Praise for Dispute Resolution program
Lisa Feld, a legal expert in areas of dispute resolution and mediation, told Council at its June meeting that the College's Dispute Resolution (DR) Program could be held up as an excellent example of how a professional regulator is supposed to work in the public interest.
"If I had been asked what would be the best model, I would have presented this exact program," Feld told Council.
Feld, a lawyer with Stitt, Feld, Handy in Toronto, was charged with conducting a review of the DR Program as it is used to resolve sexual abuse complaints against College members.
Feld noted that, under the program, complaints are dealt with quickly and victims are spared further difficult participation. Feld also noted that each case is reviewed by a panel made up of members of the profession and the public.
"And for the majority of cases, you are quite properly publishing the name of the member with details of the allegation," she concluded.
The Dispute Resolution Program, introduced in 1999, was originally designed to resolve complaints not involving sexual abuse by negotiating memorandums of agreement (MOAs) with members who were prepared to forego a full investigation or hearing.
In 2001 the success of the program led the College to begin using MOAs to respond to reports from employers of a member's professional misconduct involving sexual abuse. In such cases the College Registrar lodges the complaint.
In December 2003 Council asked the Registrar to undertake an external review of the program to determine the appropriateness and legislative basis for using the DR Program to address complaints of a sexual nature.
Feld examined program documents, interviewed staff and conducted interviews with external legal advisors, defence counsel, the chairs of the Council's Investigation, Discipline and Fitness to Practise committees, and the former Justice Sydney Robins, who wrote the 2000 report, Protecting Our Children: A Review to Identify and Prevent Sexual Misconduct in Ontario Schools. Feld also reviewed information from other professional regulatory bodies and their handling of similar complaints.
In her report to Council, Feld stated that the College "is on solid legal, ethical and procedural ground" in using DR to resolve the Registrar's complaints of sexual abuse. "The current program is effective and efficient, and College committees and staff are vigilant in ensuring that the public interest is protected."
Although there is no legal obligation on the College to make an MOA public if ratified by the Investigation Committee, Feld concluded that the College's practice of publishing a summary in its magazine is appropriate.
Feld also pointed out that the College, as part of its mandate to protect the public interest, created a precedent in publishing the names of members who sign a memorandum of agreement with the College.
Feld called the publication of names one of the unique aspects of the program and one that impressed former Justice Sydney Robins, whom she consulted. This practice "needs to stay as an important part of the program," she told Council.
Feld also said that it is a practice viewed by others such as the Health Professions Regulatory Advisory Council as "the proper policy decision."
Feld recommended modifications to the program to increase transparency and standardize practice.
The name of the program, said Feld, might lead to confusion. Other regulatory bodies use dispute resolution to mediate between a member and a complainant, but do not mediate sexual abuse cases. The College's Dispute Resolution Program is used only for complaints lodged by the Registrar and where the outcome is similar in nature to what would be expected following a full investigation and hearing. The victim is not involved.
The review also addressed concerns about which committee should most appropriately ratify MOAs. Depending on the point in the process when an MOA is completed, either the Investigation Committee or the Discipline Committee decides whether the MOA will be ratified. However, only Discipline Committee hearings are held in public.
Feld concluded that in either case, the program is "a reasonable and responsible process, consistent with the College's mandate of protecting the public interest, in which a complaint may be resolved without undue expense and delay and without the stress on young victims otherwise being required to testify at a hearing."