activities is not sufficient.

The PPAO recommends that members who contravene any section of the Act and the regulations, upon conviction, must be responsible for paying the fine themselves.

Section IV - Efficiency
The PPAO recommends that current administrative requirements should be simplified in a manner that enhances and does not compromise standards of practice and conduct, nor the mandatory patient relations and quality assurance programs.

The PPAO recommends that patients who do not live in downtown Toronto should not be burdened with the high costs of taking complaint through the discipline process. Better regional access should be created.

The PPAO recommends that collaboration between (or merger of) Colleges should not compromise patient confidentiality.

The PPAO recommends that alternative dispute resolution (ADR) should be incorporated in a manner that does not compromise the protection of the public.

The PPAO recommends that even where a profession has little contact with patients, those patients should be given the protection of a Patient Relations program.

The PPAO recommends that the disposal of a complaint within 120 days should be monitored and enforced.

The PPAO recommends that in order to provide clarity to the public and College members, RHPA amendments must be completed on a timely basis.

Section V - Flexibility
Colleges must take steps to prepare for the move to community-based provision of health services, to ensure that effective systems are in place to protect patients.

Section VI – Fairness
Costs to, and geographic isolation, of complainants must be addressed, in order to ensure patients’ equitable access to the complaints process.

Each College must be held accountable for any failure to abide by the time limits set out in the RHPA.

Colleges must use alternate dispute resolution (ADR) fairly, and not for the purpose of providing members immunity from public scrutiny.

Colleges should work with other jurisdictions to ensure that any member who posed has proven to be a risk to the public is precluded from licensed in Ontario.

With consultation, criteria should be developed as to what constitutes a frivolous and vexatious complaint.

A fund should be created to compensate those who have been harmed by a member in the course of receiving health care.

Quality assurance must be pursued vigorously, to achieve better standards of patient care.

Submission of the Psychiatric Patient Advocate Office to the Health Professions Regulatory Advisory Council
The Psychiatric Patient Advocate Office (PPAO), a quasi-independent program of the Ministry of Health since 1983, provides advocacy and rights protection services to patients in the provincial psychiatric hospitals and the newly established Centre for Addiction and Mental Health Services in Toronto (formerly the Queen Street Mental Health Centre). The PPAO works to ensure that patients are treated with dignity and respect, that their legislated rights and entitlements are upheld at all times, and that they are actively involved in all decisions affecting their life, care and treatment. We act on the instructions of patients who have concerns about their care and treatment in the hospital. Periodically we have assisted clients who believe a nurse of physician has behaved unprofessionally, and who have chosen to complain to the appropriate College. The PPAO values a patient’s right to make informed choices, to self advocate, to be autonomous and to participate fully in society.

The clients served by the PPAO are among the most vulnerable Ontarians. They may be vulnerable because of the severity of their illness or the length of time they have resided in an institution. As well, they may be more dependent upon health professionals in an ongoing fashion than many other community members. In addition to vulnerability, as a result of the stigma associated with mental illness, they may encounter barriers in bringing forward complaints. We believe that all Ontarians must act to ensure an exemplary level of professionalism exists amongst health care providers. Further, we must maintain a system of practitioner accountability that adheres to high standards. Poor professional practice can never be eliminated entirely, but we can, through this review, ensure that the legislation is improved to provide for greater effectiveness, efficiency, flexibility and fairness. As a quasi-independent program, the PPAO does not speak on behalf of the Ministry of Health.

The PPAO has reviewed Weighing the Balance in detail. Our remarks and recommendations for each section will follow. We wish to begin, however, by detailing the systemic barriers encountered by our clients in their attempts to avail themselves of the protections offered through the Regulated Health Professions Act (RHPA).

Complaints Process
Many patients believe that the Colleges do not respond in a timely manner to their complaint and that it takes too long for a matter to be investigated and resolved. As a result, many patients either do not make the initial complaint or decide to abandon their complaint prior to resolution. At times this happens by default as the patient may be discharged from hospital and forgets to advise the College of a forwarding address. Complexity of the complaints process can be a barrier as patients may not believe that they can sustain the resources or energy to pursue a complaint through a process that can take up to one year or longer to resolve. Patients would appreciate a complaints resolution system that is simplified, timely and which produces an outcome in a relatively short period of time.

On occasion patients have mentioned that they receive a formal and institutional response to their complaint which includes "lots of paperwork and forms" to complete to support their complaint. There is often a sense that the complaints process will become adversarial instead of working towards finding a resolution that is satisfactory to all parties involved. Many patients want nothing other than a simple apology or to have the College hear what impact the conduct of the health practitioner has had on them personally. Complaints to the College are seldom based on a need by the patient to "get even or to exact revenge" on a health practitioner for alleged wrongdoing but rather on a desire to make things better for other patients in the future.

Communication and Privacy
Another barrier to access involves receiving and sending mail and messages. In the hospital environment patients have very little privacy and since mail is received by the staff they usually see the type of correspondence that the patient is receiving. A patient recently remarked that the Colleges should send correspondence to institutionalized patients in plain envelopes so that there is no identifying information on the front of the envelope.

Access to a telephone is often limited for patients as they may not have the privacy to make a call, may not have a telephone available to make a toll free call or may not be able to use the telephone due to personal limitations. People who are hospitalized are very difficult to reach by telephone, which may result in many messages being left with staff for the patient. This may in fact lead the staff to conclude or guess the nature of the contact with that College. The result of this is that the patient may experience intimidation in relation to proceeding with their complaint.

The lack of access by most institutionalized patients to the latest technology serves as a barrier in facilitating the complaints process. Many patients do not have access to computers to get additional information about the complaints process or to type their letters of complaint to the College. As a result, the initial letter of complaint may be difficult to read or understand by the person who receives it, and this could undermine the legitimacy or credibility of the patient’s complaint.

