by Victoria Tremblett April 25, 2022 3 min read

The Regulated Health Professions Actrequires each College to establish an Inquiries, Complaints and Reports Committee (ICRC) to investigate complaints and reports to the College regarding the conduct or actions of its members (regulated health professionals).

In conducting an investigation and rendering a decision with respect to a complaint or report to the College, the ICRC owes a duty of procedural fairness to the member under investigation. At a minimum, the member must have an opportunity to respond to the issues under investigation and being considered by the Committee.

In the recent decision of Fakhraie v Saad, 2022 CanLII 11518 (ON HPARB), the Health Review and Appeal Boardheld that the investigation of the ICRC of the Royal College of Dental Surgeons of Ontario was inadequate, as the dentist was not provided notice and an opportunity to respond to one of the issues considered by the Committee.

Decision of the ICRC

In Fakhraie v Saad, the respondent patient, Ms. Saad, filed a complaint with the RCDSO against Dr. Fakhraie, largely in relation to the conduct of Dr. Fakhraie’s office manager, D.M. Ms. Saad complained that when she called Dr. Fakhraie’s dental office to book a hygiene appointment she asked D.M. if her insurance would cover the cost of the appointment, and that D.M. told her it would. However, Ms. Saad was subsequently required to pay for the appointment as her insurance did not pay. Ms. Saad called her insurer who advised her that she was not eligible for coverage for a hygiene appointment for another month. Ms. Saad further complained that D.M. was rude when she suggested that D.M. should have gotten an estimate from the insurance company.

The ICRC investigated the complaint, and Dr. Fakhraie provided a written response to Ms. Saad’s stated concerns. In her response, Dr. Fakhraie explained that Ms. Saad was attending two different dental offices at the same time, which caused confusion with regards to her dental insurance coverage.

While the ICRC was satisfied with Dr. Fakhraie’s response with respect to the insurance and administrative concerns identified by Ms. Saad, they decided to issue a formal caution with respect to a premedication concern they identified in the course of their investigation.

In her response, Dr. Fakhraie stated that she had never personally treated Ms. Saad, as she had only ever attended the dental office for hygiene appointments, and attended a different dental office for any other dental treatments. In the course of the investigation, however, the ICRC noted that Dr. Fakhraie had nonetheless prescribed premedication to Ms. Saad. The Committee expressed concern that Dr. Fakhraie prescribed premedication without personally examining Ms. Saad, and issued a formal caution.

Decision of HPARB

On review the Board acknowledged that while an investigation does not need to be perfect or exhaustive to be adequate, it must at leastcomply with the minimum standards of procedural fairness. The Board continued to explain that:

 The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process appropriate to the statutory, institutional, and social context of the decision.”

In instances where the ICRC identifies new concerns in the course of their investigation, the member must be given notice of these concerns, and be given the opportunity to respond.

If the ICRC had concerns about Dr. Fakhraie’s prescription of the premedication, she ought to have been given notice of and the opportunity to respond to these concerns in the course of the investigation. The Board found the ICRC deprived Dr. Fakhraie of the opportunity to present her case fully and fairly, breaching their duty of procedural fairness.

Accordingly, the Board returned the matter to the ICRC for a new decision following a further and fuller investigation. The further investigation should include, at a minimum, the opportunity for Dr. Fakhraie to make submissions on the new issue pertaining to the prescription of premedication.

 

Note: Our blog does not replace legal advice tailored to your situation. The lawyers at Wise Health Law have years of experience in guiding members through college investigative and disciplinary processes. Please contact us to find out more as we may be able to assist.



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