Alberta Dental Hygienists: What You Need to Know about ACDH Disciplinary Action

If you are a dental hygienist facing a regulatory action by the Alberta College of Dental Hygienists (the “ACDH” or the “College”), you are likely filled with questions.

This article provides some essential information about the regulatory powers and disciplinary procedures of the ACDH. It also sheds some light on the intricacies of mounting a robust defence and safeguarding your rights when being subjected to the College’s disciplinary scrutiny.

As you read on, please keep in mind that legal representation can be crucial when facing regulatory challenges. You have worked hard to build your career, and you should not risk it alone. Contact Taylor Janis Workplace Law at our Edmonton or Calgary office to schedule a consultation and secure a tailored legal plan.

The Regulatory Role of the ACDH

Under the Alberta Health Professions Act (the “Act”) and its accompanying Dental Hygienists Profession Regulation, the Alberta College of Dental Hygienists is the regulatory college for the profession of dental hygienists in Alberta, and its regulated members have the exclusive right to use the their restricted title.

Under the Act, the ACDH has a mandate to serve and protect the public interest. It is responsible for establishing, maintaining, and enforcing the standards of registration, practice, competence, and ethics for dental hygienists. The College’s complaints and discipline process is one of the key ways to uphold these standards.

The Disciplinary Measures of the ACDH

The Act confers on Alberta dental hygienists the privilege to self-regulate. Along with this privilege, the ACDH is also conferred with broad powers and discretion to make legally binding disciplinary decisions against its regulated members. Upon determining that a dental hygienist has committed unprofessional conduct, the ACDH Hearing Tribunal may order one or more of the following against the disciplined dental hygienist:

• A caution or reprimand;
• Imposition of conditions on their practice permit;
• Suspension of their practice permit temporarily or until certain conditions are satisfied;
• Requiring them to satisfy competence requirements;
  • The disciplined dental hygienist may be required to receive counselling or treatment programs, complete specific courses of study, or obtain supervised practical experience within a fixed period, during which their practice permit may be suspended.
• Cancellation of their registration and practice permit;
• Repayment of improper fees received from the complainant;
• Recovery of certain expenses incurred during the disciplinary process from the disciplined dental hygienist;
• A fine not exceeding $5,000 for each finding of unprofessional conduct and not exceeding $25,000 for the aggregation of all unprofessional conduct found at one hearing; and                          
• Any other order deemed appropriate for the protection of the public.

However, the list above does not give a comprehensive understanding of all the potential consequences of being disciplined, this is because:

• Under the Act, the ACDH can order somewhat “novel” disciplinary measures for the protection of the public.
• The College can seek to enforce its disciplinary measures by ordering additional discipline, commencing debt actions or applying for court injunctions. Thus, non-compliance with a disciplinary order may lead to further legal liabilities.
• Where a matter raises a reasonable belief that a criminal offence has been committed, the Hearing Tribunal must forward its written decision to the Minister of Justice, opening up potential for further legal complications.

ACDH Discipline Can Be Career-Altering

An adverse disciplinary decision by the ACDH may put a dental hygienist’s career, finances and reputation in serious jeopardy.

A severe disciplinary measure can threaten a dental hygienist’s livelihood and professional standing. Even a seemingly “lesser” disciplinary measure, such as a requirement to complete a course of study within a fixed period, can be highly disruptive to your professional and personal life.

Being disciplined may also result in widespread and irrecoverable reputational damage.

Under the Act and the ACDH Bylaws, the ACDH must publish and distribute its final disciplinary decisions. Moreover, information related to a disciplinary suspension, cancellation or condition imposed on a practice permit must be published and forwarded to out-of-province regulators for dental hygienists, affecting the long-term career prospects of the disciplined dental hygienist.

Assess and Mitigate Risks with Legal Advice

ACDH disciplinary orders have legally binding effects and can be career-altering. Regulatory actions are intricate, and the factual and legal issues involved can often be contentious. When under the college’s disciplinary scrutiny, you should not overlook the risks, even if the allegations are seemingly unfounded or trivial.