In general, the lack of privacy offered an individual while hospitalized makes it difficult for patients to proceed with a complaint about staff who are currently providing them their care; patients often remark that "the walls have ears". The perception is that staff members always seem to know what is going on or that other patients talk publicly about the patients’ complaint. The resulting lack of privacy also undermines the individual’s right to confidentiality and to a discreet relationship with the College.

Accessibility
The Colleges need to continuously monitor their complaint processes to ensure there are no barriers to access, which may infringe on a person’s ability to make a complaint. Perhaps English is not the first language of the patient or perhaps there is a cognitive impairment, which affects their ability to understand the complaints process or the complexities of it. This individual assessment of special needs should be clearly documented on the complainant’s file so that everyone who has contact with the patient is aware of their specific barriers.

Many patients who have been institutionalized for long periods of time will choose not to proceed with a complaint against a health professional. They may not complain for fear of reprisal or because they believe that the practitioner "knows best" and that the practitioner will always act in their best interest. Further, they may not complain about abusive behavior because the very nature of their long-term living arrangements ensures that most of their relationships are comprised of those based upon power imbalances. Colleges should ensure that these patients in particular are aware of their rights and that they are assisted in exercising them.

Patients with serious and persistent mental illness may become homeless after discharge or else may move frequently, making it difficult for the College to maintain contact with them and to follow through with the complaints process. Often patients forget to advise the College of their forwarding address or to leave them with a contact name and telephone number. Such patients, because of their marginal status, may be more vulnerable to abuse because of the perception on the part of an abuser that they can act with impunity.

Literacy issues and the ability to express or articulate a complaint is often a concern for the patients the PPAO serves. Some patients are most comfortable making a complaint to the College if they have the assistance of an advocate, a family member or a friend to help with preparing a complaint. Where a College identifies that a patient may have special needs, the College must provide assistance to them in order to facilitate the complaints process.

Resources
In small or rural communities patients are often afraid to complain about a health practitioner because there may be nobody else available to provide them with service, should they need support, care or treatment. In effect, this silences the individual from making a complaint and may keep them in a situation where the therapeutic relationship is negative and not meeting their needs. This situation creates an inequity in the ability of all Ontarians to access the protections offered by the RHPA.

Patients have also verbalized that if they make a complaint to a regulated College they may be labeled as a "troublemaker". There is always fear that this could impact on the level of service that they receive or that other health practitioners could choose not to provide them with service as they are labeled a "chronic complainer." Again, this is amplified in small, northern and rural communities where there may be little choice in who provides residents with their care and treatment.

Patients have mentioned the unequal access to resources available to them when making a complaint to a College. They often believe that the health practitioner has access to a lawyer for legal advice or representation and to liability insurance while they may have to represent themselves. They may not even be able to afford to get a formal legal opinion with respect to the possibility of success in pursuing their complaint. They also believe that a health practitioner, in general, has greater access to research and other resources in preparing to defend their actions before the College.

A patient recently remarked that the Alternative Dispute Resolution (ADR) process offered by the College was an attempt to "silence their complaint." The Colleges need to spend greater time and resources on educating patients about the dispute resolution options available to them and the reasons for each. This particular patient believed that the College did not want to investigate their member and as such wanted to have their complaint dealt with in a less formal and "unreported" manner.

Education and Information
There is a general lack of education and awareness on the scope of issues that the public can complain about to a College regulated under the RHPA. Specifically, there is little information made available by the Colleges to institutionalized patients on how to contact a specific College, how to make a complaint or about the complaints process in general. As a result, patients don’t even know whom to contact should they have a complaint about a regulated health practitioner.

Patients also point to the lack of education, awareness or understanding of the standards of practice for the various health practitioners and the patient’s rights that the specific College recognizes. Standards of conduct and College ethics should be readily available and easily accessible to all patients in the province of Ontario. Further, practitioners must be fully educated with respect to the standards of conduct and standards of practice adopted by their College.

Patient’s Lived Experience
Patients are acutely aware of the power imbalances that exist between them and the health practitioners who provide their care and about whom the patient may complain. These imbalances can intimidate a patient into not making a complaint for fear of reprisal. The Colleges need to reassure patients that their complaints processes will work to even these imbalances and to provide procedural justice for them.

Patients also find it intimidating to complain about a health practitioner or to take on a large resource-rich organization. They believe that they will be "swallowed up" by the organization and that the resource imbalance is so great that they will not be able to survive the complaints process. Patient’s beliefs and understanding of fairness, justice and right and wrong may not be congruent with that of the Colleges. What complainants perceive to be injustices may be explained in terminology that is not familiar to them or which appears to "professionalize" their complaint. Many patients would be happy with a simple "I’m sorry" instead of a lengthy investigative process followed by a decision in which they may have no interest. Standards of administrative fairness must be clear, concise and up front for all parties from the outset.

Some patients have the perception that the College could be biased in favour of their member. The belief arises because each College reviews complaints against its own members. There is also a perception that the College does not "make it easy" to complain about its members. This belief is partly based on the complexity of the complaints process, the length of time that it takes to resolve a matter and the amount of paperwork generated in order to follow the process from beginning to end.

Patients find that the complaints process is not easily understood and they are often excluded from discussion of the complaint they have made. However, this perception may exist because of the geographical distance between the College, the complainant and the respondent and the fact that the parties do not meet face to face until very late in the process. Perhaps the Colleges should provide education to patients around the checks and balances in the process that articulate the fairness and procedural justice standards.

