Unlike other articles on my blog, this is a living document and will be updated as needed to be relevant and accessible. The intent is to provide a comprehensive and accurate guide to pursuing regulatory action against unethical health practitioners. This is not legal advice. This article is constructed from my own research and experience and – while every attempt has been made to ensure accuracy – errors may be present. Please contact me for any corrections. Comments are permitted, but – unlike my other posts – I will not permit trolling or unsubstantiated criticism. Last updated September 15, 2018.
A Brief Introduction to Health Profession Regulation in Canada
Canadian health professionals operate in a privileged marketplace; under various regulatory laws and frameworks, they are granted the ability to offer and advertise services within a prescribed scope of practice. This prevents anyone without the appropriate training or education from offering services as a medical doctor, dentist, nurse, massage therapist, and more. It is a reasonable expectation – for example – that a surgeon has actually attended medical school and has been trained in surgery.
These privileges come with a set of responsibilities that members of health professions must adhere to. The responsibilities are set out by provincial legislation and refined by regulatory authorities that draft and enforce standards of practice using the legal framework as a scaffold to build additional ethical and professional obligations. This includes addressing aspects such as informed patient consent, advertising, medical record keeping, dispensing of drugs, and more. Naturally, the extent and focus of standards vary from profession to profession.
The colleges that maintain these standards are not government agencies. Rather, Canadian provinces have granted the various health professions the right to regulate themselves. There are a number of advantages to this regulatory structure. First, it unburdens the government from the job. Second, it gives the job to those who possess the precise domain knowledge required to ensure that professionals are practicing in a way that is in the best interest of the public. After all, how is a bureaucrat to know what constitutes valid and invalid medical practices? This is the expertise of physicians, not government officials. That’s part of the reasoning, anyway.
While the intent of the self-regulating colleges is to facilitate professional regulation in the interest of the public, this regulatory structure presents a number of challenges. First, professionals who contravene their obligations are not judged by an independent group of arbitrators, but by their own peers. While legislation has attempted to mitigate this concern by permitting the requirement for members of the public to hold positions within regulatory authorities, this certainly does not eliminate the risk of bias.
An additional challenge is posed when it comes to scientific issues. While professionals may possess extensive domain knowledge relevant to their specialization, what happens when this knowledge is antithetical to the scientific and medical literature at large? For example, consider Ontario’s College of Homeopaths. The practice of homeopathy is not only scientifically implausible but remains entirely unsubstantiated by clinical trials. How then, can the College appropriately regulate complaints concerning misleading advertising and ineffective treatments? To address these issues appropriately, the college would have to admit that the entire profession is not distinguishable from health fraud. Of course, the obvious solution is to dissolve the profession via provincial legislature, but the solution is not as clear cut when it comes to professions that offer both legitimate and borderline fraudulent practices.
A further limitation of the regulatory system concerns the balance between proactive and reactive efforts to regulate the industry. The colleges employ a number of proactive measures towards protecting the public; members of the profession must be appropriately educated, registered, and cleared from basic criminal record checks. In many cases, they must submit to ongoing evaluations and engage in continuing education. Unfortunately, for many professions, there is little direct oversight of professional practices once the barriers to entry are overcome. A specific consequence of this includes the spread of misinformation and promotion of phony procedures by fringe practitioners and professions, ultimately endangering the health of Canadians.
This is where you come in.
Though you may not have realized it, public participation is a crucial component of our regulatory system. Whether you have stumbled upon unethical practices through marketing material or have been personally wronged by a health professional, you have the power to initiate a cascade of regulatory events that could help to protect the public at large. Unfortunately, this is no easy task. How is a layperson to know what is a valid and invalid practice? How is a patient to know when they have been a victim of malpractice? Further, how does one make the case to the regulatory authority and go head-to-head against a practitioner and their legal team?
The best approach is undoubtedly to seek legal counsel. If you can afford it, this is the route for you. Unfortunately, legal advice and representation is prohibitively expensive for many of us. If this your limitation, you’re in the right place. While I cannot provide legal or medical advice, the intent of this post is to empower you – the patient, the consumer, the public – to best access and navigate the regulatory mechanisms available to you. This guide covers accessing professional standards, drafting and submitting complaints, performing investigative work and documentation, and proceeding through the complaint process. In addition, if you want to chat or need direct assistance, you can always contact me.
The terminology used in the complaints process is not extensive, but worth including for clarity. Ontario-centric terminology is used for simplicity and due to my own familiarity.
College – A self-regulating, provincial regulatory authority for a given health profession.
