Changes To RCDS By-Laws Addressing Transparency Issues - Page 2

What can a dentist do to avoid negative outcomes?

It is essential that in any complaint where a dentist is accused of putting a patient at risk, that the dentist receive specialized legal advice from the outset of the complaint. If you receive legal advice that there is a risk that the fact situation in a complaint could result in a conclusion by the ICRC that a patient was put at risk, then the dentist should consider immediately registering and completing the appropriate course or courses to address the potential finding of a clinical deficiency. If a complaint alleges that a dentist performed a root canal treatment unnecessarily, and caused the patient pain and suffering, then the best approach may be for the dentist to enroll in a course in Endodontics. The RCDS has advised that it is prepared to act as a resource to provide direction to dentists as to which remedial courses to take. In this way, when the matter reaches the ICRC, if the dentist has already taken a course or courses to address a clinical deficiency, then this lessens the risk that the ICRC will order that dentist to take such courses. This, in turn, will reduce the risk that the decision by the ICRC will have to be posted on the Public Register.

It is our opinion that the changes to the By-Law will necessitate a paradigm shift in the way in which dentists address patient complaints. Information posted on the Public Register will be disseminated through social media. It is essential that dentists have competent legal advice from the outset of a complaint, in order to receive direction from an experienced lawyer with respect to whether there is likely to be a finding by the ICRC that a patient was put at risk. If we believe that the fact situation in the complaint creates the possibility that a finding of patient risk will be made, then we will direct our dentist clients to immediately take a course or courses, to lessen the risk that the ICRC will order such courses.

The concept of patient risk will become much more important, and will govern the potential dispositions by the ICRC. Those dentists who have a prior complaint history suggesting previous allegations of clinical deficiencies in a specific area are most at risk. Under the scheme that will be in place after October 1, 2015, a dentist’s prior complaint history may have more serious ramifications than in the past.

Concerns with transparency

It is our opinion that the Ontario Ministry of Health’s transparency initiative ignores the reality that the Regulated Health Professions Act serves two purposes, to protect the public interest, but also to regulate the practice of each profession. It should be understood that in regulating the standards of practice of each health profession, that the health professional must be afforded fairness and natural justice. Recent media coverage with respect to transparency at the Ontario Health Colleges ignores the rights of health professionals to be treated fairly. Not all debates with respect to disclosing complaints should be based solely on arguments focusing on the public interest. The Regulated Health Professions Act, at Section 3 provides in part as follows:

“It is the duty of the Minister to ensure that the health professions are regulated and coordinated in the public interest”.

The case law is clear that the regulation of health professionals must be administered in a manner that provides procedural fairness to the health professional. My concern about the RCDS By-Law amendments is that there will now be significant prejudice to those dentists whose names and complaint particulars must be disclosed on the Public Register. A dentist who has not been convicted of professional misconduct, and has not been afforded an actual hearing, or found guilty of standards of practice misconduct, will still suffer the stigma of his or her name appearing on the Public Register. One of the most devastating consequences for a dentist is to have his or her name appear in the RCDS Dispatch, as a consequence of being convicted of professional misconduct, at a Discipline Hearing. The reputational damage caused by the publicity arising from a misconduct finding is considerable.

The unfortunate reality is that patients will not readily differentiate between a dentist who has been ordered to take courses by the ICRC arising from a complaint, and a dentist who has been convicted of professional misconduct. To members of the public, both dispositions may seem equivalent, both suggesting that the dentist is lacking in competence. Many patients now utilize Google as a method of choosing dentists, and investigating the dentist’s background. Patients have the right to choose the dentist they want to see. Dentistry in the GTA is an extremely competitive business. Information posted on the RCDS Public Register with respect to a dentist’s clinical deficiencies will negatively impact that dentist’s practice. This is most unfortunate, given that the ICRC isn’t technically making a finding of professional misconduct. Yet the stigma from adverse publicity will be as bad as if the dentist was convicted of professional misconduct. Dentists who have a complaint matter at the ICRC are entitled to a limited level of procedural fairness. There is no right to an oral hearing, and there is no right to cross-examine your accuser.

Of all health professionals, it is my opinion that dentists run the greatest risk of facing malicious complaints. This is because of the business of dentistry. Dentists are obliged to have a direct contractual relationship with their patients. Where there is an issue with respect to payment of outstanding fees, patients often complain to avoid having to pay. I have dealt with many unmeritorious complaints against dentists that have been made simply to allow the patient to avoid having to pay an outstanding receivable. It is my opinion that it is unfair for the provincial government to require so called “transparency” without adding procedural safeguards to ensure that the dentists who wish to prove their innocence, have the ability to do so, at a hearing where natural justice rights would be provided.

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Matthew Wilton & Associates | The Law Firm For Professionals