Attitudes
The attitudinal response of hospital staff often has a direct bearing on whether the patient proceeds with a complaint or not. Patients have reported that when they advised staff that they are making a complaint to a College the staff remarked that "complaining is a sign of your illness." As a result, they believe that there is something wrong with pursuing a process that is available to them because of the reaction of the staff.

Patients have a fear that if the College finds out that they have a mental illness that they will not be believed. They fear that the College or the health practitioner whom they complained about will use their mental illness to question the credibility of their complaint, their ability to recall detailed information or the allegation itself. Many of these attitudes are linked to the stigma attached to mental illness. Colleges must do more to educate their members, particularly those involved in the complaints process, to ensure a complaints process that is free of stigma and the pre-judgements that occur as a result.

Section I - Protection From Harm

Are RHPA provisions strong enough and specific enough to provide regulatory Colleges with the tools they need to ensure that individual patients/clients and the general public are sufficiently protected from harm?
The provisions contained in the RHPA are not sufficient to protect patients/clients and the general public from harm. On balance the PPAO agrees that each College must be allowed some flexibility in order to deal with the volume of complaints received about members’ practices. However, we are concerned that too much latitude exists to ensure sufficient protection for patients/clients and the general public. We are aware that some Colleges, for example the College of Physicians and Surgeons, allow members accused of professional misconduct to continue to practice if they agree to cease the conduct which brought them to the College’s attention. There have been reports that, where this has happened, members simply continue the behavior.

Further, there have also been reports that members accused of professional misconduct or malpractice have the ability to broker deals which allow them to take responsibility for a lesser action and so avoid a public disciplinary hearing. Where this occurs, patients/clients and the general public will not have access to information about individual practitioners who must be treated with caution. Therefore the ability of a patient/client to make an informed decision about who will provide their health care will be impeded. Colleges simply have too much latitude in dealing with their members. Further, the inability to hold health professionals accountable relates, in part, to the self-governing nature of these professions. Public monitoring rather than self-monitoring will ensure greater accountability and address the conflict of interest inherent in self-governance.

There have been several recent media reports highlighting the length of time taken by some Colleges to investigate and resolve complaints of professional misconduct, particularly with reference to cases of alleged sexual assault and abuse. Implementation of the RHPA was to ensure zero tolerance of sexual impropriety between health professionals and health care recipients. The standard of zero tolerance must be met and the current inefficient and ineffective disciplinary process must be strengthened.

Have Colleges done a good job of implementing RHPA provisions for protecting individual patients/clients and the public from harm? If not, what general improvements in implementation are needed?
The rules established with respect to the ability of the Colleges to dismiss complaints they regard as frivolous and vexatious may be unfair to complainants. Although an appeal mechanism exists, our understanding is that the Health Professions Board, the body to which appeals are addressed, is under-resourced and that there is an unreasonable delay in having an appeal heard.

Does the use of alternate dispute resolution (ADR) mechanisms have a deterrent effect and serve to protect the public from harm? If so, under what circumstances? Should ADR settlements be part of the public record? Should there be statutory provisions in the RHPA for Alternate Dispute Resolution?
Since the RHPA came into force it is our understanding that the College of Physicians and Surgeons of Ontario, among other Colleges, has instituted the use of alternate dispute resolution (ADR) in addressing complaints against health professionals. ADR is a mechanism that works very well where disputants have relatively equal power or position or where disputes are relatively minor. Neighborhood disputes are prime examples of situations where ADR can function to resolve issues and ensure harmony between individuals who will continue to reside adjacent to one another. The use of ADR can ensure resolution of financial disputes as well. However, our understanding is that this mechanism is not necessarily appropriate where abuse may have occurred.

In our opinion, allowing the use of ADR where sexual abuse or assault has occurred serves to minimize the seriousness of the complaint brought forward and flies in the face of the zero tolerance approach to sex between health professionals and patients.

Does the current list of controlled acts adequately cover the full range of procedures that can cause significant risk of harm? Should any procedures be added to or removed from the list of controlled acts?
We are concerned that counseling is excluded from the list of controlled acts identified in the RHPA. The exchange between a counselor and a recipient of counseling services is no less sensitive than communicating to an individual or his or her personal representative a diagnosis (which is a controlled act). Members of specific colleges, such as the College of Physicians and Surgeons of Ontario are permitted to bill the Ontario Health Insurance Plan (OHIP) for providing counseling or psychotherapy services. Where counseling or psychotherapy is being provided by a regulated health professional for the purposes of treating an emotional or psychiatric illness, such counseling or psychotherapy should be considered to be a controlled act within the meaning of the RHPA.

Do health professions without controlled acts need to be regulated? If so, should they be regulated under the RHPA or through alternate forms of regulation?
Since the RHPA was passed a new regulatory college has been established as the College of Social Workers and Social Service Workers. In keeping with the role of regulatory colleges, this new College requires that members be subject to a code of ethics and standards of practice. Even though members of this College do not perform acts considered to be controlled acts, they recognize and support the objective of regulation to advance and protect the public interest. Members of this College have recognized that there is significant risk of harm to the public if services performed by university graduate Social Workers and community college graduate Social Service Workers were provided by an unqualified individual. Including members of this College as a profession regulated under the RHPA is a logical next step and would enhance public protection and advance the public interest.

The PPAO is concerned that psychotherapists are not regulated, nor are there accepted standards of practice or conduct. There is neither agreement over who may practice as a psychotherapist nor over the title a person may use. This situation, where psychotherapists are unregulated, may lead to circumstances where the public will be at risk for abuse and exploitation. For example, a member of a regulated College may lose their license to practice due to sexual abuse of a patient. There is no barrier to that member moving to another community and advertising services as a psychotherapist. In general, the functions of unregulated practitioners often overlap with those performed by regulated professionals. We urge HPRAC to ensure that the public interest is safeguarded through measures to prevent this type of scenario. In its deliberations regarding the regulation of health professionals, HPRAC must recommend that the government of Ontario extend regulation to those practicing psychotherapy in Ontario.

