Complainant v. College of Physicians and Surgeons of British Columbia

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1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. College of Physicians and Surgeons of British Columbia DECISION NO HPA-029(a) July 3, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT BEFORE: Roy M. Kahle, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on May 16, 2018 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Michelle Stimac, Counsel Brett Weninger, Counsel AN APPLICATION UNDER SECTION 42 OF THE ADMINISTRATIVE TRIBUNALS ACT. I BACKGROUND [1] On February 14, 2016, the Complainant complained to the College (the Complaint ) that the Registrant, his treating physiatrist, had failed to provide him with a proper and complete musculoskeletal examination. A physiatrist is a physician who specializes in physical medicine and rehabilitation, dealing with the evaluation and treatment of patients whose functional abilities have been impaired. As such, the Complainant felt that the inadequate examination delayed his treatment and contributed to his ongoing pain. The Complainant also alleged that the Registrant had discriminated against him because he was HIV positive. [2] The College s Inquiry Committee issued its disposition report on January 3, 2017, concluding that the Registrant s consultation with the Complainant appeared to be rushed and inadequate given the Complainant s complex presentation. The Inquiry Committee also concluded that the Registrant s conduct with the Complainant was not

2 influenced by the Complainant s HIV status. The disposition report directed that the matter be concluded per s.33(6)(b) of the Act with a letter to the Registrant reminding him that, in elective circumstances, a rescheduled full assessment is preferable to a truncated partial assessment that leaves the patient feeling unsatisfied. [3] On March 7, 2017, the Complainant requested that the Review Board review the College s disposition, as he felt that the decision was not reasonable and that the College should temporarily suspend the Registrant and require him to take remedial training. [4] The Review Board, on July 26, 2017, directed that this matter proceed to a Stage 2 hearing and invited submissions from the College and the Registrant. [5] On August 11, 2017, the College requested that the Review Board place the matter in abeyance to allow the College to reconsider the matter. That request was granted and the Review Board adjourned this matter until December 15, [6] The Inquiry Committee provided its final post adjournment disposition letter on December 4, In that disposition, the Inquiry Committee found that there had been one prior complaint against the Registrant, which it found to be relevant to the Complaint and concluded that, on the basis of that prior complaint, a concluding interview with Registrar Staff was the appropriate means of addressing the concerns raised in this matter. The inquiry Committee also reaffirmed that, upon a complete review of the Registrant s file, there had been no previous complaints alleging discrimination based on HIV status. [7] The Complainant, in December 2017 advised the Review Board, that, notwithstanding the findings and conclusions set out the disposition letter of December 4, 2017, he wished to proceed with the review. [8] On February 13, 2018, the Review Board received an application from the College seeking redaction of certain portions of the College s record of investigation (the Record ) pursuant to s.42 of the Administrative Tribunals Act, (the ATA ),Rule 18 of the Health Professions Review Board Rules of Practice and Procedure (the Rules ) and Health Professions Review Board Practice Directive #3. [9] On March 14, 2018, the Registrant filed a similar application. II THE SECTION 42 APPLICATION [10] The College application seeks redaction of the following portions of the Record: Excerpts from pages 6, 7, 14, 15, 16, 84 references to prior complaints against the Registrant that were concluded without criticism. [11] The Registrant supports the College application and, in addition, seeks the complete removal from the Record of the following:

