After the Inquiries Complaints and Reports Committee(“ICRC”) of the College of Nurses of Ontario (CNO) decision about a complaint about a nurse’s conduct or competence, both the nurse and the complainant have a right to request a review of the decision by the Health Professions Appeal and Review Board (“HPARB” or “the Board”), unless the decision was to refer the matter to the Discipline Committee or the Fitness-to-Practice Committee.
Read on to get answers to some
frequently asked questions (FAQs)
about HPARB complaint reviews
for Ontario nurses.
What is the Health Professions Appeal and Review Board?
The HPARB is a specialized independent administrative tribunal. The Board is neither affiliated with the CNO nor Ontario’s Provincial Government. It is the legislated authority to review complaint decisions made by the ICRC.
Reviews of decisions made by the ICRC of all Ontario health regulatory Colleges make up the majority of the Board’s work, although the Board has the power to conduct a variety of other types of reviews and appeals.
What rules apply to Complaint Reviews?
The Health Professions Procedural Code (the “HPPC”), which is a part of the Regulated Health Professions Act (“RHPA”) sets out the procedural requirements and powers of the HPARB in a complaint review. In addition, some provisions of the Statutory Powers Procedure Act (“SPPA”) and the Board’s own Rules of Practice apply to complaint reviews. The ,Board’s Rules of Practice are accessible on the Board’s website.
Is there a time limit to make a request for a Complaint Review?
Yes. Complaint reviews must typically be initiated within 30 days of the date of the ICRC’s decision. Typically, the CNO will advise both the nurse and the complainant of the right to seek a review of the ICRC’s decision by the Board.
Who can request a complaint review?
Both the complainant and the nurse who was the subject of the complaint can request the Board to review the decision of the ICRC. Many complaint reviews are initiated by the complainant in circumstances where they believe that the ICRC’s decision did not take sufficient action. If a complainant requests a review by the Board, the nurse will be considered a respondent.
A nurse may also seek a complaint review. For example, in cases where the ICRC has decided that the nurse is to be cautioned and/or complete a Specified Education and Remediation Program (“SCERP”) the nurse may wish to seek a review of the ICRC’s decision.
The decision of whether or not to proceed with a review should be carefully considered. A professional regulation lawyer can help you determine whether it is a good idea to request a review by the Board.
Do I have a right to legal counsel?
Yes. Both parties to a complaint review may be represented by legal counsel or an agent. It is not uncommon for complainants to self-represent, but many health professionals choose to retain a lawyer.
What issues can the HPARB consider?
When it comes to complaint reviews, the Board’s powers are limited to considering the following two questions or issues:
Did the ICRC conduct an adequate investigation?
Was the ICRC’s decision reasonable?
Based on prior decisions of the Board, “an adequate investigation does not need to be exhaustive. Rather, the ICRC must seek to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint.”
When considering whether a decision of the ICRC was reasonable, the panel of adjudicators of the HPARB will not ask whether it would come to the same decision, but rather whether the decision can reasonably be supported by the information before it and can withstand a somewhat probing examination.
The Board will not consider whether the ICRC’s decision was the “correct” decision or the “best” decision.
What powers does the HPARB have?
In a complaint review, the HPARB may do one of the following:
Confirm all or part of the ICRC decision
Refer the matter back to the ICRC for further consideration and make any recommendations it considers appropriate, or
Substitute its own decision for that of the ICRC (this only happens in very rare cases).
What information and documents with the Board consider?
The Board will consider the ICRC’s written decision, the CNO’s Record of Investigation (frequently referred to as the “ROI”), and the submissions made by the complainant and the nurse. In some cases, the parties might submit additional records that they believe the ICRC ought to have considered but did not. The Board will also consider applicable law, including the relevant legislation and case law.
What to expect during a Complaint Review?
A complaint review may be conducted in person, by video- or teleconference, or in writing.
It is notable that once a complaint review has been requested, it will typically proceed whether or not the complainant, the nurse, and/or their legal representative(s) appear at the hearing.
Hearings are typically presided by three adjudicators of the board. One adjudicator will act as the “Chair”. It is common practice for the Chair of the Board to explain the hearing process and order of proceedings to the parties at the outset of the hearing.
The parties to the review have an opportunity to make submissions on the issues of whether the ICRC’s investigation was adequate and whether its decision was reasonable, with reference to the CNO’s Record of Investigation and any relevant law.
A representative of the CNO will also attend the hearing to answer questions the adjudicators of the Board may have for the College. However, the CNO is not considered a “party” to the review and does not make submissions.
What happens after the Review?
Once the parties have made all of their submissions and the hearing has been completed, the adjudicators will typically “reserve” their decision. This means that the adjudicators will not tell the parties about their decision until some later date.
Decisions of the Board are later released in writing. The written of the Board will include its reasons for the decision. Decisions of the Board are published and publically available on the ,CanLII website. Published HPARB decisions used to be anonymized by referring to the parties by the initials instead of their full names, however, this is no longer the case.
Are there any cost consequences?
The Board does not have the power to order monetary compensation or award legal costs. All parties to a complaint review must bear their own legal costs.
Can I appeal the HPARB’s decision?
HPARB complaint review decisions may be reviewed by the Divisional Court (Superior Court of Justice) on an Application for Judicial Review. A judicial review application must be made within 30 days of the decision. Speak to a lawyer if you are considering a judicial review.
What types of ICRC decisions cannot be reviewed by the HPARB?
There are a number of types of decisions of the ICRC that the HPARB cannot review, these include:
Decisions of the ICRC made following a Registrar’s report and investigation – also referred to as a “section 75 investigation”.
Decisions to refer specific allegations about the nurse’s conduct or competence to the Discipline Committee for a hearing.
Decisions to the nurse to incapacity proceeding by the Fitness-to-Practice Committee.
Interim decisions of the ICRC to suspend a nurse’s certificate of registration (i.e., nursing license) pending a decision whether to refer the matter to the CNO’s Discipline Committee.
Short deadlines apply to most appeal and review requests. If you have received a less than favourable decision from the College, it is always a good idea to consult with a lawyer as soon possible, to understand and preserve your rights and options.
Carina Lentschis an Ontario health lawyer.
She specializes in advocating for health professionals, including in College complaints and investigations, fitness-to-practice, registration, and discipline proceedings, privacy and human rights matters.
Carina shares general information relevant to health professionals and her practice in her blog posts. For legal advice about a specific situation, please contact her directly.
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