Section I – Recommendations
The PPAO recommends the Health Profession Regulatory Advisory Council (HPRAC) to advise the Minister of Health to implement public monitoring of health professional activities in Colleges regulated under the RHPA.

Section II – Quality of Care

Does the RHPA include provisions that are strong enough and specific enough to provide regulatory Colleges with the tools they need to ensure that their members provide high quality care? If not, what additional provisions need to be included in the Act?
The provisions contained in the RHPA which ensure that health professionals provide high quality care are difficult to define and require further specifics. For example, one provision advises professionals to ensure they are "taking the time to warn patients/clients of possible side effects". Such a statement does not suggest that it is a mandatory requirement, detailed in Section 11 of the Health Care Consent Act (HCCA), to provide information to a person about the nature of a treatment, the expected benefits, risks and side effects, about possible alternatives and about the likely consequences of not having the treatment. Further, what exactly is good judgement? How does one define "taking care to correctly diagnose?" Sexual impropriety is another example of a difficult allegation to investigate. These provisions are clearly subjective and require further definitions, clearly stated, in order to allay misperceptions.

Further, we feel there are not sufficient oversights to ensure that Colleges are monitored and evaluated on their enforcement of the provisions ensuring high quality care. HPRAC must consider how to enact measures to provide this oversight. We must also be assured that, when necessary, Colleges are assigning sufficient penalties when such provisions are violated.

Which RHPA provisions have empowered Colleges to maintain and promote quality care? Which if any provisions are barriers to doing so? What changes or improvements would you suggest?
From the perspective of the PPAO the main provisions that empower Colleges to maintain and promote quality care are those contained in the Entry to Practice Provisions, Quality Assurance Programmes, Quality Assurance Committees, Standards of Practice and Clinical Guidelines and Competency Reviews. However, it is unclear as to the mechanisms to evaluate or monitor the activities of Colleges and to ensure that Ontarians receive high quality care.

The composition of Quality Assurance Committees includes public members; however, Colleges appoint a minimal number of public members. For example, the College of Nurses has 11 members of whom 4 are public members and the College of Physicians and Surgeons has 7 members of whom 3 are public members. Public representation does not appear to be adequate and appears to support power imbalances. In self-monitoring situations it is unlikely that professionals can be held accountable. The development of public monitoring Committees, with College members as ex officio for consultative purposes, will alleviate conflicts of interest. From a public perception, the development of public-monitoring Committees would assist the Colleges to be viewed as more accountable.

The general public is not fully informed of the role of the Colleges. Colleges must become proactive in educational efforts particularly about standards, complaint processes and alternative recourses available to complainants. Further, the public would be better served were HPRAC to recommend that accountability requirements are strengthened and stronger penalties/disciplinary actions are imposed to those who violate standards and legislation (e.g. HCCA).

In practice, have the Colleges been able to implement RHPA provisions for the maintenance and promotion of quality care? If not, what difficulties have they encountered?
Apparently the provisions specified by RHPA have not ensured the promotion and maintenance of quality of care for vulnerable patients. People receive care from regulated health professionals in a variety of settings. At times, because of the setting in which care is received, quality of care is not assured. For example, in a situation where a nurse on a psychiatric unit has been subject to complaints by a patient, the nurse continues to be employed on the unit while the College investigates the complaints. The patient who lodged these complaints must continue to receive care on the same unit. We have been advised from some of our clients that they have overheard other nurses gossip about a complaint and the complainant. We are aware, as well, of a case where the complainant withdrew a complaint as a result of receiving threatening phone calls at home.

The options available to patients who may wish to invoke their right to complain about their treatment at the hands of a health professional are disproportionate depending upon where the patient resides. In the North, as in several rural communities in the province, it is very difficult for an individual to complain about their physician. There may be no other physician available. Even in larger Northern centres such as Thunder Bay, there are lengthy waiting lists for persons trying to receive care from a family physician. Within the psychiatric system there are considerably fewer options for prospective patients. We consider that this is a significant barrier to the maintenance and promotion of quality of care.

When an individual, having weighed the consequences of such an action, resolves to make a complaint about a regulated health professional, they do so under a disadvantage in many respects. Where a complainant decides to go forward, they will find that their complaint is dealt with centrally in Toronto. This can be very stressful and overwhelming. First, the complainants will find themselves discussing a serious concern with a stranger over the phone. Perhaps then, as the complaint moves forward, they will then be required to travel to Toronto, alone, at great expense. Finally, the complainant may face the loss of their health care practitioner with few or no alternatives in the local community.

The above examples illustrate that the existing provisions of the RHPA are not sufficient to promote or maintain the quality of patient care. On balance, a significant number of Ontarians are disadvantaged when it comes to accessing good care or in using complaint mechanisms when they have been failed by their health practitioner. The promotion of quality care should include consumers being informed and encouraged to consult with the Colleges on sensitive issues without fear or threat of adverse consequences. A regional complaint process and the provision of supportive services to the complainant may ensure that RHPA becomes a more effective mechanism for the maintenance and promotion of quality care.

