Written By: Lindsay Charles and Leah Burlock, Summer Student
In an attempt to streamline the process for submitting complaints through Canada’s largest medical regulator, the College of Physicians and Surgeons of Ontario (CPSO), Justice Goudge was retained by the Ministry of Health and Long-Term Care to submit recommendations regarding the complaint process, wait times, and the overall efficacy of the process. The CPSO aims to reduce the number of hearings while maintaining a fair process. Justice Goudge released two reports, the first of which focused on the reform of the physician complaint process, and the second involving a review of medical liability.
The CPSO receives the largest number of complaints against physicians of any health care regulator in Canada. Physicians are increasingly seeking advice and representation from the Canadian Medical Protective Association (CMPA), a non-profit organization that provides legal representation to doctors, and as a result, the cost of business for the CMPA continues to grow. Ontario now seeks to create a simplified and cost-effective process for all participants.
The Ministry of Health and Long-Term Care seek to balance the rights of patients to file complaints as they see fit, while giving physicians the opportunity to respond to such complaints. The physician’s complaint process aims to have an “open door” policy, allowing public complaints against physicians with minimal legislative barriers. The process is also a mechanism for the Registrar to initiate investigations, even in the absence of a public complaint. Justice Goudge, in his reports, saw room for greater efficiency with no sacrifices to fairness. A notable example is that approximately 80% of all Public Complaints result in no action being taken against the physician in question. The same is true for a smaller number of Registrar’s Investigations. Only 0.3% of all complaints ultimately result in a fully contested discipline hearing.
Quite simply, there are too many complaints in the system, and they remain there for too long. Although the CPSO is legally required to investigate and review each complaint, they need to do so within 150 days. Justice Goudge found that average time period for review was 200 days. This fact alone informed many of Justice Goudge’s recommendations.
Streamlining the Physician Complaints Process
Justice Goudge’s first recommendation is that the Registrar, similar to the Complaints Director in Alberta, be required to conduct an early review of Public Complaints and be given the power to “approve the withdrawal of a Public Complaint by the complainant or dismiss a Public Complaint outright where satisfied that there is no reasonable prospect of an outcome from the ICRC other than No Action.”
Justice Goudge also recommended that the CPSO create a patient advocate position. An individual in this position would be required to interact with the complainant immediately after filing to review and clarify the true substance of the complaint. This individual may inform the complainant of the limits on the scope of the jurisdiction of the CPSO. Having the patient speak with someone who is empathetic to their position and perspective may well satisfy them that their complaint can be withdrawn or falls outside the jurisdiction and remedy may be sought elsewhere.
Finally, Justice Goudge recommended an alternative dispute resolution process. The use of ADR may successfully streamline a complaint and get the complainant exactly what they were looking for in an efficient and cost-effective manner.
Justice Goudge concluded that if implemented, these recommendations will successfully minimize the amount of time these cases remain in the system without jeopardizing the integrity of the process for patients, physicians, and the public.
It is important that the public feel as though there is a safeguard or effective means of reprisal for physicians when they behave outside the parameters of morality. These recommendations, according to Justice Goudge, properly serve the public interest.
Medical Malpractice Cases
Justice Goudge also found that change is required to ensure that those who have suffered as a result of medical malpractice receive fair compensation and are provided fair process. Justice Goudge recommends that the government take care of the future costs of injured patients, and monitor changes to future income loss and discount rates. Justice Goudge also specifically details the need for Ontario to establish an “advisory committee,” which includes individual representatives from the plaintiff, defence, and experienced judges. This committee would help monitor the execution of his recommendations and help provide feedback for improvement. In sum, it is increasingly important that this process of physician complaints is accessible, accountable, and cost effective.
 Hon. Stephen Goudge, Q.C., “Streamlining the Physician Complaints Process in Ontario”, (9 February, 2016),online: <http://www.health.gov.on.ca/en/common/ministry/publications/reports/physician_complaints/doc s/physician_complaints_process_en.pdf>.
 Hon. Stephen Goudge, Q.C., “Report to Ontario Ministry of Heath and Long Term Care. Re: Medial Liability”, (29 December, 2017) online: <http://www.health.gov.on.ca/en/common/ministry/publications/reports/physician_complaints/doc s/physician_complaints_process_en.pdf>.