How do you avoid complaints to the College of Dental Hygienists of Ontario (CDHO) and what do you do if you receive one?

Over the years, I have spent a significant part of my law career assisting dental professionals, including dental hygienists and dentists. While complaints are best avoided, many health professionals receive one during the course of their careers. Dental hygienists are no exception. What I have learned is that while claims and complaints can be very stressful, many can be resolved without long-term implications.

Avoiding Complaints

To quote Benjamin Franklin, “An ounce of prevention is worth a pound of cure.”

Managing patient expectations and communicating well with patients is important in avoiding potential claims and complaints. Patients who feel less than satisfied with the treatment they have received is may be inclined to make a regulatory complaint against a dental hygienist who attempts to deflect responsibility. Ensuring that your patients feel heard when they raise a concern and offering sympathetic reassurance for their situation may help.

Healthcare professionals who are seen as being nice receive fewer legal claims and complaints.

Where you sense that a patient relationship may be breaking down, reaching out for guidance can be a good idea. A colleague, a mentor, or a practice advisor can be a great resource for pro-active advice on how to best handle a situation. The CDHO has contact information on their website for practice advisors that can provide confidential consultations to dental hygienists who seek assistance with issues that directly or indirectly affect the delivery of safe, competent, ethical dental hygiene care. Another resource is the Ontario Dental Hygienists Association.

If a situation has already gone sour, it is advisable to seek legal advice before contacting your College.

What do you do when you get a CDHO complaint?

Sometimes even your best efforts are not enough. Anyone with a concern about a registered dental hygienist (RDH) or registered restorative dental hygienist (RRDH) can make a complaint to the CDHO.

Although complaints can be stressful, know that you do not need to face the process alone. Contacting your insurance provider or professional association is a good first step. Find out what coverages are in place and whether legal expenses are included. Coverage through the Ontario Dental Hygienists Association often includes coverage for legal fees associated with CHDO disciplinary proceedings. This may include receiving help from a lawyer to respond to a complaint.

Next, educate yourself about the CHDO’s process, the risks, and your legal options. If you believe that you are dealing with a minor concern, do not assume that the College will share your view. Over the years, I have seen relatively minor concerns escalate at Colleges in cases where a dental professional has either not taken the process seriously enough, misunderstood the process, not shown sufficient respect towards the complainant, or submitted an unfortunately worded response. You know what you know, but you don’t always know what you don’t know.

These are some frequently asked questions about how complaints are handled:

Who can make a Complaint?

Basically, anyone. Frequently, complaints come from a current or former client who was dissatisfied with your services. Complaints may also come from co-workers or other members of the public who may have a concern about the conduct or competence of a dental hygienist. Topics of concern can vary widely, from rude demeanor to incompetent or unsafe dental hygiene practices, to accessing or disclosing personal health information without consent, concerns about billing practices, record keeping, dishonesty, or abuse.

When can a Complaint be made?

There is no time limit for making complaints. Sometimes complaints are made shortly after an incident, other times a complainant contacts the College months or even years later. Even if you are no longer practicing and/or have resigned from the CDHO, a complaint may initiate an investigation that will continue if it refers to conduct or competency that took place at a time when you were a member.

What rules apply to CDHO’s handling of Complaints?

The Health Professions Procedural Code (the Code), which is a part of the Regulated Health Professions Act (the RHPA), governs the process of how the CDHO must deal with a complaint. The Code applies to all 26 regulated health care professions in Ontario, including dentists and the Royal College of Dental Surgeons of Ontario (RCDSO). The CHDO’s by-laws are also a source of rules that may apply; for example, relating to what information gets published on the public register and registrant’s profile on the CHDO website.

The College must also comply with the Canadian Charter of Rights and Freedoms (the Charter), human rights legislation, including the Ontario Human Rights Code, and more general administrative law rules, such as principles of procedural fairness.

What constitutes a Complaint?

Not everything shared with the College about a dental hygienist may result in a complaint. Generally speaking, a complaint identifies the dental hygienist and raises a concern about her or his conduct or competence. Concerns may relate to the care provided, the professional relationship, or even “off duty” conduct. The individual who contacts the CDHO must intend for the concerns to be treated as a “complaint”. The Code requires that a complaint must be made in a recorded form. While most complaints are made in writing, other recorded formats are permitted, including audio recordings.

Complaints should be distinguished from a mandatory report, which is typically made by an employer, a former employer, or another member of a regulated health profession according to a statutory reporting obligation. A similar but slightly different process applies to how the CHDO handles mandatory reports.

How will I find out if a complaint has been made about me?

While some individuals tell their dental hygienist in advance about their intention of making a complaint, this is not always the case. If someone makes a complaint about your dental or dental hygiene practice, your College must notify you about the complaint, within 14-days of receiving it. The notice from your College should also advise you of your right to make written submissions, typically within 30 days, and/or whether alternative dispute resolution (ADR) is available. The College should also provide you with a copy of the legislative provisions governing the timely disposal of complaints, and copies of all prior decisions in your file except for decisions that resulted in no further action.

