Changes To RCDS By-Laws Addressing Transparency Issues
The RCDS has recently announced that it will be amending its By-Laws, effective October 1, 2015, to expand the information available to the public on the RCDS’s Public Register. The By-Law amendment follows a request from the Ontario Ministry of Health and Long Term Care for greater transparency at all the health Colleges governed by the Ontario Regulated Health Professions Act (”the RHPA”). The RCDS had already taken steps to change its processes to foster transparency, as part of its commitment to transparency. The By-Law amendment will have a significant impact on the disposition of various categories of patient complaints. The By-Law amendment will require the RCDS to place information concerning complaints against dentists on the Public Register, which the RCDS was previously not obliged to disclose to the public. The Public Register is a repository of information with respect to Ontario dentists, which the RCDS is required to maintain, pursuant to the RHPA.
It is important to keep in mind that patient complaints take a considerable period of time to work their way through the Inquiries, Complaints and Reports Committee (hereinafter “ICRC”) investigation and decision process. From the date a complaint is made, to the date that the ICRC decision is made, can take between 8 to 12 months, or longer. If you are the subject of a patient complaint as of April, 2015, there is a reasonable likelihood that the complaint decision will not be rendered until after October 1, 2015, the date of the By-Law amendment. Even complaints from 2014 may result in an ICRC decision after October 1, 2015. Therefore, if you currently have a patient complaint that is working its way through the RCDS investigation process, you must consider whether the eventual ICRC decision is likely to be rendered after October 1, 2015.
In this age of social media, the information disclosed on the RCDS Public Register may be readily accessible through a Google search, or a cursory visit to the RCDS website. It is important that dentists be aware of the negative consequences of an adverse outcome at the complaints level.
Complaints dispositions prior to Amendment
Until this By-Law amendment, there were essentially three types of resolutions of complaints. The first and best resolution for dentists was that a complaint from a patient would be dismissed by the ICRC, without any criticism of the dentist. This type of complaint disposition did not result in any information being placed on the RCDS Public Register. The dismissal of a complaint, without any action being taken, would ensure that the complaint was kept confidential, and that information concerning the complaint would not be readily accessible to patients searching for information about the dentist.
Prior to the By-Law amendment, the second most common disposition of complaints arose where the ICRC had concerns about the dentist’s clinical skills. These concerns would routinely be addressed by the ICRC proposing a voluntary undertaking to the dentist, to take a course or courses to address the clinical deficiencies identified by the complaint. The RCDS would also impose practice monitoring for 24 months. The majority of ICRC complaint decisions identifying clinical dentistry deficiencies would be resolved through this type of voluntary undertaking. The signing of a voluntary undertaking to take courses and to have practice monitoring did not require such a disposition to be disclosed on the Public Register. Effectively, the resolution of a complaint by the dentist signing a voluntary undertaking ensured that the subject matter of the complaint would be kept confidential.
The third and most serious disposition of a patient complaint by the ICRC, was to refer a matter to the Discipline Committee. Previously, where a complaint had been referred to the Discipline Committee, the RCDS was obliged to disclose a brief summary of each specified allegation, and the anticipated date of the hearing, on the Public Register.
Impact of proposed By-Law amendment
Now, under the proposed By-Law amendment, the RCDS is obliged to disclose a brief summary of each specified allegation, the date of the referral, the status of the discipline hearing, and the Notice of Hearing, which contains a summary of the allegations against the dentist.
The By-Law amendment provides that, where a decision of the ICRC requires that the dentist attend before the ICRC to be cautioned, the following must be posted on the Public Register:
This change in procedure is significant because of social media issues. If a dentist receives an oral caution as a result of an ICRC decision, that oral caution will now be posted on the Public Register, and may be available to any individual who Googles the dentist’s name.
The ICRC will issue a caution to a dentist where the ICRC wishes to deliver a message to the dentist that it does not approve of that dentist’s conduct in a complaint file. In the past, such oral cautions were regularly ordered. The fact that an oral caution, had been issued was not required to be disclosed by the RCDS on the Public Register. After October 1, 2015 the fact that the caution is issued, and the contents of the caution will need to be disclosed. This may result in the ICRC choosing to issue less oral cautions. However, dentists should be aware that if an oral caution is part of a complaint disposition, there will be disclosure on the Public Register.
The second significant amendment provides that if the ICRC orders the dentist to complete a Specified Continuing Education or Remediation Program (commonly known as a SCERP) the RCDS must post on the Public Register a notation of that fact, including a summary of the continuing education or remediation programs. As discussed above, many complaints were previously resolved by the ICRC proposing a voluntary undertaking to the dentist to take specified courses. This practice will no longer continue.
The Toronto Star has characterized the use of voluntary undertakings by the College of Physicians and Surgeons of Ontario as “backroom deals”. It is our impression that the Ontario Health Colleges will be reluctant to use voluntary undertakings in the future in complaint matters. If the ICRC determines that the factual issues addressed by the complaint support a finding that the patient was put at risk, then the ICRC will order clinical courses to be taken by the dentist. The fact that the dentist has been ordered to complete specified courses will now be posted on the Public Register.
These amendments will have a significant impact on those dentists who receive a complaint decision from the ICRC that requires either an oral caution or the completion of SCERP courses. Either of these dispositions by the ICRC will mandate disclosure on the Public Register, and the details will become information that is readily accessible to members of the public. Dentists should be aware that it is not uncommon for the ICRC to order a dentist to take courses, in order to address clinical deficiencies identified by a complaint. It is a frequent outcome at the ICRC. We expect that the ICRC will continue to exercise its right to order dentists to take clinical courses, as a disposition in any given complaint matter.
The third change under the proposed By-Law, is that the RCDS will now be obliged to disclose a brief summary of each specified allegation that has been referred to the Discipline Committee, the date of the referral, the status of the Discipline Hearing, and a copy of the Notice of Hearing, which contains a summary of the allegations against the dentist. This amendment will not have a significant impact upon dentists awaiting a Discipline Hearing. The By-Law amendment requires fuller disclosure than previously required by the RCDS. However, the fact that specified allegations concerning a dentist were being referred to the Discipline Committee, was previously posted on the Public Register.