<i>Professionally Speaking</i>UpfrontDepartmentsFeaturesResourcesGoverning Ourselves


Governing Ourselves

Reports

Minister requests term extension | 2005 Atkinson scholar | Atkinson scholar update | Dispute Resolution Parts 1 & 2 | Annual meeting | Membership Services appointments | Accreditation | Council meeting | 2006 budget | French-language services | Investigations | Dispute Resolution | Hearings

Dispute Resolution: Part 1

Finding alternatives

Disciplinary action conjures up an image of a court-room style proceeding that is primarily adversarial. In fact, most professional self-regulatory bodies in Ontario – there are 37 and the list is growing – are increasingly using alternative means to resolve complaints against their members.

The result is fewer hearings and a better outcome for everybody – including the public, say those whose job it is to resolve complaints from the public or members of the profession.

"Dispute resolution is a flexible process," says Nadine Carpenter, who administers the Dispute Resolution Program for the Ontario College of Teachers. "It's voluntary and without prejudice and allows both the complainant and the member to have a say in the outcome. At the same time the College ensures that the public interest is protected."

Full, contested hearings are time-consuming and costly, a strong argument for using alternative methods of resolving complaints, which range in numbers from just a handful into the hundreds for some organizations.

Although reducing the time and money spent on hearings is no doubt a factor in the spread of alternative resolutions, a survey conducted by the College in 2004 suggests that some regulatory bodies are finding the alternatives have a number of advantages.

According to the survey of regulatory bodies in Ontario, no matter how small the college or how few the hearings, dispute resolution plays a role in resolving complaints.

Ninety per cent of the 19 regulatory bodies that responded to the survey, including some who have no more than a handful of complaints each year, said they used alternative dispute resolution.

They may call it something different – it's the Participative Resolution Program at the College of Nurses – or it may not have a formal name at all, but alternative means of resolving complaints all focus on trying to resolve issues quickly and to the satisfaction of the parties.

"Our program isn't one that assigns blame or liability or seeks to punish anyone," says Karen Puckrin, Co-ordinator of the Investigations Program for the College of Nurses of Ontario. "We seek remediation and to set things right for the complainant. It's really in keeping with our efforts to encourage quality improvement in nursing practice.

"Often a complaint is connected to a problem in the health-care system, in which case the health-care facility – that is, the employer – will also become a party in the process," says Puckrin. "Sometimes the facility can come up with a new policy that gives some support to the nurse, such as a pamphlet for the emergency room that helps to explain what the priorities are for emergencies."

In fact, dispute resolution may play a role even when the matter has been referred to a hearing. In many cases there are issues that can be resolved by mutual agreement between the member and the complainant.

"With an agreed statement of facts, a hearing can take half a day instead of a week," says Naomi Bussin of the Law Society of Upper Canada. "You can read the agreed facts into the record."

The Law Society has been able to greatly increase its service to the public with changes to its process that rely on a number of alternatives to formal hearings. The Society's new intake department tries to resolve concerns quickly.

"If there is a consumer issue – problems with getting a call back from a lawyer or getting a copy of a document – the intake department tries to expedite it. There may still be regulatory issues to deal with but the immediate issues are resolved," says Bussin.

In 2004 more than 4,300 complaints went to the intake department, which resolved 30 per cent of them, says Bussin. The rest were referred to the complaint resolution department, which also tries to reach an agreement between complainant and member. Where more serious issues are involved complaints are then passed to the investigation department.

Most regulatory bodies review their dispute resolution program once it has been underway for a while to assess how well it meets organizational objectives.

The College of Physicians and Surgeons of Ontario offered a voluntary dispute resolution process during the 1990s but found in an audit undertaken in 1998 that it was less successful than originally thought.

Sandy McCulloch, Managing Director of the Investigations and Resolution Department, said that complainants thought that the process – which sometimes took up to two years – was too long and they didn't like having lawyers involved. Physicians also disliked the lengthy process and would have preferred mediators with more clinical or medical knowledge.

The College made a number of changes, referring some clinical issues to the Quality Assurance Committee and taking a more proactive approach on other issues.

"It's still dispute resolution but we don't emphasize that name," says McCulloch. "As soon as a complaint or concern comes through the door we assess whether it is appropriate for early resolution rather than proceeding to a full investigation and hearing."

Rather than using a mediator the College used some of its own investigators who had clinical knowledge. "The majority of concerns from the public are around the quality of their care – how it was communicated to them or that the system worked against them," says McCulloch. "We felt that by moving away from professional investigators to people with clinical backgrounds and helping them learn to conduct an investigation was the better route to go."