Have Colleges done a good job implementing RHPA provisions for the maintenance and promotion of quality care? If so, what kinds of initiatives or models of practice have been particularly effective? If not, what general improvements in implementation do you suggest?
The College of Nurses has developed a comprehensive Quality Assurance (QA) Program consisting of three parts: reflective practice; practice review; and, practice setting consultation. Nurses are responsible for participating in a reflective practice exercise at least once a year. This exercise includes a self-assessment, peer feedback, and the implementation of a learning plan. Random audits will be conducted each year through the selection of a specified number of nurses for evaluation related to meeting the QA Program requirements. The College has also implemented a Participative Resolution Program. This is a process whereby parties to a complaint actively work together to resolve the concerns which have been raised. Such a process is especially beneficial in the therapeutic interest of the client. The PPAO supports the College of Nurses in their approach to the promotion of quality care although the addition of an outside mediator would strengthen the effectiveness of this process. Other Colleges might benefit from implementing similar best practices.

The RHPA requires each College to establish a program to assure the quality of practice of the profession and to promote continuing competence among its members. Is this requirement of Colleges sufficient to promote quality care? Do Colleges need additional mechanisms to supplement Quality Assurance programs in order to maintain and promote quality care?
The promotion of quality care is an ongoing process requiring ongoing activities among professionals. Numerous incidents have been reported in the media regarding negligence of a health practitioner, yet the penalties assigned appear to be minimal or non-existent. There are several avenues for using additional mechanisms to supplement QA programs, for example, entry to practice guidelines could be utilised in a licence renewal system on a predetermined schedule. Colleges may wish to consider annual or biannual reviews similar to that adopted by the College of Nurses.

Should detailed Quality Assurance program requirements be specified in the RHPA, in regulations, in by-laws, or as part of each profession-specific Act?
Each profession has standards and requirements unique to the profession, however, beyond these characteristics, QA requirements should be detailed as part of the RHPA. Incorporating QA requirements within the RHPA will serve to advance and protect the public interest through ensuring continuing competency of individual health professionals. Through the incorporation of detailed QA program requirements in the RHPA we will be assured a fundamental consistency of the core principles of Quality Assurance exists.

Should standards of practice be included in the legislation? Why or why not?
Standards of practice should not be included in legislation. As noted above, each profession has standards and requirements unique to the profession and these standards will evolve over time and reflect current best practises within an individual profession. Incorporating standards within legislation may not allow for the evolution of standards to reflect best practises. Further, incorporating standards in legislation will not ensure adherence to standards. We feel these mechanisms are best situated within individual professional requirements with appropriate compliance mechanisms and oversight to determine that standards are being monitored and enforced. We suggest, however, that standards are developed and circulated widely to ensure broad public understanding of the quality of care they can expect from regulated health professionals.

Are Quality Assurance program assessors able to access all workplaces? If not, what barriers exist and what suggestions do you have for improvements?
The major barrier to the ability of QA program assessors in their access to all workplaces is the geography of the province and the distances between Toronto and other centres. The central location of regulatory Colleges is not user friendly. Financial considerations may deter quality Assurance program assessors from conducting ongoing regular assessments. A regional model could address local issues unique to the area and be less costly.

Section II - Recommendations:
The PPAO recommends that the RHPA contain clearer definitions and guidelines related to the provisions providing Colleges with the tools they need to ensure that their members provide high quality care. We recommend that HPRAC specify the monitoring and evaluative process each College must apply to assure their members are in compliance and that sufficient penalties are assigned when necessary.

Section III - Accountability
Accountability involves setting expectations, delegating authority, joint monitoring, reporting, and corrective action when required. There are several areas where the existing accountability framework does not serve and protect the public interest and where accountability to individual patients, clients and the public at large is not assured. We feel that, in general, the public requires more information about the complaints process, time lines to resolve complaints and the resolution of complaints.

The Colleges have authority, under the RHPA, to establish qualifications for professional registration. Colleges do not have an effective mechanism to check the standing of an applicant who is applying to a College from another jurisdiction. The Colleges’ mechanism to check the applicant’s standing in their respective home jurisdiction is not effective. The Colleges must require a complete history of an applicant’s practice and standing within their home jurisdiction.

The RHPA provides Colleges with the authority to establish standards of practice for the profession. However, Colleges do not have an effective proactive mechanism to monitor members’ compliance with these standards. Colleges mostly rely on complaints from the public. Further, the information on a College register is not readily accessible to the public unless the College is contacted. Patients or clients of a regulated health professional do not receive information on the current standing of the member. Information such as this, on an ongoing basis, could be provided through a College-issued report card posted in a conspicuous place in the regulated health professional’s office or place of practice. The report card could contain information such as the phone number of the College to ensure patients have information about where to call should they have a complaint

Duty and Powers of Minister
Section 3 of the RHPA sets out the duty of the Minister. It provides that:

It is the duty of the Minister to ensure that the health professions are regulated and co-ordinated in the public interest, that appropriate standards of practice are developed and maintained and that individuals have access to services provided by the health professions of their choice and that they are treated with sensitivity and respect in their dealings with health professionals, the Colleges and the Board.

Section 5 sets out the Minister’s powers. The language is worded permissively. "The Minister may, (a) inquire into or require a Council to inquire into the state of practice of a health profession.....; (b) review a Council’s activities and require the Council to provide reports and information:....." The permissive language of Section 5 is a weakness. Although the Act allows the Minister "... to inquire into or require a Council to inquire into ..." there is no mechanism in place to systematically and pro-actively monitor the manner in which a Council or a College is carrying out its mandate under the RHPA. The existing mechanism is reactive and relies on a complaint from the public, who is dissatisfied with either the outcome of decision made by a College or the manner in which the College treated them.

