I’m pleased to share with you my article infection control lawsuits and how dentists need to be aware of the legal risks associated with patients and their family members getting letters from public health or the practice itself, advising them to get checked for communicable diseases:
Click HERE to read all of our publications.
The infection prevention and control (“IPAC”) craze has had dentists scratching their heads for quite some time wondering where to turn for answers about IPAC, Public Health Ontario (“PHO”) inspections, which of the many IPAC guidelines to follow, how to respond to inspectors, etc. If you’re out of the loop and need to find out more about the “craze” that started last summer, see our previous IPAC blogs by clicking here.
The description of the checklists on the PHO website states:
These checklists were developed to assist public health units and others during IPAC lapse investigations and can be used to conduct inspections, audits and reviews of IPAC programs in dental practice settings.
That’s helpful, right? But it appears that an inspector who comes to your practice may be using these two checklists to assist in ensuring compliance. The language is not definitive and room is left for inspectors to use other documents. What’s more, the checklists reference sources from the RCDSO guidelines and Dispatch articles, the Occupational Health and Safety Act, PHO documents, Provincial Infectious Diseases Advisory Committee (PIDAC) documents, the Centres for Disease Control and Prevention (CDC) documents, etc.
So, although instructive on the matter, the new checklists may not be the definitive answer dentists were waiting for about their IPAC obligations!
The RCDSO put out a news release early this month stating that they have worked closely with PHO to develop the new checklists.
The RCDSO also took the opportunity to confirm that the RCDSO has always and continues to suggest that dentists’ professional obligations include
following public health guidelines as well as the recommendations of manufacturers of sterilization and other dental office equipment to ensure patient safety at all times.
They also hint at “potential changes” to the RCDSO Guidelines but confirm that no changes are anticipated until at least the new year.
What’s interesting is that despite recommendation that dentists follow public health guidelines and manufacturer recommendations for sterilization, they also state the current RCDSO guidelines will remain in effect and that “We have had no reports of any dental office that follows the current Guidelines being closed” which is a confusing message to send to dentists.
Right now, dentists don’t know where to turn for authoritative IPAC information. They are pulled in every direction from PIDAC to RCDSO to CDC to CDA – each of which have their own guidelines, recommendations and IPAC documents – some of which are similar but not always the same. And with confusing and contradictory information about which document to follow for proper IPAC measures in their dental practice, no wonder there is so much head scratching going on.
Although not the definitive answer dentists were waiting for, the new checklists are certainly instructive and a step in the right direction. But it is my hope that the PHO and RCDSO continue to collaborate to create a consolidated guideline document for dental practices that will help dentists to easily access one authoritative document and then feel safe and at ease knowing that they are conducting their IPAC using the authoritative guideline on the matter.
In the meantime, dentists should be familiar with both PIDAC and RCDSO guidelines on IPAC. If you are a dentist in Ontario you should absolutely use the new checklists to conduct an internal inspection and to see if your office would comply if an inspector walked into your dental practice today! And be sure to familiarize yourself with the other documents cited in the checklists!
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about IPAC at your dental practice, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
I’m pleased to announce that I will be presenting to dentists at their annual All Societies Night hosted by the Toronto Academy of Dentistry at the Prince Hotel (900 York Mills Rd) this Thursday, March 2, 2017. The Topic: “The Corporatization of Dentistry: What Dentists Need To Know”.
Here are the details:
FYI, I plan to discuss:
If you have any issues registering, contact Lori O’Doherty (executive director of the Toronto Academy of Dentistry):
Lori O’Doherty, Executive Director
Toronto Academy of Dentistry
970 Lawrence Ave West, Suite 207
Toronto, On M6A 3B6
Cell Phone: 905-392-0596
Direct Phone: 416-967-1178
See you then / there for a lively discussion!
Happy New Year everyone!
I hope 2017 brings you health, happiness and prosperity!
A quick update: just as everyone was getting ready to celebrate the holidays, on December 23, 2016 the Ontario Labour Board certified the staff of YET ANOTHER dental office for unionization.
The staff of Pathways Dental Care (Bryan Stein Dentistry Professional Corporation) in Hamilton, Ontario were certified for unionization after more than 50% of staff eligible to vote voted to unionize.
Unionization in dental offices doesn’t seem to have gained too much momentum but it is still something you should consider when thinking about your staff and HR issues. If you’d like more information on the unionization process or what unionization would mean for your dental practice, you can read my articles: Unionization in the Dental World – What it May Mean For You and Unionization in the Dental World – Another Unionized Dental Office in Ontario.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
You may already know that the Ontario Health and Safety Act (the “OHSA“) makes it mandatory that every Ontario workplace, including all dental offices, have policies and procedures in place regarding workplace violence and harassment [sections 32.0.2(1) and 32.0.6(1) respectively]. But did you know that these policies must contain, among other things, definitive procedures for dealing with workplace violence [section 32.0.2(2)] and harassment [section 32.0.6(2)]? One of these procedural requirements is a system / structure for investigating complaints of violence and harassment.