3 (a) August 23, 2017, letter to the College from Counsel for the Registrant requesting complete history of prior complaints (page 3); (b) September 5, 2017, letter from the College to Counsel for the Registrant enclosing complaint history summary (page 4-7), and (c) Any references to the Registrant s prior complaints that were concluded without criticism in the Record. [12] Both the College and the Registrant also seek the following order: III (a) The Complainant will be advised in writing that the complaints history disclosed in the Record must not be used for any purpose other than this review, and must not be copied, disclosed or used for any purpose other than the review; and (b) The Complainant will be required to sign an agreement to return the portions of the documents that are to be disclosed that reference past complaints to the Review Board when the review is complete. LEGAL FRAMEWORK [13] Section 42 of the ATA allows a Review Board to exercise discretion in determining what should be disclosed to various parties in an application for review: The tribunal may direct that all or part of the evidence of a witness or documentary evidence be received by it in confidence to the exclusion of a party or parties or any interveners, on terms the tribunal considers necessary, if the tribunal is of the opinion that the nature of the information or documents requires that direction to ensure the proper administration of justice. [14] This broad discretion is guided by the proper administration of justice principles. Review Board Decision No HPA-0027(a) outlines these: (a) parties normally have the right to advance or defend a case based on access to the same information, though this inclination against star chamber proceedings is not absolute; (b) occasions may arise where evidence is so sensitive that an exception to the usual rule must be made because the risk to the administration of justice caused by its disclosure to one or more parties outweighs the benefits of the usual principle of full disclosure; (c) s.42 of the ATA does not articulate a lax test. The nature of the information or documents must be such that the Review Board is of the opinion nondisclosure is required to ensure the proper administration of justice; (d) rulings made under s.42 of the ATA must be sensitive to the nature, purpose and context of the statutory scheme of the Act into which s.42 is integrated; and

4 (e) the Act promotes transparency and accountability by making the Complainant a full, active party to the review with a legitimate interest as a full party to challenge a broad range of dispositions. [15] In other words, withholding information from any party is an exception rather than the rule. However, there are circumstances where the proper administration of justice is not served through complete disclosure. [16] I find further guidance in Rule 18 of Rules: If the college is of the opinion that information or documents contained in the record ought to be considered by the review board to the exclusion of one or both parties under s. 42 of the ATA, the college is required to identify the information or documents and the basis for the s. 42 application at the same time as the college produces the record to the review board. [17] Review Board Practice Directive No. 3 clarifies the types of information that could be potentially prejudicial and states as one of its principles that the proper administration of justice requires an exception to the general principle that where legislation gives a party the right to challenge a decision, that person has the right to a fair process. Fairness ordinarily requires the parties to have access to the same information unless there is a strong basis for uneven disclosure. [18] Practice Directive No. 3 states criteria for determining what amounts to the proper administration of justice including: IV (a) the importance of the individual s interests at stake on the review and the impact of nondisclosure on their ability to advance their case; (b) the importance of the countervailing privacy or other interest sought to be protected and the impact of disclosure on that opposing interest; and (c) whether there are any reasonably available solutions that would address privacy or other interests while enabling disclosure. SUBMISSION OF THE PARTIES [19] The College submits that the information sought to be redacted pertains to prior complaints against the Registrant that were adjudicated without regulatory criticism. Disclosure of these complaints would be highly prejudicial to the Registrant and would have limited probative value. Moreover, none of the information sought to be redacted was considered by the Inquiry Committee in the disposition of this matter. [20] The Registrant supports the submissions of the College and, in relation to the additional material sought to be redacted, submits the following: (a) The August 23, 2017, Letter (correctly dated August 21, 2017) makes no reference to the complaint and should not form part of the College investigation file and should be excluded from the Record. The letter was sent independently of the complaint and is a personal request to the College unrelated to the complaint.

5 (b) The September 5, 2017, letter from the College enclosing the complaint history summary is the College s response to the August 21, 2017, letter. This letter and enclosing summary contains personal information of the Registrant unrelated to the Complaint and therefore should also be excluded from the Record. In the alternative, should the Review Board not accept full redaction of the document, the portions of the letter and enclosures and any further statements in the Supplemental Record that contain unsubstantiated complaints should be redacted. [21] The Complainant submits that all complaints against the Registrant ought to be disclosed to him in the Record because the College has a flawed investigatory process and hence prior complaints against the Registrant may not have been investigated and disposed of properly. V DISCUSSION AND ANALYSIS [22] Section 50.6(6) of the Act states that a review by the Review Board is a review on the record. The Rules define the record for purposes of a complaint disposition review: The record, for the purposes of a complaint disposition review, consists of the written decision of the inquiry committee and the contents of the college s investigation file, whether or not the entire file was placed before the inquiry committee when the decision under review was made. [23] Rule 3(1) defines investigation file as meaning all records, documents, s and things in the custody or control of the College that are relevant to the matter being reviewed, regardless of whether they have previously been collected and organized into a single file and even if not placed before the Inquiry Committee. [24] The obligation to disclose as set out in the Rules must be considered in light of the provisions of s.42 of the ATA, which allow for unequal disclosure between the parties insofar as it serves the proper administration of justice. [25] In this case the information sought to be redacted by the College, and for the most part by the Registrant, pertains to prior complaints against the Registrant which the College adjudicated without regulatory criticism of the Registrant. That information did not form part of the material considered by the Inquiry Committee in rendering its disposition. As such it is not relevant to the Complainant s case and not necessary for the proper administration of justice. [26] Moreover, any potential obligation to disclose the information because it is part of the Record is outweighed by both the confidentiality aspects of the information as well as the potential prejudice to the Registrant occasioned by the release of the information. [27] The Registrant also seeks redaction of the August 23, 2017, letter he wrote to the College requesting a copy of his prior complaint history. That request is denied in that the letter does not contain any private information. While the letter has little probative value, there is no valid reason as to why it should be excluded. While the Registrant