Complainant – The member of the public or patient who is submitting a complaint to a regulatory college.
HPARB (Ontario) – Health Professions Appeal and Review Board. This is an independent tribunal that addresses appeals from complaints to the colleges. Other provinces have similar appeal boards.
ICRC (Ontario) – Inquiries, Complaints, and Reports Committee. This is the college-designated committee mandated to investigate complaints submitted to the college and determine their merit. Other provinces have similar committees.
Member – A health practitioner who is registered with a college.
SoP – Standards of Practice. These standards are drafted by a self-regulating health college based on provincial legislation.
Assessing Professional Standards
If you are unclear on what constitutes appropriate practices, you should begin with the SoP of the health professional’s college. All colleges are required to maintain and make available their SoP. A web search of the following form will likely bring you to the right page: <province> college of <profession> standards of practice.
As an example, take a look at the College of Massage Therapists of Ontario’s SoP. Here, they reference the legislation that governs the profession and make available the standards that members (massage therapists, in this case) must adhere to. If you cannot find a standard concerning your particular issue, you may need to consult the legislative framework, which could include profession-specific legislation, or province-wide legislation such as the RHPA in Ontario. Of course, you can always contact the college itself, though I have found some to be less than helpful.
Regardless of a profession’s standards, it is worth noting that there are many issues that are universally enforced. For example, if you are assaulted in any way, this is a serious offence and you should immediately contact the police. Non-criminal issues are less clear-cut, but there are still many prohibited practices that apply to all professions, such as false or misleading advertising.
Additionally, informed consent is universal and patients cannot be deceived in their care. This presents an issue when confronting pseudoscience; is it deceptive when practitioners seem to believe that their pseudoscientific practices are appropriate and present these beliefs as “information“? Ignorance is not an appropriate defense, but situations like these present additional challenges in establishing a practitioner’s duty to facilitate informed consent.
Other issues vary significantly from profession to profession and may require a nuanced examination of the SoPs. Conflicts of interest arise in many forms and what constitutes a conflict of interest in one profession may be acceptable in another. A common issue you may come across is direct sale of products or pharmaceuticals to patients.
The Complaint Process
Provincial legislation ensures that the complaint process is relatively consistent across health professions. The details presented in this section are largely sourced from Ontario’s Registered Health Practitioners Act, but other provinces follow similar complaint processes. Often, legislation and the colleges will stipulate time constraints both for the conclusion of complaints as well as numerous milestones along the way (such as how long a member is granted to submit a response to a complaint). Specific times are excluded here as they vary between jurisdiction.
The process is as follows:
- A complainant submits a complaint to the college.
- The college sends a letter to the complainant acknowledging receipt of the complaint.
- The college will summarize the complaint and send a letter to the complainant requesting a confirmation of the accuracy and an authorization to forward the complaint to the member (practitioner) in question.
- The college will forward their letter detailing the complaint to the member.
- The member has a limited timeline to submit a response to the complaint. The member can respond personally or utilize legal services to respond on their behalf.
- Some colleges will forward the details of the member’s response to the complainant.
- The complainant may now comment on the response from the member to their complaint. Typically, a comment is not required for the complaint to proceed, but this provides an opportunity for the complainant to address the member’s defensive arguments and provide additional evidence if necessary.
- If an additional comment is submitted, the college acknowledges receipt and forwards details to the member. The member now has an opportunity to respond to additional details provided in the comment.
- If the member responds to the comment, the college will forward the details to the complainant. Unless additional information is required from the complainant, the complaint will proceed at this point.
- The complaint is now in the hands of the ICRC (terminology applies in Ontario) who will designate a panel to perform an investigation and determine the merit of the complaint. There are a number of actions that the ICRC may take, which range from dropping the complaint to referring the complaint to a disciplinary panel. You will be notified of the result. The panel will consist of professional members as well as members of the public depending on the province (example).
- Following the conclusion of the complaint process, the results may be appealed by either the complainant or the member. The appeals process involves a submission to a health professions appeal board (HPARB in Ontario).
At any point during the complaint process, the complainant can request that a complaint be withdrawn. However, if the complaint has reached the investigatory stage, the investigation will often proceed.
For an alternative resource on this process, check out the guide published by the College of Physicians and Surgeons of British Columbia for filing complaints; while many aspects are college- and province-specific, they provide a detailed overview of this process in a user-friendly format.
Drafting a Complaint
Before you begin drafting your complaint, you should familiarize yourself with the specifics of the college you are submitting to. Some colleges require a specific format/template that they provide (example), while some will accept a complaint in any form. If any form is accepted, you may want to follow the formatting of a business letter for your complaint.