Monitoring
The provisions of the RHPA are not sufficient to ensure adequate monitoring and evaluation of both Colleges and regulated health professionals. For example, the Patient Relations Programs under the RHPA require that Colleges educate their members and the public about what is, or is not, appropriate professional conduct. Who monitors whether Colleges carry out this mandate, whether the public is satisfied with this type of information, and who evaluates the effectiveness of these educational initiatives? Further there is no oversight to ensure that the Minister, who has responsibility for the administration of the Act, is carrying out her/his responsibilities?

College Councils and Committees
The RHPA provides that a College must have a Council. It also sets out the composition of College Committees (e.g., Complaints Committee). The composition of the Council and the Committees is made up of both professional members and the public. The RHPA also sets out the objects and duties of a College particularly as it relates to the function "to serve and protect the public interest". The public representation on the Council and the Committees is not adequate "to serve and protect the public interest". For example, the RHPA requires that a panel of the Complaints Committee shall be composed of at least three persons, at least one of whom shall be a public member, who is appointed by the Lieutenant Governor in Council (LGC). The public would be best served if the Council and Committees were exclusively comprised of public members who had received the services of the health professionals in question, with professional members or staff of a College to provide expert advice or information to the public members. Alternatively, public members must form a substantial majority of a College Council and Committees.

Public Members
The RHPA provides that public members are appointed by the LGC. The Ministry has a public appointments unit for the screening and recruitment of the public members. There is no mechanism to evaluate the effectiveness of this process. In the absence of this measure we are unable to determine if the screening mechanisms in place are effective and the selection criteria are appropriate and adequate for the purpose of regulating the professions and thus serving the public interest. The RHPA does not provide for the qualifications of public members.

Complaint Investigation and Management
The RHPA provides that Colleges have mechanisms in place to investigate a complaint into a member’s practice. The College, the member against whom allegations have been made, and the complainant are parties to a hearing. All Colleges are located in Toronto. All hearings take place in Toronto, in College offices. A complainant from outside Toronto has difficulty coming to Toronto. Travel and other costs (e.g., legal representation) are prohibitive and therefore serve as barriers for potential complainants to lodge or continue with a complaint. This accentuates the power imbalance between the public and the professional members. These are not consistent with the Minister’s duties, which are set out under the RHPA, "... to ensure that ... individuals ... are treated with sensitivity ... in their dealings with ... the Colleges.."

Timeframes for Disposing of Complaints
Under the RHPA, a panel of a College is required to dispose of a complaint within 120 days. There are similar requirements for the Board. There are reports that the Board and Colleges are not compliant with this requirement. Who monitors or enforces these timeframes?

The RHPA sets a time limit of 30 days for a complainant or professional member to ask for a review of the findings of a panel. This does not afford the complainant adequate time (given that he/she may not have financial assistance and may also be geographically disadvantaged).

Accountability of the Board
There are no mechanisms under the RHPA to facilitate complaints against the Board. For example, the Board may decide that a complaint is frivolous, vexatious, made in bad faith or otherwise an abuse of process, it gives notice to the parties of its intention not proceed with a review and it gives the parties 30 days to respond. Although the Board is required to submit an annual report to the Minister, who monitors the quality of its services?

Fines
The RHPA provides that those who contravene certain sections of the Act are liable to a fine determined in the Act upon conviction. To date, it appears that the few fines which have been assessed against members are quite minimal. If the purpose of fines are to act as a deterrent to professional misconduct, the fines must be substantive.

Section III - Recommendations
The PPAO recommends that all Colleges be required to report publicly on the number of complaints received, the number of complaints that were not taken forward, the reasons why complaints were dismissed, and the period of time taken to discharge the complaint through to the appeal process, if required.

The PPAO recommends that measures be developed to ensure stronger accountability for the Board. The current annual reporting to the Minister about its activities is not sufficient.

The PPAO recommends that members who contravene any section of the Act and the regulations, upon conviction, must be responsible for paying the fine themselves.

Section IV - Efficiency

Have any of the Regulated Health Professions Act (RHPA) requirements been cumbersome or placed excessive demands on Colleges? Could these requirements be simplified or streamlined without compromising the effectiveness of the RHPA?
If it is decided that current administrative requirements are overly cumbersome, simplification would be appropriate. This should be done in a manner that enhances and does not compromise standards of practice and conduct, nor the mandatory patient relations and quality assurance programs.

Have the RHPA provisions placed excessive demands on patients/clients? If so, how can the RHPA better accommodate their needs and requirements?
Our clients tell us that having access to a neutral, accessible complaints mechanism is essential. To that end, the PPAO has recently developed a plain language handbook describing the complaints process under the RHPA. Patients who, because of cost, mental or physical disability, are unable to access the protections offered by the RHPA, remain at risk. For example, many of our clients in the North feel that the cost of travelling to Toronto for a discipline hearing is a real burden. They also express concern about having to make the trip alone, and fear that since there are so few mental health services available in their regions, they must make a choice between filing a complaint and receiving care. For others who are more centrally located, there is still a problem in finding suitable legal representation, and for those who do not qualify for Legal Aid, the prohibitive cost of retaining a lawyer.

Could collaboration between and among Colleges increase their efficiency? Are there any barriers to Colleges sharing resources? If so, what are they?
Provided that it is done at a systems or resources level, collaboration between Colleges could improve efficiency. However, this should never compromise patient confidentiality or the status of a complaint. One possible barrier to Colleges sharing resources might be that appropriate systems for keeping patient confidentiality would have to be initiated. Our clients have expressed concerns that their personal health information is being shared indiscriminately between health care providers, in circumstances where the flow of information does not enhance patient care. Another concern is that any such sharing of information could lead to complaints prematurely being categorized as frivolous and vexatious (for example, where a patient has lodged a complaint against more than one health professional).