6 maintains that this letter was written independent of the complaint and constitutes personal unrelated correspondence, I note that the letter was written subsequent to the Registrant being informed by the College that the Inquiry Committee was revisiting its disposition. That revisit was precipitated by the Complainant s statement of points which raised the issue of the Registrant s prior complaint history. Having been apprised of the reason for the revisit, it is logical to assume that the Registrant knew, prior to the August 23, 2017, letter that his complaint history was at issue. [28] I also decline to redact or exclude from the Record the September 5, 2017, letter which enclosed the Registrant s complaint history summary. The letter in itself, without the enclosed complaint history, is administrative only, and does not contain any information the disclosure of which would contravene the proper administration of justice. [29] I have considered the request by both the College and the Registrant that the Complainant be advised in writing as to the overall confidentiality of the Record and the prohibition against copying or disclosing the Record, or parts thereof, for any purpose outside this review. Additionally, both the College and the Registrant have requested that the Complainant sign an agreement to return the documents disclosed in the Record pertaining to the Registrant s complaint history, at the completion of this review. These requests are reasonable and are consistent with Rule 20 of the Rules which mandate that the Record is confidential and must be used for the purpose of the Review only. [30] I have considered the submissions of the Complainant and find no merit in those submissions. The Review Board has no jurisdiction to rule on prior investigations or decisions made by the Inquiry Committee that are unrelated to this complaint. VI CONCLUSION [31] I order that the following documents/reference contained in the Record not be disclosed to the Complainant. Excerpts from pages 6, 7, 14, 15, 16 and 84 of the Record referencing prior complaints against the Registrant and which were concluded without criticism of the Registrant. That the Complainant be advised in writing, that the Record, and specifically the complaints history disclosed in the Record must not be copied, disclosed or used for any purpose other than the review; The Complainant be required to sign an agreement to return the documents at issue, pages 6, 7, 14, 15, 16 and 84 which identify the disclosed complaint record, to the Review Board upon completion of the Review. (see Rule 20 and Review Board Decision No HPA-0027(a) paras. [83-84] and Decision 2010-HPA-0004(a) at para. [7.])

7 [32] The Registrant s application to redact completely the letters of August 23, 2017, and September 5, 2017, (without the attached complaints history) is denied. [33] I further order that a copy of this decision be delivered to the parties and that a copy of the Record, redacted in accordance with this order be held in abeyance for 14 days from the date of this decision to permit the parties time to advise the Review Board that judicial review of this decision is being sought, should any of them wish to pursue that option. Roy M. Kahle Roy M. Kahle, Panel Chair Health Professions Review Board

British Columbia. Health Professions Review Board. Rules of Practice and Procedure for Reviews under the Health Professions Act, R.S.B.C. 1996, c.

British Columbia. Health Professions Review Board. Rules of Practice and Procedure for Reviews under the Health Professions Act, R.S.B.C. 1996, c. British Columbia Health Professions Review Board Rules of Practice and Procedure for Reviews under the Health Professions Act, R.S.B.C. 1996, c. 183 These rules for reviews to the Health Professions Review