For most dentist employers, the investigative process is both new and daunting. If you are in a situation where you may have to undertake an investigation you may have questions ranging from “who should investigate” to “what questions should be asked”. Having guidance on how to proceed with a workplace investigation may be invaluable to you – so that is what I will try to do for you here, including providing you with workplace investigation DOs and DON’Ts.
Complaints that may trigger the investigative process can come from any number of sources: employees, patients, suppliers, anonymous complaints, etc. Additionally, the duty to investigate may be triggered if you, the employer, become aware of workplace violence, harassment or other serious breach of office policies through means other than a complaint, such as social media, observing an incident or overhearing others’ comments.
When receiving a complaint you should gather as much information as possible about the incident in order to make appropriate decisions about whether to investigate and to what extent. If possible, have the complainant put their grievance in writing or alternatively, take very good notes while the complaint is being described to you and have the complainant sign a copy of those notes.
Once the complaint is obtained, remind the complainant of their duty to keep matters confidential and advise them that their interest will be protected as much as possible (for example, any retaliatory behaviour towards the complainant on the part of the respondent will not be tolerated).
Whether the duty to investigate is triggered depends on the seriousness of the complaint and the specific facts of each case. However, I recommend you take every complaint seriouly because not taking a complaint seriously may land you in hot water.
- accept written, verbal, anonymous or any other complaints
- take complaints seriously
- consider whether the duty to investigate is triggered
- remind complainant about their duty of confidentiality
- be sensitive towards the complainant’s emotional state as it may have taken a lot of courage to come forward with the complaint
- dismiss complaints off hand because you don’t think they have merit
- question the complainant’s credibility before you’ve hand a chance to investigate
- advise the complainant to “take it like a man” or to “play nice with others” – this may only serve to isolate them more and make them feel poorly about coming to you with their complaint
The answer to whether you should take any immediate action even before the investigation begins depends on several things:
To the extent that the complainant or others may be in danger (whether perceived or real), it may be prudent to suspend the respondent with pay during the investigation. Beware of putting the complainant or respondents on suspension without pay because that could be construed as an imposition of disciplinary action before a determination of guilt has been made.
Ask yourself if there are any other precautions you could / should take in order to prevent further harm or deterioration in the relationship of the complainant and the respondent. For example, if you have multiple dental practices, will one of the parties be willing to work at the other practice for the duration of the investigation? Can their shifts be split up in such a way as to avoid them being in the same place at the same time?
Often times, complainants take stress leave either immediately before or soon after they lodge the complaint – in such a situation, you must allow the complainant time to recover and when they are ready, to participate in the investigative process. Failure of a complainant to participate because they are not able to (physically or mentally) is not cause for termination or other sanctions, and should not result in the investigator drawing a negative inference because of the absence.
- consider what issues / policies are in question and how they may impact the individuals or the workplace
- ask if anyone is in danger (immediate or otherwise)
- suspend staff without pay prior to investigating the complaint
- punish or draw negative inferences from a complainant’s going on sick leave before / after lodging the complaint
When preparing for the investigative process, there are several issues you must address:
Many dentists believe that an investigation conducted by the dentist themselves or the dentist in conjunction with the office manager is always the best (and it is certainly the most cost effective). However, depending on the facts of the complaint, the issues at hand, and the level of involvement of the dentist and the office manager, internal investigators are not always the best choice.
Possible choices of investigator include: the dentist, the office manager, other management-level employees, designated investigation team, external investigator (non-legal), external investigator (legal), etc.
Your choice should be made having consideration towards the following:
It should also be noted that two investigators may be better than one. Two investigators decreases the perception of bias while ensuring that there is always a witness during interviews and other fact-gathering processes.
Not all investigations should be treated / conducted in the same manner. Investigations that involve serious and criminal or quasi-criminal allegations such as theft, fraud, serious violence, embezzlement etc. will require a harder approach, whereas allegations of harassment may call for a “softer” approach as there may be subtle relationship and other nuances between co-workers which you may have to be sensitive about.
In order to be effective, an investigator (whether that is you or anyone else) must:
It is imperative that the respondent be given either a copy of the written complaint or sufficient particulars of the complaint in order to be able to respond. Failure to do so may result in an unfair investigation and a lack of procedural fairness, which could land you in hot water! In the case of C.R. v Schneider National Carriers, Inc., 2006 CanLII 532 (ON SC) the justice found that the complainant, C.R., having been summoned to a meeting without being provided with the particular facts of the complaint and merely asked to respond to general topics, was denied a careful and thorough investigation resulting in Schneider being found to have terminated him unjustly and having to pay termination costs of about $16,000.