How does the College investigate a complaint?

The Code provides that all complaints to the College must be reviewed by the Inquiries, Complaints and Reports Committee (ICRC). The ICRC is tasked with investigating and reviewing matters that come to the College’s attention about the conduct or competence of a member.

In the case of a complaint, the CHDO’s Registrar may formally appoint an investigator with approval of the ICRC according to section 75(1)(c) of the Code. However, a formal appointment of an investigator may not always be required. A more informal inquiry may be used if sufficient information relating to the issues of the complaint may be gathered with the consent of the individuals to whom the information relates – usually the complainant or their substitute decision-maker (SDM).

The ICRC acts as a screening committee. It is divided into panels comprised of members of the profession and public member(s), who will conduct a written review of the information gathered during the investigation of a complaint, including the member’s response or written submissions. It is a misconception that the panel members of the ICRC will reach to you to seek clarification about your response.

For a more detailed discussion about the role of the ICRC, click here.

What are my obligations?

It is important to know that dental hygienists subject to a College investigation have a duty to co-operate fully with an investigator. It is prohibited to obstruct an investigator or withhold, conceal from the investigator, or destroy anything relevant to the investigation.

How important is my Response?

Important. If you are the subject of a complaint to the CDHO you have a right to make written submissions. Take full advantage of this right. It is your opportunity to advocate for yourself.

The written response may be your single opportunity to comment on the allegations, concerns, and information received by the College. It forms part of the written record upon which the ICRC will make its decision, including whether or not to refer a matter to a hearing before the Discipline Committee. It is often the only record the panel of the ICRC may have in support of the member’s position and interests. However, a poorly drafted response has the potential to make things worse.

The CHDO may advise you of your right to obtain legal counsel. A lawyer experienced in professional regulation can help draft a response that addresses necessary points accurately and professionally while advocating for the most favourable result in your case.

What decisions can the ICRC make?

While the ICRC does not have the ability to make a finding of professional misconduct, it can refer a case to the Discipline Committee, which can make such a finding. In particular, after reviewing and considering a complaint, a panel of the ICRC typically decides to do either or a combination of the following:

• Refer the member to the Discipline Committee for a formal hearing;
• Refer the member to incapacity proceedings (Fitness-to-Practice Committee);
• Require the member to attend before the panel of the ICRC to receive a verbal caution;
• Require the member to enter into an undertaking with the College;
• Require the member to complete a specified continuing education requirement program (SCERP);
• Make recommendations to the member about their practice; or
• Take no further action.

Regardless of the outcome, the dental hygienist will be notified about the ICRC’s decision in writing. Complainants also receive a copy of the ICRC’s decision and reasons.

Can the decision be posted on the CDHO’s website?

Certain decisions of the ICRC are considered public information and the College is required to make a notation about the results on its Public Register, i.e., the CHDO website profile of the registrant who was the subject of the decision. Section 23(2) of the Code and Article 15.6 of the CHDO’s by-laws set out these requirements.

Information that will be posted to the Public Register includes,

• The terms, conditions, and limitations (TLCs) that are in effect on each certificate of registration,
• A notation of every caution that a member has received from a panel of the ICRC,
• Any specified continuing education or remedial programs (SCERP) required by a panel of the ICRC,
• A notation of every matter that has been referred to the Discipline Committee and that has not been finally resolved, including the date of the referral and the status of the hearing before a panel of the Discipline Committee, until the matter has been resolved, and
• A copy of the specified allegations against a member for every matter that has been referred by the ICRC to the Discipline Committee that has not been finally resolved.

Can the ICRC decision be reviewed or appealed?

ICRC decisions that relate to a complaint give rise to a right to have the decision reviewed by the Health Professions Appeal and Review Board (HPARB) unless the decision is to refer the matter to discipline or incapacity proceedings. Both you and the complainant have a right to request such a review. The process for complaint reviews to the HPARB is set out in sections 29-35 of the Code. The HPARB can consider

If you have received a decision from the ICRC that you are less than happy with, speaking with a lawyer practicing in professional regulation can help you in deciding whether or not to pursue a review. While having legal representation is not a requirement for an HPARB review, many healthcare professionals choose to.

Carina Lentsch is an Ontario health lawyer. Her practice focuses on advocating for health professionals in College complaints and investigations, fitness-to-practice, registration, and discipline proceedings, as well as healthcare privacy matters.

She helps registered dental hygienists in matters before the CHDO.

Carina shares general information relevant to her practice in her articles. For legal advice about a specific situation, please contact her directly. To learn more about Carina’s law practice ,click here. You can also subscribe to Carina’s newsletter and follow her on ,Facebook for updates @aclhealthlaw.