The new approach involves much more face-to-face discussion with complainants, trying to clarify the issues and provide the information they need to understand what has happened. There is much less reliance on paper and, except in rare instances, lawyers are excluded from the process.

An audit of the new approach showed that everyone was happier with the outcome, not least because the time from complaint to resolution was cut by more than half.

Self-regulatory bodies continue to use hearings to handle their most serious complaints, such as sexual misconduct. According to survey responses, most organizations have no legislated restrictions on the use of dispute resolution but nearly half of them have developed policies to restrict its use.

"We never resolve sexual abuse cases without a hearing," says Kristina Mulak of the College of Chiropractors of Ontario, which handles between 130 and 140 complaints a year but conducts only about six hearings a year.

The nursing profession has also established criteria for assessing whether or not a complaint is suitable for the Participative Resolution Program. "We wouldn't ever use it for serious allegations of negligent practice or any kind of abuse of a client. Those complaints would require full investigation for possible referral to the Discipline Committee," says Puckrin.

The College of Teachers also sends its most serious complaints to its Discipline Committee. Dispute resolution may only be used to settle complaints of sexual misconduct when the complaint is initiated by the Registrar. If such a complaint originates with a member of the public the College does not consider it suitable for dispute resolution.

That's not because the outcome would be different if dispute resolution was used, says Carpenter. "It's a question of maintaining confidence in the profession. People expect such serious allegations against a teacher to be handled in a hearing that is open to the public."

And that raises another issue that self-regulatory bodies have to contend with – how much information is made public when complaints are resolved by agreement and without a public hearing.

Some regulatory bodies publish the outcome of hearings in their annual report. The Law Society of Upper Canada, on the other hand, announces member suspensions and revocations in a news release, in addition to publishing them on its web site. College policy has been to publish the outcome of a complaint in its quarterly magazine and on the web site, no matter how a complaint is resolved.

"Our goal is for our members and the public to understand why the panel made the finding and imposed the penalty that it did," says Carpenter. "If people understand the process and the outcome, that provides some guidance for members and also builds public confidence in the profession's ability to regulate itself. Both of those are very important objectives for us."

Dispute Resolution: Part 2

What is Dispute Resolution at the College?

Dispute Resolution is an alternative process used for the resolution of some complaints against members of the College without a full investigation and/or contested hearing.

Dispute resolution may be introduced at any stage of the complaint process and allows the complainant and the member to play more active roles in determining the outcome.

Dispute resolution is voluntary and without prejudice to the parties.

What are the benefits?

Dispute resolution can:

  • take less time than a full investigation or contested hearing

  • allow the parties to participate in resolving the matter by generating a variety of options

  • help restore a working relationship between the parties.

What complaints are suitable for dispute resolution?

All complaints against members of the College are assessed to determine whether they are suitable for dispute resolution. A complaint is considered suitable for dispute resolution if it appears that a result could be achieved that would:

  • protect the public interest

  • reflect the outcome that could be expected following a full investigation or contested hearing.

Dispute resolution will not be used at any stage where the originator of the complaint is a member of the public and the complaint relates to sexual abuse as defined in section 1 of the Ontario College of Teachers Act.

How does dispute resolution work?

Public complaint

A member of the public has the right to initiate a complaint against a member of the College. Such complaints often come from parents, students or other members of the College.

If a matter is suitable for dispute resolution and the parties, including the College, are amenable, mediation between the parties occurs. Parties may have a representative assist them.

A mediator works with the parties until a satisfactory agreement has been reached or until it becomes clear that an agreement cannot be reached. The College participates and ensures that any agreement protects the public interest.

If the parties do not reach an agreement or if either party withdraws from the process, the College deals with the complaint through the usual investigation or hearing process.

Registrar's complaint

The Registrar of the College also has the authority to initiate a complaint against a member of the College. Registrar's complaints often involve allegations arising from employer notifications.

If a matter is suitable for dispute resolution and the parties are amenable, negotiations between the College and the member or their legal representatives commence. If the parties do not reach an agreement or if either party withdraws from the process, the College deals with the complaint through the usual investigation or hearing process.

What outcomes arise from dispute resolution?

When matters are resolved through dispute resolution, the parties sign a memorandum of agreement outlining the terms to which they have agreed.

Outcomes arising from dispute resolution are similar in scope and nature to those expected following a full investigation and/or contested hearing.

Any agreement entered into by the parties becomes final and binding once ratified by a committee of the College.

The committee will only ratify such an agreement where it is convinced that the terms ensure protection of the public interest.

What happens if a member does not comply with a memorandum of agreement?

Failing to abide by an agreement with the College is defined as professional misconduct in Regulation 437/97, under the Ontario College of Teachers Act.

When a member does not abide by an agreement with the College, the matter is brought before a College committee for consideration.