Therefore, if you are expecting a regulatory action, you should promptly obtain legal advice and have your lawyer assess your case.

Taylor Janis Workplace Law is committed to providing practical and transparent legal advice. If the risks are substantial, we can provide thorough legal representation. If the risks are minimal, our advice can give you the peace of mind. Contact us at our Edmonton or Calgary office today to schedule an initial consultation.

The Disicplinary Process Explained

The disciplinary process of the ACDH involves a sequence of escalating procedures. However, even the early stages of a disciplinary process can be highly complex, consequential and disruptive to your professional and personal life.

It is highly advisable that you engage legal representation early so that you have adequate legal support for navigating the procedural complexities and minimizing unnecessary risks.

Complaints

Any person can file a complaint with the ACDH against a dental hygienist. The College can also initiate a disciplinary process on reasonable grounds as if a complaint has been received, if it believes that a regulated member has committed unprofessional conduct.

Moreover, under certain circumstances, a fellow dental hygienist or the employer of a dental hygienist has a positive duty to report to the College regarding their concerns about the conduct of a regulated member of the ACDH.

Therefore, a complaint does not necessarily need to come from a patient, and it is not the only way to trigger a disciplinary process.

The ACDH Complaints Director may only dismiss a complaint if it is vexatious, frivolous or lacks factual merit. Otherwise, they must initiate an investigation or facilitate an investigation.

Investigations

An unresolved complaint or a complaint deemed unresolvable will result in an investigation. A dental hygienist under investigation is referred to as an investigated person and will normally be notified of the particulars of the allegation. During an investigation, you have an obligation to cooperate, but also a need to avoid inadvertently jeopardizing your case.

The investigatory measures available to the ACDH are broad, and an investigator can do one or more of the following:

• Require the investigated person to answer questions under oath;
• Require the investigated person to disclose documents, information and/or evidence relevant to the investigation; and
• Enter the investigated person’s premises for practice.

Under certain circumstances, the ACDH may also:

• Apply for a court order to enforce its investigatory measures.
• Temporarily suspend or place conditions on the investigated person’s practice permit.

Hence, an investigation can be highly intrusive and disruptive to the investigated person’s professional and personal life.

When an investigation is eventually completed, unless the complaint is dismissed for being trivial, vexatious or factually meritless, the investigated matter will be referred to the ACDH Hearing Tribunal.

When under investigation, legal representation can be crucial for avoiding potential legal pitfalls while remaining cooperative. It can also be integral to preparing a robust response to the allegations, which may discourage a frivolous, vexatious or meritless matter from being processed further, securing a favourable and expedited resolution.

Hearings by the Hearing Tribunal

A hearing by the ACDH Hearing Tribunal is highly consequential, as it determines whether the allegations are true, whether the alleged conduct constitutes unprofessional conduct, and/or the appropriate disciplinary sanctions. A finding of unprofessional conduct will result in binding disciplinary orders.

Facing a hearing can be an intensely intimidating experience because:

• A hearing is a quasi-judicial and adversarial proceeding:
  • Both parties (the ACDH vs. the investigated person) have a statutory right to counsel.
  • Decisions are based on the relative strength of the parties’ factual and legal submissions.
• An investigated person may be ordered to testify under oath:
  • If you testify, you may be examined (intensely scrutinized with questions) under oath.
  • Failure to cooperate may result in severe legal consequences.
• The time for preparation is limited:
  • A hearing would normally be scheduled within 90 days after a complaint has been referred to the Hearings Director.
  • The notice to attend and particulars of the matter can be given as late as 30 days before the hearing.
• A hearing may have profound reputational effects:
  • A hearing is presumed to be open to the public unless one of the limited legal exceptions requires it to be held in private in part or entirely.
  • Reputational harm may occur before a final verdict is reached, especially if the investigated person is under-prepared or acts in ways prejudicial to themselves.