Where a staff member makes a complaint but asks that they remain anonymous, you are certainly put in a tough situation. However, your response should be that you will do your best not to reveal their identity, but you may have to divulge information that would point to the complainant, so you cannot (and should not) promise anonymity.
In order to ensure that rumours and drama do not infect your office, you must stress the importance of confidentiality to the respondent and anyone else who is given notice and summoned to an interview as a witness in the investigative process. Due to the sensitive nature of workplace investigations, it should be stressed to the parties involved that failure to keep the matters discussed confidential may result in discipline up to and including termination.
- consider your options about who should investigate and how many investigators should be charged with the task
- ensure the investigator possesses all the attributes of an effective investigator
- conduct the investigation in the most appropriate manner
- provide the respondent with enough information to respond
- advise parties of their obligation to maintain confidentiality
- assume you, as the dentist employer, are the best person to conduct a workplace investigation
- promise complainants or other parties anonymity
When preparing your investigation plan, ensure that you follow all of your office policies / procedures, including conducting the investigation in a timely manner. Doing so will go a long way to structuring your investigation fairly and eliminating the perception of bias.
When conducting interviews, make sure you speak with the appropriate individuals, including the complainant, the respondent, witnesses and anyone else who may have knowledge of the facts leading to the complaint. Before interviewing any witnesses or other material persons, assure them that they will be protected from retaliation regarding their evidence.
Gather all relevant documentation, including e-mails, notes, written statements, accounting documents, etc. Also, be sure to make excellent notes on the steps taken during the investigation as well as the oral evidence obtained during interviews.
Parties called on to be interviewed may in some cases request representation (whether that be a support person or a lawyer). You are by no means obligated to allow a representative, but you should be aware that disallowing representation may drive a wedge between you and the interviewee, so it may be more effective to allow the representative but ensure that they are only there for support and all answers are coming directly from the party being interviewed.
During the investigation and fact-gathering process, maintaining trust and remaining neutral is very important. Parties will only give you information if they believe they can trust you will be impartial in making your findings.
- investigate the complaint in a timely manner
- conduct interviews with the complainant, respondent and any witnesses or other people who may have knowledge of the facts
- allow parties to bring a representative to the interview, so long as they are informed of the limited role of the representative
- remain neutral and impartial
- sidestep the office policy on how investigations will be conducted – even if doing so will save you time / money
- forget to tell interviewees that they will be protected from retaliation regarding the evidence they give
Once you’ve gathered all the evidence and done your interviews, it is time to weigh the evidence and make a decision. Reviewing the office policy on workplace violence and harassment may be helpful again at this juncture so you can decide, based on the evidence, if a violation of the policies has occurred.
Where oral / written evidence from any of the parties is contradictory, you may have to make an assessment about each person’s credibility – who was more believable and why.
When assessing the evidence, you should understand that the standard of proof you must apply is the civil one: “balance of probabilities”. For example, ask yourself the following question after gathering the evidence: “on the balance of probabilities, did the hygienist make unsolicited and unwarranted comments to the receptionist such that those comments constituted harassment according to our office policy?” If the answer is YES, based on the facts and statements gathered, then that is a signal that you should take some disciplinary measures towards the hygienist.
It should be noted however that in instances of very serious allegations (sexual harassment, theft, fraud, etc.), due to the implications of a negative finding after an investigation, there may be a need to be much more thorough and the standard of proof may need to be raised in order to ensure the respondent is treated fairly.
Once a decision is made, you have the hard task of deciding what, if any, disciplinary actions you will take against any of the parties. The only advice I can give you here is that the discipline should be proportionate to the crime. Whenever you are inclined to dole out discipline, ask yourself “can the same effect be achieved or the same message be sent to the offender or remainder of the staff by giving them a different / less harsh punishment?” If the answer is yes, then you should reassess the punishment.
- review the office policy manual one last time
- weigh evidence impartially and apply the correct standard of proof
- dole out discipline which is proportionate to the infraction
- make a decision based on your feelings or what’s most economical for the practice
- allow anything other than the facts to sway your decision
Once a decision has been made, it is prudent to prepare a final report to place in the staff files (even if it is a short or bullet point memo).
It is not necessary to provide the final report to the complainant or the respondent, if it will only serve to antagonize the parties, but it is a good idea to advise each of the parties of the following, in writing:
Where serious disciplinary action may be taken against the respondent, consider giving him/her an opportunity to respond to the final written decision of the investigator.
- draft a written memo about the investigation and the outcome
- provide the parties with a written statement about the outcome of the investigation
- provide the respondent with one last chance to respond to the findings
- assume the parties will know the outcome of the investigation
- breach confidentiality when advising parties about the outcome of the investigation
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or firstname.lastname@example.org.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or email@example.com.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or firstname.lastname@example.org.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or email@example.com.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or firstname.lastname@example.org.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.