The Inquiries, Complaints and Reports Committee or ICRC is one of seven statutory committees that are part of the Colleges that regulate the health professions in Ontario in accordance with the Regulated Health Professions Act (“RHPA”), including the College of Nurses of Ontario (CNO), the Royal College of Dental Surgeons of Ontario (RCDSO), the College of Dental Hygienists of Ontario (CDHO), the College of Massage Therapists of Ontario (CMTO), or the College of Physiotherapists of Ontario, to name a few.

The ICRC’s mandate is to investigate complaints and Registrar’s reports made to the College about a member, and to decide how the complaint or report is to be resolved.

The ICRC does not make any findings of professional misconduct. It serves a screening function. As a statutory committee, the ICRC’s powers are entirely derived from statute: the RHPA and Health Professions Procedural Code (“Code”). Pursuant to section 26(1) of the Code, the ICRC can refer a member to the Discipline Committee or incapacity proceedings, require a member to be cautioned, or take any action the panel considers appropriate that is not inconsistent with the College’s governing legislation.

Who are the members of an ICRC panel?

Each College’s ICRC is made up of a panel of elected members of the College Council, who are appointed by the Council. The size and composition of the ICRC panels are currently set out in the College’s by-laws. However, once pending amendments to the RHPA come into force the composition of the ICRC will be determined by government regulation.[1] Panels are selected by the chair of the committee. Regardless of size, there must be at least three members on a given panel to achieve quorum, with at least one public member (someone who is not a member of the profession).[2]

When does the ICRC become involved?

The ICRC is the first committee of the College to review most, if not all, member-related[3] concerns that come to the College’s attention. It becomes involved once information about alleged conduct of a health professional comes to the College, for example, because of a complaint or a mandatory report made by an employer about a member.

In particular, section 25 (1) of the Code requires that

“A panel shall be selected by the chair of the Inquiries, Complaints and Reports Committee from among the members of the Committee to investigate a complaint filed with the Registrar regarding the conduct or actions of a member or to consider a report that is made by the Registrar under clause 79 (a).”

How does the ICRC conduct an investigation?

How exactly does the ICRC investigate a complaint or consider a report? If you are wondering what this means in practice, you are not alone. The investigative process can be somewhat mystifying and may vary depending on a number of factors, including the source of where the information came from and the nature of the alleged concerns.

The actual task of requesting and gathering documents and information during a College investigation is not typically performed by the panel members of the ICRC. Rather, this tends to be a delegated task and is usually performed by either a formally appointed investigator or a delegate of the College’s Registrar (often an employee of the College who works in the investigations and resolutions department) in the case of an informal inquiry.

Complaint Investigations: In the case of a complaint to the College about a health professional, the Registrar of the College may formally appoint an investigator with approval of the ICRC pursuant to section 75(1)(c) of the Code. However, a formal appointment of an investigator may not always be required. A more informal inquiry can 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).

Registrar’s Reports: In the case of a Registrar’s report, the investigative process typically commences with the Registrar’s request for a formal appointment of an investigator, as it is a precondition for the ICRC to exercise its powers under s. 26 of the Code. The ICRC’s role is then to approve the appointment of the investigator in accordance with section 75(1)(a) of the Code.

Registrar’s reports are different from – but may be a result of – an employer’s mandatory report about a member. For example, if a concern about a member comes to the College in the form of a mandatory report from an employer and the Registrar has formed a belief based on reasonable and probably grounds that the member has committed an act of professional misconduct or is incompetent, he or she may seek a formal appointment of an investigator.

A formal investigation may also be initiated by the ICRC as a result of a report from the Quality Assurance Committee of the College.

What powers does a College Investigator have?

A formally appointed investigator has broad powers to inquire into and examine the practice of the member to be investigated. An investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters that are relevant to the investigation.

An investigator may also, on the production of his or her appointment, enter at any reasonable time the place of practice of the member and may examine anything found there that is relevant to the investigation. For example, the investigator may attend at a member’s clinic or place of practice, examine records of the member, make copies and/or remove documents or objects. An investigator may also conduct searches under a search warrant.

Formal College investigations are subject to the limits of the Canadian Charter of Rights and Freedoms (Charter) and in particular section 8 of the Charter, which guarantees a person’s right to be secure against unreasonable search and seizure.

