Where a third party complains about the conduct of a practitioner, complex issues arise. The complainant is not entitled to confidential client information. The regulator has to assess whether it should obtain the relevant client information and, if so, what if any of it should be disclosed to the complainant.
In King v. Gannage, 2020 ONSC 7967 (CanLII), http://canlii.ca/t/jc98k the complaint was whether a practitioner should be providing an alternative therapy to children with autism. The Court indicated that the regulator can take into account the confidentiality of the information when exercising its discretion to obtain it. In addition, it stated that while the practitioner did not have the implied authority to disclose client information that would exist if the complainant were a client, they had discretion to provide the information to the regulator under the Personal Health Information Protection Act. The practitioner chose not to provide client information. The Court upheld the decision of the regulator that the complaint did not provide a sufficient basis to warrant the regulator obtaining the appointment of an investigator to collect client information from the practitioner.
The Court also indicated that the screening committee did not need to review hyperlinks to additional, unscientific, resources provided by the complainant:
Moreover, if the applicant believed that some of the sources found in the hyperlinks were significant, it was up to her to bring those specific sources to the ICRC’s attention. As a complainant, she had the responsibility to clarify her concerns for the ICRC. As well, it was important that she do so in order that the responding physician could adequately respond. The fact that the ICRC did not consider these hyperlinks does not render the investigation inadequate.
The Court also found there was no unfairness in the regulator not retaining an expert witness in the circumstances of the case. The screening committee was in a position to determine the issues on its own.
The Court also found that the decision of the screening committee was reasonable:
As I said above, the ICRC’s role is to assess the standard of practice of an individual physician, not to determine, in the abstract, whether controversial alternative medicine theories are acceptable.
There was no information before the screening committee that clearly demonstrated that the alternative therapy was harmful or, even, ineffective. This case provides a useful guide to regulators caught up in a dispute over “philosophical” approaches to practice.