NEWS ARTICLE

Responding to Complaints at the College of Massage Therapists of Ontario - What you need to Know

2018-08-08

When allegations regarding an RMTs professional conduct are made to the College of Massage Therapists of Ontario (CMTO), the member in question must respond. Dealing with a complaint can be highly stressful, particularly for individuals who are unfamiliar with the process. Based on our extensive experience representing massage therapists, here is a brief guide on how to respond to complaints. 
When the CMTO decides to proceed with a complaint, they send  the massage therapist a letter including the initial complaint as well as some basic information about the impending process. The Inquiries, Complaints and Reports Committee (ICRC) is the CMTO body that, upon the conclusion of the initial investigation, receives and reviews the entire complaint file. A panel of the ICRC, comprised of at least two massage therapists and one public member of the CMTO Council, will objectively determine the most appropriate course of action to address the RMTís conduct.

The ICRC will consider whether any further investigation is required, after which it may do any of the following: take no further action; caution the massage therapist either in writing or in person before the ICRC; inquire into the massage therapistís professional capacity; refer the matter to the Discipline Committee; or take any other appropriate action. With the exception of cases which are referred to Discipline or an incapacity investigation, the ICRC will provide the massage therapist with written reasons for its decision
Beyond a professional reprimand from the ICRC, the massage therapist must also consider the potential for public exposure. In the interest of increasing transparency in regulatory findings, details of the following ICRC dispositions are now posted on the Public Register: Specified Continuing Education or Remediation Programs (SCERP); oral or written cautions; and referrals to discipline or the fitness to practice committee. This information will become available on an RMTís public profile.

In accordance with section 25(1) of the Health Professions Procedural Code (HPPC), the CMTO must investigate and act on all complaints, subject to very limited exceptions. When a massage therapist receives a complaint letter from the CMTO, regardless of how inconsequential they may find the complaint and how much they may disagree, they must prepare a response. The CMTO requests that the massage therapist provide their response within 30 days of initial notification, but crafting an appropriate response letter takes time and effort. Working through the complaint process while facing the prospect of professional consequences can place a great strain on the massage therapist and their family. In such a trying situation, it is prudent to consider contacting legal counsel to help navigate this unfamiliar area. Once retained, a lawyer typically becomes the primary point of contact with the CMTO, submitting the massage therapistís response and dealing with any subsequent issues.

When preparing a written response, the massage therapist should consider the unique aspects of their case, including the complexity of the care provided, how long ago the care was provided, and the possibility that a lawsuit will be initiated in relation to the care. In our experience, it is usually helpful to organize the response as a clear and factual chronology of any occurrences Ė appointments, calls, and other events Ė that are relevant to the allegations.

Typically, the massage therapist does not have the opportunity to explain in person to the ICRC their decision-making process or the care that they provided to the complainant. The written response will likely be their only chance to make submissions to the ICRC. For this reason, it is particularly important that the massage therapistís response addresses all of the complainantís concerns. If the ICRC reviews the response and notes a failure to address any part of the complaint, they may not grant the massage therapist an opportunity to respond before disposing of the matter.

There may be instances in which a complaint has some merit. In such a case, it could be appropriate for the massage therapist to demonstrate in their written response that they have taken appropriate action to correct any issues. In the right circumstances, an acknowledgment by the massage therapist of their potential shortcomings could have a positive impact, demonstrating that they have gained insight. This kind of proactive measure may give the ICRC confidence that the massage therapist has a genuine desire to improve their practice.

The ICRC is required by section 26(2) of the HPPC to consider a massage therapistís prior history of complaints. If applicable, a printout detailing this history will likely be enclosed in the CMTOís initial complaint letter to the massage therapist. The massage therapist is able to comment and provide submissions on this prior history in their written response. According to the CMTO, submissions on prior history will not be provided to the complainant during the initial complaint process. However, should the matter proceed to a review board or court, the CMTO cannot guarantee that the complainant will not receive any submissions on prior history. In this situation, legal advice may assist the massage therapist in balancing their immediate concerns with any potential future liability.

Once finalized, the massage therapist or, if applicable, their legal representative submits the complaint response to the investigator. Assuming that consent has been provided by the patient, the massage therapist should enclose all patient records including charts, appointment book extracts relevant to the complaint and complainant, and photographs, as well as any financial information pertaining to the patient, such as financial ledgers, receipts, and insurance statements. If the massage therapist maintains electronic records, these should also be enclosed with the response on a USB key. Throughout this process, it is crucial that RMTs keep their records in compliance with the Massage Therapy Act, 1991 guidelines. Regardless of whether the ICRC determines that the care provided to a patient was appropriate or not, it may still evaluate the quality of the massage therapistís records. The massage therapist should thus retain a photocopy of all records in the patientís file.

Upon receipt of the massage therapistís written response, the investigator provides the complainant with a copy. The complainant then has the opportunity to make a written reply. Following this initial documentary exchange, there may be circumstances in which the investigator believes that a complaint may be resolved without providing the ICRC with written submissions. In such a case, the investigator may opt instead to have a verbal conversation with both the complainant and the massage therapist. Massage therapists have a duty to cooperate with the investigator. Everything provided to the investigator is recorded and submitted to the ICRC in the investigatorís report 

Some comparatively less serious complaints may be eligible for the CMTOís Alternative Dispute Resolution (ADR) process. Referral to ADR may occur early on in the complaint investigation process. In order to proceed, the ADR process requires the consent of both the massage therapist and the complainant. In ADR, the CMTO appoints a facilitator to mediate a resolution-oriented discussion between the massage therapist and the complainant. Any potential resolution achieved through ADR must still be ratified by the ICRC. ADR is unsuitable for any matters involving serious allegations of professional misconduct, such as sexual abuse or allegations of dishonesty or fraud.

With a serious complaint, the ICRC has the power to impose an ďinterim orderĒ on the massage therapist, which means that, during the duration of the ICRC investigation, the massage therapist may be subject to a number of restrictions, including license suspension. Under section 75 of the HPPC, the Registrar also has the power to appoint an investigator to investigate serious complaints. This section 75 investigator has broader powers to gather information than a standard complaint investigator.

The massage therapist and the complainant each have the opportunity to appeal any decision of the ICRC to the Health Professions Appeal and Review Board (HPARB). The HPARB will consider if the CMTOís investigation was adequate and whether the decision made by the ICRC was reasonable. As part of its review, HPARB will have access to all documents and information gathered by the CMTO at the complaint investigation stage. This information will then be disclosed to the massage therapist and the complainant. 

Reputation and livelihood are intertwined for massage therapists. Complaints to the CMTO are common, and while they can happen to anyone, a negative disposition from the ICRC can make a massage therapist stand out for the wrong reasons. Specialized legal counsel can assist RMTs with the preparation of their written responses and can help navigate the CMTO complaint process as a whole. Being subject to a complaint can be stressful and  has the potential to impact a massage therapistís career, so it is important that massage therapists be proactive, take the process seriously, and respond appropriately.











Written by Josh Koziebrocki -  principal lawyer and founder of Koziebrocki Law. He represents numerous massage therapists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445.

josh@koziebrockilaw.comwww.koziebrockilaw.com