Extensive preparation is often necessary for securing a favourable outcome at a hearing, and awareness of common pitfalls is crucial for minimizing reputational damage. Our strongest recommendation is that you exercise your statutory right to counsel if you are facing an ACDH disciplinary hearing.

Appeals

If an investigated person believes a hearing decision is biased or unfair, they can appeal the decision to the ACDH Council, and they can further appeal the ACDH Council’s decision to the Alberta Court of Appeal.

However, an appeal should be seen as a last resort, and the preferred approach is to engage legal representation early and secure a favourable outcome at the outset. This is because:

• It is a formidable task to have a decision overturned:
  • The appellate standards are high and subject to stringent legal and evidentiary thresholds. A later section of this article will discuss the appellate standards in depth.
  • Courts are required to pay deference to statutory regulators out of respect for legislative intent, following the Supreme Court of Canada decision Vavilov.
• During an Appeal, the detriments of a disciplinary order may persist:
  • An appeal does not automatically suspend the enforcement of a disciplinary order.
  • Even if an appeal is successful, the remedy might be that the matter is sent back to the ACDH to be redetermined.
• An Appeal is legally intricate and technical:
  • An appeal is not a rehearing of the allegations, nor an opportunity for an appellant to reargue their case.
  • Normally, the scope of an appeal is limited to highly technical issues concerning the fairness of the original decision.

Given the challenging and intricate nature of an appeal, the value of legal representation is eminently clear if an appeal becomes necessary. However, the preferred approach to disciplinary proceedings is a proactive one: you should obtain legal representation to secure a favourable outcome at an earlier stage.

Voluntary/ Alternative Resolutions

There are alternative ways to resolve a complaint without going through an entire hearing process.

• Before a complaint is referred to the Hearing Tribunal, the Complaints Director may refer the matter to an alternative complaint resolution process. This is a voluntary process similar to mediation, where the complainant and the investigated person can reach a voluntary settlement.
• Before the Hearing Tribunal makes a factual determination regarding the alleged unprofessional conduct, the investigated person may admit some or all of the allegations. If accepted, such an admission can substantially shorten the fact-finding phase of the hearing.

However, these are consequential strategic decisions, and should be approached with legal advice, because:

• A settlement agreement is normally legally enforceable.
  • You need to ensure that its terms and conditions are fair and reasonable to you, based on a comprehensive review of all relevant legal and factual factors.
• An admission of unprofessional conduct does not conclude the disciplinary process.
  • A hearing may be necessary to determine the appropriate disciplinary measures.
• There are reputational implications.
  • Decisions based on an admission are subject to the same publication and notification requirements and policies as any other disciplinary decisions.
  • According to its Bylaws, the college must publish summaries of complaints resolved through a settlement agreement.
• An admission of unprofessional conduct largely forecloses an appeal on grounds of erroneous fact-finding.

A voluntary settlement or admission may be advantageous under the right circumstances, but it is a strategic and consequential decision. Before making such a decision, you should have your lawyer comprehensively review your case first.

Engage Legal Representation Promptly

Even the early stages of a ACDH disciplinary process can be highly complex, consequential, and disruptive to your career and personal life. Moreover, the reputational effects often start to emerge when the process commences, even before a final verdict is reached.

Throughout all stages of a disciplinary process, you need to avoid inadvertently jeopardizing your case, and you should also avoid settling a defensible case on unreasonable terms.

When you are expecting or undergoing a disciplinary process, you should engage legal representation promptly. A lawyer can provide valuable legal support to navigate the complex procedures, make legally informed decisions and streamline the process where possible and reasonable.

The experienced lawyers at Taylor Janis Workplace Law are not only tenacious advocates but also resourceful problem solvers. For any questions or concerns about an upcoming or ongoing ACDH disciplinary procedure, contact Taylor Janis today to schedule a consultation.

*The procedures cited above may vary if the alleged unprofessional conduct is related to the incapacity of the regulated member, sexual misconduct, or the procurement or performance of female genital mutilation.

