WHEN AN INSPECTOR CALLS

The Duty of Physicians and Nurses to Cooperate

A physician or nurse who is contacted by a regulatory investigator may understandably be cautious about answering questions.

That caution is sensible. But simply refusing to participate can create a new problem.

Ontario legislation imposes significant duties on health professionals to cooperate with certain regulatory investigations. In some circumstances, failing to cooperate can itself amount to an offence or professional misconduct — even if the original allegation against the professional is ultimately not established.

The important distinction is this: Cooperating with an investigator does not require a physician or nurse to guess, speculate, agree with the investigator's interpretation of events or give up the right to obtain legal advice.

Ministry of Long-Term Care inspections

Consider a physician or nurse involved in the care of a resident at an Ontario long-term-care home.

The Ministry of Long-Term Care may investigate a complaint, critical incident or report concerning the resident's care under the Fixing Long-Term Care Act, 2021.

Section 150 gives inspectors broad powers. An inspector may inspect and copy records, demand the production of relevant documents, question people, make recordings in appropriate circumstances, conduct examinations or tests and obtain expert assistance.

The legislation goes further. Section 150(4) provides that every person must give all reasonable assistance to an inspector exercising powers or performing duties under the Act.

Section 153 creates an offence for hindering, obstructing or interfering with an inspector, destroying or altering a record that has been demanded, or failing to provide the assistance required by s. 150.

Fixing Long-Term Care Act, 2021 — inspection and enforcement provisions

That obligation is not limited to the long-term-care home itself. A physician, nurse or other person involved in the resident's care may fall within the inspector's investigative process.

Professional College investigations have their own cooperation requirement

A separate duty arises when the investigation is being conducted by a professional College such as the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario.

Under s. 76 of the Health Professions Procedural Code, an investigator may make reasonable inquiries of any person, including the member being investigated.

The same provision states that no person may obstruct the investigator or conceal, withhold or destroy something relevant to the investigation. Most importantly for the professional under investigation, s. 76(3.1) provides:

"A member shall co-operate fully with an investigator."

Regulated Health Professions Act, 1991 — Health Professions Procedural Code

That provision applies across Ontario's regulated health professions, including medicine and nursing.

Failure to cooperate can become a regulatory allegation in its own right. Recent CPSO and College of Nurses proceedings demonstrate that regulators continue to treat non-cooperation seriously.

What does "cooperate" actually mean?

In practical terms, cooperation can include responding to legitimate communications, preserving relevant records, producing documents that an investigator is lawfully entitled to obtain, assisting with the interpretation or production of records and participating in investigative questioning where required.

It also means not deliberately frustrating the investigation.

A professional should never alter a chart after learning of an investigation, destroy relevant documents, conceal information that must lawfully be produced or attempt to influence another witness's account.

The investigation itself can become more serious if the regulator concludes that a professional has interfered with the process.

Cooperation does not mean speculation

A duty to cooperate is not a duty to manufacture an answer.

Years may have passed since the clinical event under investigation. A physician or nurse may have little or no independent memory of a particular encounter.

In that situation, an accurate answer may be:

"I do not independently recall that conversation, but the chart records the following."

Or:

"I cannot reliably answer that from memory."

Or:

"That would normally have been my practice, but I cannot say that I specifically remember doing it on this occasion."

Those distinctions matter. There is a substantial difference between independent recollection, information derived from the clinical record and evidence about a professional's usual practice. Trying to be helpful by filling gaps in memory can unintentionally create inconsistencies that later become important.

Cooperation does not require agreement

An investigator may put a proposition to the professional:

"Would you agree that the resident should have been sent to hospital earlier?"

The professional does not have to agree simply because the question comes from an inspector. If the professional's position is that the clinical information available at the time did not require hospital transfer, they can explain that position.

Similarly, a physician can acknowledge that, knowing the eventual diagnosis, they would approach the case differently today without necessarily conceding that the care provided at the time fell below the appropriate professional standard.

Careful language is not obstruction. Accuracy matters.

The records matter

Before a substantive interview, the professional should ordinarily review the available contemporaneous records.

In a long-term-care investigation, that may include physician progress notes, nursing notes, medication administration records, laboratory and imaging results, physician orders, telephone or communication records, hospital transfer documentation and relevant policies of the home.

The purpose is not to prepare a rehearsed answer. It is to understand what the contemporaneous evidence actually shows before attempting to answer questions about events that may have occurred months or years earlier.

Some inspection reports become public

This is especially important in a Ministry of Long-Term Care investigation.

After an inspection, the inspector prepares an inspection report. Under s. 180 of the Fixing Long-Term Care Act, 2021, inspection reports are required to be published. Ontario's long-term-care Homefinder pages also make inspection reports available for public access.

Ontario long-term-care inspection information

Although individuals are commonly anonymized in published reports, an inspector's factual narrative may describe what a physician, nurse or other health professional did or said.

An answer given during what feels like an informal interview can therefore have consequences beyond the interview itself.

Can the professional speak with a lawyer?

Yes. The existence of a duty to cooperate does not prevent a physician or nurse from obtaining legal advice.

Whether counsel has an absolute right to be physically present during the interview is a separate question and depends upon the legislation governing the investigation. Ontario's long-term-care legislation is particularly unusual because an inspector presently has statutory authority to exclude any person from questioning. Other regulatory statutes expressly protect counsel's presence.

We discuss that issue in greater detail in our companion Insight: Right to Counsel During Regulatory Investigations

The important point is that seeking advice about one's legal obligations is not the same as refusing to cooperate.

What should a physician or nurse do when contacted?

Before providing a detailed statement, the professional should understand who the investigator represents, what statutory authority is being exercised, what event is under investigation and whether the professional is simply a witness or whether their own conduct is being examined.

The professional should preserve the relevant records and avoid making additions or retrospective changes to clinical documentation.

Where an interview is requested, the professional should determine whether it will be recorded, whether counsel will be permitted to attend and whether there will be an opportunity to correct or supplement information afterward.

Most importantly, the professional should answer accurately rather than expansively.

Cooperation means providing the information that the law requires. It does not mean guessing about events that cannot be remembered, accepting an inaccurate premise or making unnecessary concessions about professional standards.

Cooperation and self-protection are compatible

Professional regulation depends upon investigators being able to obtain reliable information. That is why Ontario law gives investigators substantial powers and imposes significant cooperation obligations.

But reliable information also requires careful answers.

A physician or nurse who understands the scope of the investigation, reviews the relevant records and obtains legal advice where appropriate is generally in a much better position to provide accurate information without creating avoidable regulatory problems.

Where an investigation concerns the professional's own conduct, professional reputation or potential College exposure, early advice can be particularly important.

This article provides general legal information and is not legal advice. The obligation to cooperate and the powers of an investigator depend upon the particular statutory regime involved.