Responding to Complaints Before the Ontario College of Pharmacists: A Defence Lawyer’s Perspective
Wednesday, August 21, 2019Lad KucisLitigation, Health LawDisciplinary Hearing, Ontario College of Pharmacists, Pharmacy
As legal counsel for pharmacists, we are regularly asked questions about the complaints process before the Ontario College of Pharmacists (“OCP”).
Although the regulatory framework governing complaint matters is quite extensive, the following is the essential information that pharmacists need to know.
Role of the OCP
At the outset, it is imperative that pharmacists recognize that the mandate of the OCP is to protect the public by ensuring that pharmacists act in accordance with established legislation, standards of practice and codes of ethics. This public protection mandate underlies all actions taken by the OCP.
Responding to a Complaint
If a complaint is filed against a pharmacist, the OCP is required to provide the pharmacist with a copy of the complaint within 14 days.
The pharmacist then has 30 days to respond to the complaint. If a pharmacist requires additional time to prepare the response, they should contact the investigator assigned to the file to request an extension.
In responding to a complaint, it is important to ensure that the response is drafted in a clear and professional manner, addressing each of the concerns in a thorough and reflective manner.
A copy of the response is then provided to the complainant, who is given an opportunity to submit a reply. If the complainant submits a reply, the OCP has the discretion as to whether to provide a copy to the pharmacist for further comment. For example, the OCP may choose to do so in cases where the reply raises issues that were not raised in the complaint.
If the pharmacist has any prior decisions before the OCP, they will also be provided with copies of such cases and will have an opportunity to comment. Any such comments should be made in a submission separate from the response, failing which they will be provided to the complainant.
Ultimately, all of the above documentation and any additional information or records obtained by the investigator are provided to the Inquiries, Complaints and Reports Committee (“ICRC”) for its review. The ICRC is a gatekeeper committee that has the authority to make a wide range of dispositions, the most serious of which is to refer a matter to the Discipline Committee to determine if a pharmacist has committed an act of professional misconduct or is incompetent. If a matter is referred to the Discipline Committee, a notation of that fact is immediately posted on the public register, which is available on the OCP website.
Alternatively, the ICRC may order the imposition of a caution or the completion of a Specified Continuing Education and Remediation Program (“SCERP”). Such orders have become much more serious dispositions in the past few years, as legislative changes now require cautions and SCERPs to be posted on the public register on an indefinite basis.
If the ICRC does not have any significant concerns about the conduct of the pharmacist, it may decide to take no further action or provide recommendations to the pharmacist. Such dispositions are not posted on the public register.
With the exception of matters referred to the Discipline Committee, the ICRC will provide reasons for its decisions, as set out in a Decision and Reasons. This document is provided to both the pharmacist and the complainant.
Both the pharmacist and the complainant have the right to request a review of an ICRC decision to the Health Professions Appeal and Review Board (“HPARB”), which is an independent adjudicative agency. The only ICRC decisions that cannot be reviewed by HPARB are referrals to the Discipline Committee or referrals for incapacity proceedings.
In the past, the vast majority of HPARB reviews were requested by complainants. However, pharmacists are increasingly requesting these types of reviews, as they are seeking to set aside ICRC decisions that have resulted in findings (i.e. cautions and SCERPs) that are now required to be posted on the public register.
The conduct of an HPARB review involves the pharmacist and the complainant (or their respective counsel) making submissions regarding the reasonableness of the ICRC decision and/or the adequacy of its investigation. It is beyond the mandate of HPARB to engage in any other inquiries.
Following the review, HPARB may do one or more of the following:
- confirm all or part of the ICRC’s decision;
- make recommendations to the ICRC;
- require the ICRC to exercise any of its powers, other than to request a Registrar’s investigation.
In view of the potential consequences, it is imperative that pharmacists treat all complaints very seriously and take great care in preparing responses and any other submissions. Given the stakes involved, pharmacists should also strongly consider obtaining assistance from experienced legal counsel to ensure that their interests are being properly protected.
About the Author
Lad Kucis is certified by the Law Society of Ontario as a specialist in health law. As part of his practice, he provides advice and representation to pharmacists and other regulated health professionals regarding the full spectrum of college matters, including complaints, investigations, discipline and appeals/reviews.
He can be contacted at 416.864.3114 or firstname.lastname@example.org.
This article has been prepared for information purposes only and is not intended to be construed as legal advice.