A report commissioned by the British Columbia College of Physicians and Surgeons, entitled Critical Review of the Formal Complaints Process, contains a number of innovative recommendations to make the process more accessible and accountable, particularly for First Nations, Inuit and Métis peoples. The entire report is worth reading. However, one proposal, relating to soft complaints, is particularly groundbreaking. The term, “soft complaint” is not part of Canada’s legal system. In a search of the CanLII database of hundreds of thousands of cases, the term is only used once and in an entirely different context (i.e., symptoms that cannot be objectively measured in a workers’ compensation matter).
A soft complaint is one that is made with no intent of there being formal action taken. It is an opportunity for a recipient of a service to communicate with a regulator about the recipient’s experience. The report says:
Many people who feel as though they have experienced harm want to share their story without going through a long, drawn-out process that takes time, energy, attention, and often requires a patient to relive painful experiences. However, there is no mechanism for a patient to simply register a complaint or tell their story without going through the entire intensive process….
The purpose behind this type of option would be to ensure patients know that even if they choose to not go through the entire complaints process—interviews, written forms, and often painful conversations about the harm caused—they still have an alternative avenue through which they will feel heard and validated in their experience. “Some people just want to be heard, give the information to the College and leave it there,” said one expert….
This option is intended as a means of provide [sic] patients with a platform to share their experience to ‘get it off their chest,’ which means that except for extenuating circumstances (i.e. criminal activity has taken place), there will likely not be formal consequences or disciplinary action enforced for the physician or surgeon involved, and this will need to be made clear to patients who choose to submit a soft complaint. [citation omitted]
Soft complaints can be made by communities as well as individuals. It is expected that the soft complaints process would generally take place in one sitting. It would be offered as an in-person meeting, as well as in other formats.
While a record would be kept of the soft complaint, it would be anonymized.
The regulator is expected to make records of the soft complaints and report on them annually to provide a public window into the concerns that are being expressed informally. This is tied in with another aspect of the report encouraging the regulator to collect, on a voluntary basis and through a sensitive process, data on how those coming forward identify themselves. The regulator is also expected to use this information to contribute suggestions for addressing anti-Indigenous racism within the health care system generally, within the profession, and within its own regulatory processes.
As is expected with any new proposal, there are many unanswered questions about it including:
- How can the process be structured so that those coming forward do not feel that they are being “steered” away from the formal process?
- What if the person coming forward later changes their mind and wishes to commence a formal complaint?
- What criteria will be used to determine if the information is too serious to keep confidential, who will make that decision, and what rights does the person coming forward then have?
- Will the information be used by the regulator for other purposes, such as part of the prior history when considering future formal complaints against the registrant or to identify higher risk registrants for more intensive quality assurance screening?
- Will the registrant be informed? Will the information be subject to disclosure if the registrant faces a discipline hearing on related or unrelated matters?
- Can measures be taken to prevent the misuse of the process (e.g., by “competitors” or “personal adversaries” of the registrant)?
Regulators will undoubtedly be monitoring this development with interest.