Law Times

Law Times • November 4, 2013 Page 9 FOCUS Bill would help assessors facing frivolous complaints BY JUDY VAN RHIJN For Law Times N ew legislation is on the table that may afford some protection to the health professionals who take on the task of preparing child custody assessments. By providing their regulatory colleges with more discretion over which complaints they investigate, the proposed changes may prevent litigants from using the complaint process as a litigation tactic and prompt more professionals to take on this type of work. It has been just over a year since the Ontario Bar Association's family law section sent out a letter to the College of Psychologists, the College of Physicians and Surgeons of Ontario, and the Ontario College of Social Workers and Social Service Workers. It invited the colleges to work with the OBA to address the complaints faced by assessors from people who in some cases are seeking to influence their family law proceedings. "These are people who attack everybody and anybody. That's why they're still in the process," says Jennifer Samara Shuber of Basman Smith LLP, who's also a qualified social worker. "The assessor knows that right from the get-go. These people are not looking to go forward. It's another step in the confrontation." Christine Marchetti of Stanchieri Family Law is married to a psychologist and is well aware of the issue. "The college takes every single complaint seriously. Every one is examined and investigated. Even if you have done the best job possible and followed all the procedures and protocols, you can still find yourself dealing with it." Marchetti notes the situation can both reduce the pool of professionals willing to take on the task and affect their performance when they do. "We certainly don't want the assessors conducting the assessment defensively," she says. Some people argue the colleges shouldn't be involved in these matters at all given that s. 26(4) of the health professions procedural code provides that regulatory colleges can take no action when they consider a complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. Psychologist Arthur Leonoff, who has had to resort to the courts to defend himself against vexatious complaints, suggests the colleges already have the tools to deal with the problem. "They have legislation that allows them to fix the problem and identify people abusing the system but they've never really used it. The college makes no distinction between cases where there is a patient-client relationship and those where the complainant is a litigant." The colleges' position is that there's an extremely high threshold for the application of s. 26(4) and that they must investigate all complaints regardless of their seriousness or merit. In response to the OBA's letter and the recommendations of the appeal board in the Leonoff case, the College of Psychologists appointed a task force. However, the mandate of the task force was only to provide some guidelines to members. "They didn't necessarily take the appeal board's advice strongly enough," says Leonoff. "One thing the college did was to survey psychologists in the province, as if they didn't believe this reason why people were complaining," says Leonoff. "They got a clear message that this is a major problem precisely as stated." On Oct. 4, 2013, the task force provided the college council with comprehensive draft advice for members providing psychological services in the context of child custody disputes and child protection proceedings. The draft document is available to members for comment. "It is anticipated that a final draft will be provided to council for approval in March 2014," says registrar and executive director Catherine Yarrow. The task force did go outside its mandate by suggesting the college review complaint screening mechanisms, within the parameters set by out in the Regulated Health Professions Act, and systemic issues that might affect the willingness of qualified professionals to provide these services. The introduction of bill 117, the enhancing patient care and pharmacy safety act, on Oct. 10, 2013, responds to submissions made by the College of Physicians and Surgeons to the minister of health and long-term care. It requested legislative change to allow for some discretion to decline to investigate complaints in certain circumstances. The bill proposes amendments that will permit flexibility. As a result, the registrar will be able to make the determination that there will Girones_LT_Nov4_13.indd 1 Childview_LT_Nov4_13.indd 1 www.lawtimesnews.com be no panel to investigate complaints that couldn't constitute professional misconduct, incompetence or incapacity. The complainant can seek a review of the registrar's determination. "The college is following the bill closely as it moves through the legislative process," says College of Physicians and Surgeons spokeswoman Prithi Yelaja. "However, unless and until the legislation passes, the college has no discretion and must investigate all complaints that come to its attention." LT 13-10-28 4:58 PM 13-10-28 4:47 PM

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