Different colleges permit complaint submission through different channels. While most colleges now permit submission by email, there may be some that require you to print your complaint and mail it or fax it. My preferred approach is to submit a PDF via email. I keep a complaint template that includes an image of my signature so there is no need to print, sign, and scan every complaint that I submit (many colleges request signed documents). If you have supporting media/files to submit, I have found that some colleges allow submission by file transfer platforms such as WeTransfer. When submitting electronically, ensure that you adhere to a consistent and logical file naming convention for your sake and theirs.
Like many others before you, you may feel that the complaint process and regulatory system is working against you. In order to improve the odds of regulatory action, you will need to submit a comprehensive and credible complaint. This will include submission of all relevant information as well as a compelling argument for your case. Unfortunately, unless you seek legal counsel, no one will do this for you. Even if the member you are submitting a complaint against is clearly engaged in unethical practices, good arguments can be made for bad practices, so you will want to put your best effort forward. Especially when it comes to issues of science and evidence, do not consider any claims or information to be self-evident. Indeed, I have submitted complaints against practitioners who deny the germ theory of disease.
Your first step is information gathering. At very least, you need to identify the practitioner you are submitting a complaint against and their practice. If the complaint concerns you personally, you will want to submit all relevant details. You may have to divulge personal information and authorize the college to collect this information if it is pertinent to the complaint. Generally, the college will not release your personal contact information to the member.
If the complaint concerns advertising/marketing material, you will want to submit information regarding the origin (where/when/how it was obtained) of the material as well as a replica of the material itself (such as a scan of a pamphlet). If the material is online, I recommend the following procedure:
- Record the URL from your browser’s Address Bar. Include this in the complaint.
- Obtain a replica of the material. You can either take a screenshot, print to PDF, or use a browser-based plugin such as FireShot. I often include screenshots of pertinent materials within my written complaint or submit files as supporting documents.
- In the event that the validity of the material is disputed, you will want a reliable record that the practitioner has actually published the offending material. For this, I recommend saving the page to an Internet Archive. This will preserve the content as it is and time stamp it as well. This tool has been used in legal proceedings. Mileage may vary when attempting to archive social media pages such as Facebook.
- Ideally, submit both the date the resource was retrieved (by you) as well as when it was published (if available).
If your aim is to perform a comprehensive investigation of a practitioner, you may want to make use of tools beyond simply browsing a practitioner’s website and social media. As the Toronto Star revealed in early 2018, such in-depth investigations can reveal troubling information about practitioners that colleges may or may not be aware of. This is particularly prevalent when practitioners have moved between regulatory jurisdictions. Unfortunately, this is not a guide on how to perform such investigations. I may address this in the future, but you can always contact me for assistance.
If you have concerns regarding a specific profession and their policies, processes, standards, and bylaws, you can always try reaching out to the college itself for assistance or information. Some colleges are more transparent and helpful than others. An interesting example that deserves recognition is the College of Veterinarians of Ontario, who run a podcast addressing important issues primarily for members, but of interest to the public as well.
The Response to Your Complaint
You will most likely receive a response to your complaint from the member (although not in all cases and not for all colleges). This may be written by them personally or by their legal representation. Ideally, the response will either admit to wrongdoing and address remediation taken by the member, or provide substantive evidence that supports the actions that prompted the complaint. If this is the case, you may want to consider dropping the complaint. In my experience, the best responses I have received have admitted to some wrongdoing, but defended other practices addressed in the complaint. As a result, I have yet to drop a complaint in entirety (although I welcome the opportunity).
Most likely, the member will put forward their best effort to defend their practices. While you have no obligation to comment on their response, it very well may help your case to deconstruct and rebut their arguments. The response may deny the allegations outright, provide evidence supporting the conduct, or may cite previous regulatory rulings that support (or contend to support) the member’s position. You may even be personally attacked and have your credibility challenged. You should be prepared for all of these possibilities. Cordiality cannot be expected, but its absence certainly reflects poorly on the practitioner.
In composing a response, ensure that you reference the initial complaint. Have all aspects of your complaint been addressed? Did the practitioner comprehend the nature of your complaint? How have they supported their practices? Did they provide citations to back up their claims? Make sure to focus on the nature of their response as well as the specifics of the content.