Could efficiencies in the system be gained by merging some of the Colleges? If so, what criteria should be used to determine whether mergers should be considered?
The above comments are equally applicable to College mergers. The criteria to be employed in assessing the efficiency of the merger might include whether layers of bureaucracy will disappear, and whether there will be any decrease in service to the public.

Could less costly mechanisms or approaches be used to achieve the RHPA’s desired outcomes? If so, what are they?
Although we do not have specific information on the cost of doing so, an obvious suggestion would be to have one centralized body regulate all of the health professions, with specialized departments (e.g. medicine, nursing) to address the profession-specific needs. Another option would be to have a decentralized system, with more regional discipline hearings.

Use of alternative dispute resolution (ADR) to promote efficiency should not be done at the expense of giving the patients a voice. In commenting about other areas in which ADR has been used, patients have expressed concerns that ADR sounds good in principle, but that impartiality is critical to the process. For example, a mediator who derives his or her livelihood from one College could be construed by some patients as "the College’s" mediator. ADR should also not protect members who have been disciplined from public scrutiny, by removing a layer of transparency.

Are the required timelines for College decisions and appeals feasible?
The automatic review of a College’s failure to dispose of a complaint within 120 days is an appropriate oversight mechanism, however, it is not clear how many extra days that adds to what, to a complainant, must already seem a significant wait. The real question is whether the 120-day limit is routinely met. We often receive calls from our clients and the general public about the management of their complaints. These calls reveal that some cases are not reviewed in a timely manner, such that over a year later, the complainant is still waiting for resolution. It also adds an extra burden on the complainant to have to initiate the process before the Review Board.

Should Colleges whose members have little or no patient/client contact be exempt from having Patient Relations programs?
Exempting colleges whose members have little or no contact with patients from having patient relations programs may improve efficiencies, but it does not address the issue of potential harm to that small number of affected individuals. It is not indicated what constitutes "little contact": Frequency of visits? Duration of visits? Physical contact? Verbal interactions?

Do RHPA provisions regarding public appointments (e.g. quorums, statutory minimums) allow for efficient operation of the College Council?
Quorums and statutory minimums are designed to broaden decision-making; they make it a more transparent process and less of an autocracy. If achieving a quorum or statutory minimum becomes so challenging that a Council cannot meet promptly, it may be time to appoint individuals who are in a better position to fulfil their commitments to serve as members of the Council.

Have provisions of the RHPA and the College-specific Acts been amended with relative ease when necessary?
We have heard that RHPA and College-specific Acts are not being amended on a timely basis by the Ministry of Health. This might occur where a College has issued a directive to its membership that is in direct conflict with the professional misconduct regulation, but the regulation is taking too long to amend. This creates uncertainty for both health professionals and their clients. An example would be the College of Physicians and Surgeons’ directive to its membership on the duty to warn, which until the regulation is changed, would constitute professional misconduct for any member who followed it.

Section IV: Recommendations
The PPAO recommends that current administrative requirements should be simplified in a manner that enhances and does not compromise standards of practice and conduct, nor the mandatory patient relations and quality assurance programs.

The PPAO recommends that collaboration between (or merger of) Colleges should not compromise patient confidentiality.

The PPAO recommends that alternative dispute resolution (ADR) should be incorporated in a manner that does not compromise the protection of the public.

The PPAO recommends that even where a profession has little contact with patients, those patients should be given the protection of a Patient Relations program.

The PPAO recommends that the disposal of a complaint within 120 days should be monitored and enforced.

The PPAO recommends that in order to provide clarity to the public and College members, RHPA amendments must be completed on a timely basis.

Section V - Flexibility

Have provisions in and implementation of the RHPA been flexible enough to respond to changing consumer expectations and needs?
By its own criteria, the services provided by Colleges pose a substantial risk of physical, emotional and mental harm to their patients/clients. Many patients express the view that health professions should be regulated, but not necessarily self-regulated. Some patients also perceive that the profession’s leadership has put its desire to protect its members ahead of the public interest. There have been a number of high profile cases where this was not only suspected, but was confirmed by a College’s failure to discipline a member who was criminally convicted of sexually assaulting his patients.

In practice can regulation of new professions and deregulation of existing health professions be initiated and carried out with ease?
It is difficult to imagine that a profession that has fought to be governed by the RHPA would not lobby successfully to maintain that status. As well, the impression is that the process of becoming regulated under the RHPA is an onerous one.

Does the shift toward more community-based care have implications for the regulatory system?
It is our perception that once more services are provided in the community, there will be fewer supports available to identify those at risk. For example, with a marked increase in homecare services, there is a concern that where a patient is being abused, there will be fewer opportunities for third parties to detect the abuse and assist the patient in contacting the appropriate College. It is imperative that the regulatory system evolves in conjunction with the move to community-based services, to ensure that patients do not feel isolated.

Section V: Recommendation
Colleges must take steps to prepare for the move to community-based provision of health services, to ensure that effective systems are in place to protect patients.

Section VI – Fairness

Have barriers in and implementation of the RHPA been responsive to the barriers faced by diverse and disadvantaged groups in Ontario?
The requirement that complaints be received in writing is problematic to a number of our clients who require assistance in filing complaints, and who may have fewer resources once community-based mental health service models are in place. Our clients routinely require assistance with respect to contacting Colleges, and as to what information must be provided to file a complaint. Costs of travelling to Toronto and of retaining legal counsel are also barriers to those suffering from mental health problems. A few members of the public have remarked that once their mental illness is mentioned (or if they divulge that they are patients of a provincial psychiatric hospital), their complaints are not taken seriously by the Colleges.