The Intricacies of Mounting an Effective Defence

An effective defence is often essential for success at a hearing, and a robust response to an investigation can lead to a favourable early resolution.

Mounting an effective defence requires more than presenting your perspectives on the allegations. It often requires resourcefully and precisely applying legal authorities, supporting your factual positions with robust evidence, and enhancing the overall persuasiveness with skillful advocacy. This can be especially true when the matter involves complex or contentious factual and legal issues.

Precise Application of Legal Rules:

Under the Act, unprofessional conduct is disciplinable and captures a wide range of conduct:

• Displaying a lack of knowledge, skill or judgment when providing service;
• Contravention of applicable legislation, code of ethics or standards of practice;
• Providing dental hygiene services without an appropriate practice permit or registration, or in ways contravening the conditions imposed on a practice permit;
• Non-compliance with an investigatory request or disciplinary decision of the ACDH; and
• Conduct that harms the integrity of the profession of dental hygienists.

However, the above is not a closed-ended list of all types of conduct that are disciplineable, nor does it provide a full-pictured understanding of how disciplinary decisions are made. When formulating a legal defence, it is important to know:

• There are multiple sources of legal rules specifically applicable to dental hygienists:
  • Any contravention of the Act, its accompanying regulations, the ACDH Bylaws, the ACDH Code of Ethics, or the ACDH Standards of Practice can be unprofessional conduct under the Act.
  • Legal expertise can be essential for correctly interpreting and referencing legal rules from all these sources.
• The ACDH can consider other legal authorities:
  • A regulated member of the college, like everyone else, must act lawfully at all times. Correspondingly, the ACDH may consider other sources of legal rules and principles when adjudicating a matter, especially when the issue is complicated or nuanced.
  • For example, in this published disciplinary decision, the ACDH adjudicated a disciplinary matter with reference to the Personal Information Protection Act.

Resourceful and precise application of a wide range of legal authorities is often integral to an effective defence. Legal rules and principles are often highly nuanced, particularly when applied to the facts or when interacting with each other. Therefore, preparing a sound legal argument may require considerable legal expertise and research skills.

Building a Robust Factual Position

In ACDH regulatory proceedings, the perspectives of the parties often diverge, and the facts are often intensely disputed. Ultimately, decisions are made based on the relative strength of competing evidence from both parties.

Legal representation can be instrumental in building a robust evidentiary basis and mounting an effective factual defence. This is because:

• Pieces of evidence are not equal in their probative value, factual relevance and legal materiality.
  • Skillful organization and presentation are often crucial for showcasing the strength and relevance of your evidence.
  • Your legal counsel can flag problematic opposing evidence for being unreliable or irrelevant, thus enhancing the chance of a favourable outcome.
• The ACDH Hearing Tribunal has discretion to admit or exclude pieces of evidence and weigh them differently.
  • The Hearing Tribunal is not bound by the courts’ rules of evidence. It has a degree of discretion in admitting, excluding and weighing evidence, and this discretion should be exercised fairly.
  • A lawyer can highlight evidence that might otherwise be underconsidered, as well as object to opposing evidence that is unduly prejudicial to you, thus minimizing the chance of unfair fact-finding.

Upholding Fairness through Legal Advocacy

A lawyer, as your advocate, will tenaciously examine the strengths and flaws of each argument. This can be vital to the persuasiveness of your defence.

Your legal advocate also assists the adjudicator in making a fair decision, for example:

• A skillful advocate can highlight hidden but important factors which may otherwise be overlooked.
  • This can be especially instrumental when complex or principled analysis is engaged.
  • For example, the “beneficence and non-maleficence” principle under the Code of Ethics requires a dental hygienist’s service to benefit patients and minimize harm. A dental hygienist can exercise their professional judgement and refuse to provide service when the risks outweigh the benefits. Whether such a judgment is competently exercised can be a question that requires a full-pictured analysis of all the relevant variables, which may not necessarily be obvious to the adjudicators.
• A resourceful advocate can assist the decision-makers with issues that are not within their expertise.
  • Members of the Hearing Tribunal may not necessarily possess the same level of judicial training as a judge. When a legal rule or principle is at issue, legal counsel can play a crucial role in supporting their efforts to make fair decisions.