The member may employ semantic arguments to defend their practices. I find this particularly pervasive among practitioners practicing pseudoscience. Rebuttal can seem tedious, but you should do it. You cannot assume that the regulatory authority will see through the member’s semantic arguments. This process can also help you better form your complaints. As an example, I have typically claimed that there is “no evidence” supporting certain pseudoscientific practices. Practitioners have been quick to respond that this is incorrect. I find this pedantic, but – indeed – they are correct; even the weakest and most invalid evidence is still evidence. There is plenty of evidence, for example, that aliens have made contact with humans. If your standard of evidence is so low that you accept these propositions, however, I contend that you should probably not be a health practitioner. Perhaps instead use the qualifier “no reliable evidence.” It can be helpful to provide scientific literature with your initial complaint, but you also have the chance within your rebuttal.
The nature of the response precludes in-depth cookie-cutter guidelines, so I will not go into additional depth on this issue. I will note that you may be tempted to publish the response, especially if it is particularly absurd. I would caution against this as this process is typically private and you may face legal or other actions that could put your complaint and you personally at risk. If you think there is information worthy of public disclosure, contact legal experts or the media to go forward.
Appealing a Decision
If you are not satisfied with the outcome of a complaint and feel that the college did not satisfactorily address your concerns or perform an effective investigation, you can appeal to a higher authority. Health appeal boards (HPARB in Ontario) exist independent to both the government and the health professions.
Generally, an appeal must be initiated within a strict timeline following the conclusion of the college’s complaints process. Likely, an attempt will be made to resolve the issue without assembling the Board. Should a review proceed, the Board will review whether the investigation and action of the college’s committee was appropriate. The Board typically cannot discipline members directly, but they can deem the investigation insufficient and send the complaint back to the college for additional review and potential discipline.
One advantage of pursuing appeals is that they will end up documented in CanLII regardless of the decision. This can aid in setting precedent as well as bringing exposure to issues through publicly accessible documentation. When you draft your appeal, make sure to offer background, so that someone reading it later on the public record will understand the earlier complaint process and result from the college.
While appeals are worth pursuing, appeal boards are not free from issues. In the case of HPARB, decisions have been made that demonstrate a lack of regard for public safety and complete ignorance of scientific issues. As a result, this mechanism can provide protection of blatant health fraud and set illogical standards that can be referenced as a pseudo-legal precedent in defense of complaints. Indeed, members of HPARB (and other boards) are not domain experts in health nor are they scientifically trained.
Alternative Regulatory Mechanisms
While any unethical or incompetent practices performed by regulated health professionals should first be addressed by their regulating colleges, jurisdictional overlap exists with some issues that open additional avenues for protecting the public.
As mentioned previously, health professionals are not immune from criminal law. Unlawful conduct and abuse should immediately be reported to law enforcement authorities. Some issues may arise when distinguishing between assault and controlled acts performed by health professionals. Involving both law enforcement and the professional authorities (college) is likely always the best approach.
When it comes to advertising and marketing, health professionals are not only bound by their college’s SoP. False and misleading advertising of various forms is not permitted in Canada. Issues regarding improper advertising to consumers are addressed by both Ad Standards – Canada’s advertising self-regulatory body – and the Competition Bureau – an independent law enforcement agency to ensure a prosperous and innovative marketplace. The value of complaints against health professionals is unclear, but may be worth pursuing.
Health Canada is an additional regulatory avenue concerning medical devices and health products. When examining the use and advertising of devices and products, first examine whether a valid registration exists with Health Canada. For example, drugs will have a Drug Identification Number (DIN) and natural health products will have a Natural Product Number (NPN) identifying the respective registrations with Health Canada. If a registration exists, it will outline the authorized uses and advertising, including references product monographs that provide technical and (ideally) scientific information. Complaints can be submitted both for unauthorized uses/advertising and for unregistered products.
As with the colleges, reaching out to these organizations with specific questions or concerns may help you to formulate a complaint or determine whether the issue falls within their purview.
As with all regulatory frameworks, those that govern the health professions are far from perfect. It is virtually effortless for me to identify numerous health practitioners in my province who are either advertising illegally or promoting and practicing blatant pseudoscience that is not only ineffective, but potentially harmful. Further, I expect that complaints against many of these practitioners may fail to bring about regulatory action. Does this demonstrate that our regulatory structure is a failure? Maybe, but our system is designed to rely on public participation and I contend that we should truly exercise our rights in this domain to put the system to the test.
I encourage readers who encounter unethical practices from health practitioners to confront them. If you are not comfortable putting your own name on a complaint, I am happy to submit any complaint on your behalf that I feel is reasonable. Even if you have lost faith in the regulatory colleges to act in the interest of the public, the submission of complaints at very least establishes a paper trail of misconduct. We have the power to demand better. We should use it.