Have Colleges implemented the requirements of the RHPA in ways that fully respect the rights and interests of potential members, members, complainants and respondents?
Implementation of a particular program does not guarantee its success. Mandatory programs may look positive on paper, but the more fundamental problems such as stigma can undermine the effective operation of a regulatory program. More effort should be made to assist those who are disadvantaged and who face barriers to access, and to sensitize health professionals as well as those who staff the Colleges about the needs of the patients and public they are supposed to protect.

Are the required timeframes for College decisions/actions fair to all concerned parties?
For a complainant, the timeframes may seem lengthy. However, it is acknowledged that members must have adequate time to prepare their defense. Nonetheless, Colleges must take a firm stand on honouring the timeframes, and must strive to be fair and impartial in dealing with all parties. Elsewhere, we have suggested that specific timeframes for the review of the findings of a panel, once the complaint has been dealt with, be amended.

Does the RHPA provide adequate procedural safeguards, such as checks, balances and appeal provisions?
As discussed in other sections, the complaints procedure can be very frightening for a patient who has placed his or her trust in a health care provider, only to have that trust abused. Further, many of our clients fear that speaking out against a health care provider will lead to further barriers in accessing the care they need. The checks and balances provided by the RHPA may seem onerous to both sides, but are generally adequate. However, the introduction of ADR, while a less adversarial process on its face, should not result in a College member’s immunity from public scrutiny. Further, as we have addressed elsewhere, there may be some types of complaints in which ADR will not be a recommended course of resolution.

Is the process for dealing with complaints sufficiently accessible to the public?
Accessibility remains a problem for our clients. Further public education would be helpful, perhaps in the form of a pamphlet or poster to be made available anywhere where patients interact with members of the Colleges. Language barriers, the requirement that complaints be recorded, and the lack of assistance available to members of the public are all barriers to the process.

Are privacy provisions for complainants and respondents (College members) adequate?
Complainants are concerned that their personal health information will not be adequately protected, and their perception is that the privacy of College members comes first. For example, it is critical that the Colleges work with other jurisdictions to ensure that an individual who has been criminally convicted of an offense involving a patient, found unfit to practice, or disciplined for sexual abuse of a patient, not be allowed to prey on the public here.

From the point of view of fairness for all, are the powers of the Colleges insufficient, adequate or excessive?
In the absence of an oversight mechanism to determine how well Colleges have been fulfilling their obligations it is difficult to determine whether the process is fair. Further, without oversight, it is difficult to determine whether the powers of the Colleges are sufficient for the purposes of regulating and licensing individuals who continue to pose a risk to the public. As we have detailed elsewhere in this submission, we provide services to a very vulnerable group of health consumers who are not always, from their perspective, treated fairly in the process of making complaints.

Have provisions in and implementation of the RHPA provided the public with access to health professions of choice?
Elsewhere in this submission we have raised several issues with respect to public access to the health professions of choice. According to our clients and calls we receive from the public, their perception is that they are left with very few choices of health professions. At times, the lack of access is endemic to a region, often, this lack of access is exacerbated when an individual chooses to proceed with a complaint against a regulated health professional.

Does the complaints and discipline process meet the needs of both complainants and respondents?
No. Again, a barrier to access is the fact that discipline hearings take place in Toronto. Presumably, the health professional is insured for such costs, but the financial burden on a patient who has been abused may preclude that individual from taking a complaint forward.

Is the average wait between the time of a complaint being made and the time of resolution of the complaint too long?
Yes, at least according to some of our clients and the public. Understandably, when they are filing a complaint against a health professional, their faith in the "system" has been shattered. A prolonged wait adds to their anxiety about their own abilities to ever find proper care again.

Is the average wait from the time of appeal and the Health Professions Appeal and Review Board decision too long?
There exists a disproportionate period of time between when a complainant must choose to appeal a decision and when the decision of the appeal is provided. Complainants perception is that the process favours the health professional. If the time between when an appeal is heard and when the decision is releases is lengthy because of resource issues, then, as we have stated elsewhere, there must be sufficient resources in the system to ensure that it is efficient and effective.

Are the appeal mechanisms outlined in the RHPA insufficient, sufficient or excessive?
It is clear that a complaint against a professional may have a tremendous impact on that individual, both personally and professionally. It is not unreasonable that there be appropriate appeal mechanisms in place. The challenge is to streamline these so that they are fair to all sides. The current mechanism is probably sufficient, but efforts must be made to ensure that all parties are kept apprised of the processes. Our clients and the public have stated that sometimes, it is more hassle than it is worth to come forward, particularly where they are already struggling with a mental health problem.

Does the RHPA strike an appropriate balance between the rights/interests of individual patients/clients and the rights/interests of professional members?
It does on paper, but in practice, that is not always the case. Some of our clients and the public perceive that some health professionals are not adhering to the appropriate standards of practice (whether through lack of information, or deliberately), but that patients are left to fend for themselves.

Should the RHPA clearly define criteria for frivolous and vexatious complaints?
Yes. This should be done through consultation with College members, and any groups representing patients and the public interest. Our experience is that, at times, knowledge of the presence of a mental illness at the outset may prejudice a patients’ ability to proceed with a complaint. Such a standard should not be imposed arbitrarily as it may be subject to decision-making based on stigma rather than on the merits of the complaint. Clarity on this issue would assist our clients, and would limit College members from exercising discretion as to what constitutes a frivolous or vexatious complaint.

Should complainants be given party status at discipline hearings?
Yes, if they are seeking party status and it would not be harmful to them. Further, complainants must be kept in the loop with respect to any decision-making about discipline. As we have raised elsewhere in this response, where members are able to broker deals with their Colleges that result in reduced penalties or lesser findings of professional misconduct, complainants are not well served. Providing complainants the option of party status will ensure that they are a party in all aspects of the discipline process.

Is it desirable that thir