Moreover, when being subjected to the ACDH’s regulatory discretion, your legal advocate can play a vital role in safeguarding your administrative law rights, which are the focus of the next section of this article.

Taylor Janis Workplace Law Advocates for You

You have faced many challenges throughout your career as a dental hygienist, but you should not face a regulatory challenge alone. Obtaining legal counsel can be crucial to protecting your professional future.

Taylor Janis is committed to defending our clients’ best interests in regulatory actions. Please do not hesitate to contact us if you need a skilled and tenacious advocate.

Your Rights When Facing Regulatory Challenges

During a ACDH disciplinary process, every procedure engages your administrative law rights. These rights have common law and even constitutional foundations.

Safeguarding these rights is integeral to upholding fairness. Therefore, you should be informed of your rights and prepared to safeguard them. The recommended approach to these ends is to retain legal counsel early and throughout the disciplinary process, so that you have a legal advocate to spot, flat and object to potential infringements as they emerge.

Your Rights to Fairness

Fundamentally, your rights when facing regulatory actions are informed by the principles of natural justice and fairness, which can be difficult and abstract legal concepts to grasp. It is often equally difficult to apply these principles to the circumstances, especially without legal guidance.

For a brief informational overview, you have three broad but distinct rights:

• Right to substantive fairness:
  • This means a decision and its factual and legal reasoning must meet certain standards.
  • The Act provides that a final disciplinary decision made by the ACDH Council can be appealed to the Alberta Court of Appeal. Hence, the standards here are “no palpable and overriding errors” in fact-finding and “correctness” in legal reasoning (Vavilov; Housen).
• Right to procedural fairness:
  • This right is about due process. At its core, this means everyone is entitled to know the particulars of the allegations against them and have appropriate opportunities to make a full answer and defence.
  • The due process can be found under the Act and the ACDH Bylaws.
  • A lack of due process or due process conducted unfairly can both result in infringements. Hence, spotting an infringement of this right may require both legal knowledge and in-depth analysis of the circumstances of a procedure.
• Right to unbiased decision makers
  • The legal standard is that decision makers should not give a reasonable apprehension of bias to a reasonable bystander observing the entire decision-making process.
  • Reasonable apprehension of bias is a high legal and factual threshold: it is not any apprehension of bias.

The applicable standards for overturning a final disciplinary decision made by the ACDH Council are the same as the appellate standards on appeal from lower courts. Moreover, courts are required to follow the common law principle of paying deference to regulatory decision makers out of respect for legislative intent.

Hence, it is highly challenging to address infringements after a disciplinary decision is made. The preferred approach to safeguarding your rights is to retain ongoing legal support during a disciplinary process. Having a legal counsel engaged throughout means they can spot, flag and object to potential infringement as they arise, which can be essential for upholding your rights.

Early and Ongoing Legal Representation

Your rights are constantly engaged when facing a disciplinary process. Once it is made, it is a formidable task to overturn a disciplinary decision and address infringements through an appeal.

Our strong recommendation is that you retain legal counsel early and keep them involved throughout the entire ACDH disciplinary process, protecting your rights at all stages.

Taylor Janis Workplace Law is dedicated to advocating for the rights of our Clients. Contact us today to schedule an initial consultation.

Choosing a Lawyer You Can Trust

When facing an ACDH regulatory action, seeking legal help immediately can be crucial for safeguarding your career and reputation.

Taylor Janis Workplace Law understands the intricacies of regulatory actions. With a proven track record in delivering favourable results, we also appreciate that every case and each client’s needs are different. This is why we are committed to always offering tailored legal plans.

An initial consultation is an opportunity for us to assess the potential risks and offer practical legal advice. If there is a substantial risk, we can provide thorough and ongoing legal support. If the risk is minimal, our transparent risk assessment can give you the peace of mind.