Do members have a duty to co-operate?

Yes. It is important to know that members 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 that is relevant to the investigation. A lawyer can assist members in navigating the rights and obligations during a College investigation.

What type of information is usually gathered in an investigation?

During the investigations process, the investigator may request and receive additional information from the complaint from third parties such as clinics, hospitals, or long-term care homes, as well as about their concerns (if these need to be clarified), additional information from an employer, including records relating to a related workplace investigation, relevant records a response and relevant records from the member.

Each College has a slightly different approach to conducting investigations. Some Colleges conduct most of their investigations by written correspondence. Others have a practice to interview the member and other witnesses in the ordinary course during the information gathering stage of the process, while other Colleges do this less frequently. Some Colleges have even used “under cover” investigative methods.

The ICRC – and by extension the College’s investigators – have an obligation to conduct an investigation that is “adequate”. While an investigation does not need to be exhaustive, the Committee must seek to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint or report.

What’s a Registrar’s Report to the ICRC?

The Registrar is required to report the results of an investigation to the ICRC. This report typically contains an investigator’s summary of the information gathered, as well as copies of records, documents and information obtained by the College during the course of the investigation.

The member should receive a copy of the report with the results of the investigation and be given an opportunity to comment on it.

The importance of the member’s Response

A health professional who is the subject of a College investigation must be given an opportunity to respond to the complaint or report. This is a procedural right of the member enshrined in the Code.

The member’s response is an opportunity to advocate for the most favourable outcome for him or her. The written response may be the member’s 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.

Many Colleges advise their members of their right to obtain legal counsel. A lawyer experienced in professional regulation can help draft a response that address necessary points accurately and professionally, while advocating for the most favourable result for the member.

How does the ICRC evaluate a case?

A panel of the ICRC conducts a paper review of the information placed before it, usually consisting of the complaint or report, the Report of the investigation, the member’s response and all available prior decisions involving the member.

The ICRC is not required to hold a hearing and its proceedings are generally closed to the public. It is a misconception that the ICRC will interview the member or reach out to a member for clarifications about her or his responding submissions. While some ICRC panels or the predecessor Complaints Committee may have done so in the past, this practice is no longer typical.

Notably, the panel of the ICRC does not ‘adjudicate’. It does not evaluate credibility or make findings of fact. This means that the ICRC mandate does not include making assessments about ‘who is telling the truth’. The panel can, however, point to inconsistencies in the facts as presented in the materials before it. In the case of ,Armogan v Health Professions Appeal and Review Board, the Divisional Court explained:

“The ICRC performs a screening function. It does not make findings of disputed fact and is not required to resolve every factual dispute through additional investigation or, for that matter, in its reasons. Neither does it make findings of professional misconduct. Rather, it investigates concerns and determines whether they warrant a referral to discipline or other, less intrusive, responses.”

What can the ICRC do?

As noted above, the ICRC’s power – or jurisdiction – is derived from statute and in particular section 26 of the Code. Once the panel has reviewed the written record that before it about a particular case, the penal typically makes a decision 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 against the member;
• 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 out the outcome, the member will be notified about the ICRC decision in writing. Complainants also receive a copy of the ICRC’s decision and reasons.

Can I ask the ICRC to reconsider its decision?

In the ordinary circumstances, no. Once the ICRC has made a decision, it no longer has jurisdiction over the matter. The ICRC cannot reconsider its own decisions.

Can a decision of the ICRC be reviewed?

ICRC decisions relating to a complaint may 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.

The College should notify that parties to the complaint, the member and the complainant, about their right to request a review by the HPARB.

ICRC decisions that relate to a Registrar’s report are not reviewable by the HPARB but may be subject to a judicial review. Neither are decisions to refer a matter to the Discipline Committee for a hearing or incapacity proceedings (Fitness to Practice Committee).

Short time limits may apply for requests to have a decision of the ICRC reviewed by the HPARB or to make an Application for judicial review to the Divisional Court.

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

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

[1] 2017, c. 11, Sched. 5, s. 12.
[2] Regulated Health Professions Act, 1991, R.S.O, 1991, c. 18, Procedural Code, s. 25(3).
[3] The concerns about applicants to the College – individuals who wish to become a member of the College – are handled by the Registration Committee.