Guidelines to Determine Relevance to Member’s Suitability to Practise

Effective September 30, 2015

Purpose

The purpose of this policy is to provide a guideline in determining when a member’s conduct is relevant to their suitability to practise.

Introduction

Health regulatory colleges in Ontario are mandated by the Regulated Health Professions Act, 1991 to serve and protect the public interest. As part of that mandate, the public seeks assurance that the individuals who are granted an exclusive right and privilege to provide certain health care services to the public are worthy of that trust.

To retain the public’s trust, optometrists must maintain the highest standards of integrity and demonstrate a willingness to be governed. The College must demonstrate the ability to regulate members in a manner that protects the public by ensuring that members of the profession are suitable to practise optometry and meet public expectations regarding members’ conduct throughout their careers.

In fulfilling this mandate, the Registrar of the College is required to determine whether a member’s conduct is relevant to his/her suitability to practise optometry whenever the College becomes aware of a member’s conduct through self-reporting or other sources (e.g., media, police, health care institution, health care professional). To uphold this requirement, the College has drafted these Guidelines with a view to:

Assist the Registrar in determining when a member’s conduct is relevant to his/her suitability to practice optometry;
Provide greater transparency to members and the public regarding the processes for determining when conduct will be considered relevant to suitability to practice; and
Provide greater transparency to members and the public by establishing expectations for appropriate conduct.

The Guidelines are intended to ensure that the criteria for the assessment are clearly articulated and defensible and that the process for reviewing conduct is consistent, transparent, and fair. The Guidelines focus on the behavior that is required of members and the type of risk that inappropriate behavior poses to the public.ⁱ By focusing on the behaviour, greater clarity and validity is afforded to the decision-making process.

Criteria for Assessment

In establishing criteria for determining relevance to suitability to practise optometry, the College identified that the conduct relevant to a member’s suitability to practise optometry is related to the following areas:

Ethical delivery of quality health care
Honesty, integrity, and risk of harm outside of delivery of health care
Governability
Financial responsibility
Past conduct

1) Ethical Delivery of Quality Health Care

It is the responsibility of optometrists to provide quality care to their patients. Optometrists have a fiduciary duty to their patients requiring them to use their knowledge, skills, and judgment to benefit their patients, before their own advancement or that of an employing organization. Regardless of a practitioner’s position or practice environment, when an optometrist performs a specific role, he/she must perform it to the level specified in the Standards of Practice of the profession and code of ethics and meet the standards associated with that role. Conduct or behaviour by optometrists that is in opposition to this requirement erodes public confidence in the profession.

Charges or findings of offences or conduct involving dishonesty or breaching the fiduciary duty owed to patients demonstrates behaviour that signifies a lack of respect for the responsibility to deliver ethical and quality health care. Conduct of this nature could include prescribing without appropriate clinical support and dialogue with patients where required, providing services for reasons other than a fiduciary duty to patients, recommending unnecessary treatment or services for personal pecuniary gain focusing on volume of prescriptions instead of quality of care, neglecting professional obligations, multiple assessments by the College with negative outcomes (e.g., not fulfilling action plans), or disruptive, rude, or disrespectful behaviour toward patients or other health care professionals.

2) Honesty and Integrity

Optometrists are in a position of trust and are expected to conduct themselves with honesty and integrity. Honesty is considered a required element in behaving with professional integrity.ⁱⁱ The public must be able to believe and place their trust in their health care provider; therefore conduct that demonstrates a lack of honesty or integrity will undermine public confidence in the profession and the effective delivery of health care.

This expectation extends to behaviour in a professional’s personal life, or business dealings, as professional behaviour is seen as an overall requirement of the individual, not just in their professional capacity.

Charges or findings of offences or conduct involving dishonesty, fraud, academic or professional misconduct, failure to disclose all relevant information, lack of candour, and breach of trust, call into question a member’s integrity and honesty. Conduct of this nature could include findings of dishonesty, theft, fraud, sexual assault or abuse, common assault, tax evasion, break and enter, crimes of a sexual nature, murder including attempted or conspiracy to commit, driving while under the influence, any illegality (e.g., trafficking), and conduct of a derogatory or discriminatory nature.

3) Governability

In order for the College, as a regulator, to ensure that the public is protected, members must demonstrate an ability to self-regulate and a willingness to accept the authority of the College, as well as an understanding of the importance of effective governance of the profession to the protection of the public. If a member demonstrates un-governability, it undermines the College’s ability to fulfill its mandate and jeopardizes the public trust.

Charges or findings of offences or conduct that display a lack of respect for governance and an unwillingness to accept authority reflect negatively on the member’s ability to abide by requirements outlined by the College through regulation, standards, policies or guidelines, or remediation or discipline procedures. To support public confidence in the regulation of the profession, the College must be confident that a member will abide by the established standards and requirements, and by the direction given by the College when those standards and requirements are not met. Conduct of this nature could include a history of multiple offences, breaching of undertakings, probation, or recognizance, previous findings of professional misconduct and/or refusal of registration by another regulatory body, falsifying records, or failure to meet professional obligations.