Do not hesitate to seek help if you are facing a disciplinary action. Contact Taylor Janis’s Alberta offices in Edmonton or Calgary to schedule a consultation.

Frequently Asked Questions

How Long Does a Typical ACDH Disciplinary Process Take?

The length of the process depends on many factors, including the legal and factual merits and complexity of the matter. A vexatious or frivolous complaint is likely to be dismissed fairly quickly. However, if a matter leads to an investigation or hearing, it can take a few months or even over a year to resolve. How you respond to the situation is also critical. A robust and legally informed response can potentially lead to an expedited resolution. If you are concerned about the disruptive effects of the process, you can consult an experienced lawyer at Taylor Janis.

Can I Continue Working During an ACDH Investigation?

The ACDH can temporarily suspend or place conditions on your practice permit before a hearing decision is made. You should strictly follow the college’s direction; otherwise, you may receive additional discipline. However, the College should not exercise its regulatory powers arbitrarily or unfairly. You can legally challenge an interim suspension or condition. Contact Taylor Janis if you have any questions or concerns about your ability to continue working during a disciplinary process.

Will All ACDH Complaints Lead to a Professional Disciplinary Hearing?

Not all ACDH complaints will lead to a disciplinary hearing by the Hearing Tribunal. A robust response early on can lead to an expedited and favourable resolution. Under certain circumstances, a voluntary resolution can be advantageous, too. You can consult with us if you want to explore your options.

Do I Need Legal Representation For Trivial or Unfounded Complaints?

Even when a complaint is seemingly trivial or unfounded, it is still a good idea to at least talk to a lawyer first. A lawyer is equipped with the legal knowledge and research skills to assess the actual strength and gravity of a claim and can more accurately assess the potential risks. Having a lawyer on your side also shows that you are taking the situation seriously and are prepared, which may help resolve vexatious or meritless complaints early, thus minimizing the disruption and stress. If a complaint is truly unfounded, at least you get peace of mind knowing the risk is minimal after a consultation with a lawyer.

Will Hiring a Lawyer Escalate the Situation with the ACDH?

A competent lawyer should know how to avoid unnecessary escalation, and the ACDH should not treat you arbitrarily or unfairly simply because you are represented. Remember, you have administrative law rights to fairness and a statutory right to counsel at a hearing. From our experience, having legal counsel shows that you are taking the matter and your integrity seriously, and this may discourage frivolous or vexatious complaints. Hence, a robust response from a lawyer at an early stage of the disciplinary process can lead to its timely resolution, as opposed to escalation.

Does My Professional Liability Insurance Provide Me with Legal Support in Regulatory Actions?

The ACDH Bylaws require all practicing dental hygienists to maintain professional liability insurance coverage. However, your insurance plan may or may not include legal assistance or coverage for legal fees in regulatory actions. If you have any questions about your insurance coverage, we can review it with you during an initial consultation.

Conclusion

If you are facing an ACDH disciplinary action, promptly securing legal defence is crucial to protecting your career and reputation. The ACDH has statutory powers to make legally binding disciplinary decisions, and its disciplinary measures can put a dental hygienist’s finances, career and reputation in serious jeopardy. The disciplinary procedures of the ACDH can be highly complex, consequential and disruptive, and your rights are constantly engaged when undergoing these procedures. Hence, early engagement with legal representation is highly recommended, so that you have sufficient legal support to navigate the complex procedures, formulate an effective defence and safeguard your rights.

Conclusion:

• Health Professions Act, RSA 2000, c H-7
• Dental Hygienists Profession Regulation, Alta Reg 255/2006
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235
• Bylaws of The Alberta College of Dental Hygienists
• ACDH Code of Ethics
• ACDH Standards of Practice
• Hearing Decision Dated Jan 22, 2021, the Hearing Tribunal of the ACDH

Resources for Readers:

• Past ACDH Complaints Decisions
• ACDH Complaint Process

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