Defending Complaints at the College of Occupational Therapists of Ontario

Valerie Wise has been defending professionals, like occupational therapists, facing complaints for almost 30 years.  Often clients will say – if I just explain that I didn’t do it, won’t this complaint go away?

Unfortunately – if the complaint raises serious issues – no.

The complaint process set out in the Regulated Health Professions Act is the same for all health professionals, including occupational therapists.  Other legislation – like the Ontario College of Teachers Act or the Veterinarians Act establishes a similar two-step process.

Inquiries, Complaints and Reports Committee

First, there is a committee that receives and reviews the complaints.  The “complaints committee” (called the Inquiries, Complaints and Reports Committee – or ICRC  - at health Colleges) review paper:  complaints, written responses, reports of investigators, etc.  They do not hear from live witnesses and are not permitted to make “credibility assessments” – ie., determine who is more or less credible or believable.

The function of this committee is a “screening” function.  The question they answer is:  If true, are the allegations serious enough that they should be referred to the Discipline Committee?  If the answer to that question is “yes”, the occupational therapist will be referred to the Discipline Committee for a hearing.

There is a secondary inquiry – whether there is a reasonable prospect that the concerns raised in the complaint could be proven at a discipline hearing.  However, because the ICRC does not hear from live witnesses and does not make determinations of “credibility”, as long as there is some admissible evidence the ICRC will usually refer the matter to the Discipline Committee.

During the Investigation

The scope of the investigation varies, depending on the situation.  An investigator may be appointed, who may interview the complainant, witnesses, and finally the occupational therapist. 

Strategic considerations about how to handle the investigation phase are different with every case, and it is important to work with a lawyer who is experienced and can explain the options, risks, and likely outcomes.

An occupational therapist is not entitled to as many procedural protections during the investigation phase and clients are often surprised by the breadth of the investigatory powers of the College.

What Does a Referral to Discipline Mean?

Because the ICRC of the College simply considers whether the allegations – if true – are serious, an occupational therapist can be referred to the Discipline Committee even if he or she did not commit the act of professional misconduct alleged.

A referral does not mean that the College believes the complainant.  It does not mean that the occupational therapist has “lost” some determination.  It simply means that the allegations are serious and there is some admissible evidence to prove them. 

When a referral is made to discipline, the College issues a “Notice of Hearing”.  The Notice of Hearing sets out the allegations of professional misconduct against the occupational therapist as set out in the professional misconduct regulation under the Occupational Therapy Act.

That Notice of Hearing must be posted on the website of the College of Occupational Therapists of Ontario, often on a page listing upcoming hearings and also with the occupational therapist’s name on the Public Register.

Next Step:  Formal Hearing

There will then be a formal hearing – either contested or uncontested – at which a panel of the Discipline Committee of the College will hear from live witnesses (if contested) or consider an Agreed Statement of Facts (if uncontested).   Ultimately, the panel will decide what if any findings of professional misconduct to make against the occupational therapist and what penalty should flow from those findings.

Legal Advice

Although the steps of the process are the same, the strategic plan to guide the occupational therapist through the process is unique to every situation.  A general explanation as set out above is no substitute for legal advice, specific to your case.

At Wise Health Law, we have the expertise and experience to guide you through your interactions with the College of Occupational Therapists of Ontario.  Every step is strategic, and it is important to retain counsel early.  We will explain your options and assist you in planning, whatever option you choose and however serious the possible outcome.  We will make sure you feel supported and will fight for you.