4) Financial Responsibility

Members are required to act as fiduciaries to their patients and society and are entrusted to place patients’ best interests over their own interests or the interests of the business in which the professional may have ownership. Members have a fiduciary responsibility to act in a transparent manner in all dealings with patients, including all financial transactions, and to help patients make the best choices to optimize their health. Patients do not have the same access to knowledge of costs associated with the delivery of optometric care and intricacies of OHIP-insured services and must rely on their optometrist to act with integrity and to provide accurate information regarding costs and available therapies.

Public perception of the effectiveness of self-regulation has been eroded by the public’s perception of conflict of interest, either real or perceived, in health care.^iv It is essential that members are honest in financial dealings that occur within and outside of the practice to uphold public confidence in the legitimacy of services provided. Charges or findings of offences or conduct that demonstrate evidence of willful financial irresponsibility in a member’s private or professional life may undermine the confidence of the public in the profession to act responsibly as a fiduciary to patients and to society. Conduct of this nature could include conflict of interest, misuse of public or third party payor funds, fraud, or tax evasion.

5) Past Conduct

Past misconduct may not be a definitive predictor of future conduct, but it does raise questions about a person’s understanding of the conduct required of a member of the profession. When reviewing current conduct, an individual’s past misconduct could identify aggravating factors that should be considered collectively with the current conduct. In determining the relevance of the individual’s current conduct to his/her suitability to practise, the following should be considered:

the circumstances of past and current conduct;
the individual’s actions since any previous misconduct;
nature and seriousness of past and current conduct (including the extent and duration);
number of offences or incidents;
length of time between the conduct in question and past misconduct;
insight into the dishonest behaviour, both past and current (whether the member has admitted misconduct);
whether there are extenuating circumstances (medical, family-related issues);
the existence or absence of remorse, acceptance of responsibility, or an understanding of the effect of the misconduct;²
evidence of rehabilitation;
compliance with orders or undertakings with the College or any court with respect to the past and current conduct;
whether the current conduct was committed to achieve personal gain or advantage;
the real and potential impact onto others of past and current conduct;
where there has been failure to disclose information or lack of candour, whether the individual deliberately provided false or misleading information, or demonstrated recklessness or willful blindness in relation to the information provided.

Charges/Findings of Guilt in Another Jurisdiction

Any charges and findings of guilt against a member in respect of a federal, provincial, or other offence that the Registrar believes is relevant to the member’s suitability to practise will be posted on the member’s public register. When assessing the relevancy to suitability to practise with respect to any charges or findings of guilt against a member in another jurisdiction, the Registrar will take into account whether it would constitute a comparable offence/finding of guilt if committed in Ontario (Canada).

Process for Reviewing a Member’s Conduct

The assessment will be used when the College becomes aware of a member’s conduct, to determine whether charges and findings against a member are relevant to the member’s suitability to practise optometry.

The process involves the following stages: gathering and verifying information, further inquiry, assessing information, and proceeding with appropriate action (i.e., no action or posting information about charges and/or findings on the public register).

Receipt and verification of information

The College currently uses a variety of sources to gather information about a member’s conduct:

Applications for renewal of a certificate of registration including a series of questions concerning conduct.
A member’s record with the College.
Other sources such as the police, other members, or the Ministry of Health and Long-Term Care.

Independent Verification

Information received by the College is verified as appropriate depending on the source of the information and based on the information received. The College has a process for verifying information received from members, employers, the police, third parties (e.g., the Ministry, other regulatory bodies) and anonymous reports. Information may be verified by contacting the individual who reported the information to the College for further details, the courthouse for further information, the Crown Attorney’s Office, or any other sources that are considered relevant and appropriate.

Further Inquiry

In the majority of cases the information provided through self-reporting and a review of the independently obtained information will be sufficient to make a determination about a member’s suitability to practise optometry. At times, information provided will trigger the need for further inquiry into the member’s conduct by College staff. The scope of the inquiry will vary based on the facts presented in each case, but will always involve gathering additional applicable information about the member from relevant sources. Information gathered through an inquiry will be considered in conjunction with any information initially provided by the member or independent verification when reviewing the member’s conduct.

Assessing Information

Once all the relevant information is gathered, it will be reviewed to determine whether the member’s conduct is relevant to a member’s suitability to practise optometry and what resultant further action is required by the College and the member. Review of the information gathered will occur by the Registrar.

Proceeding with Appropriate Action

Appropriate action is determined based on risk that the behaviour poses to the public and the authority granted to the College as outlined in legislation and the by-laws. College process for posting charges and findings relevant to the member’s suitability to practise optometry is outlined below.

Process for Posting Charges and Findings of Guilt Determined to be Relevant to Member’s Suitability to Practise

Where the Registrar makes a decision to post the charge(s) and/or finding(s) of guilt that are relevant to a member’s suitability to practise optometry, the College will provide the member with written notification of the posting.