Complainant v. The College of Physicians and Surgeons of British Columbia

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of British Columbia DECISION NO HPA-233(a); 2016-HPA-234(a) (GROUP FILE: 2016-HPA-G24) June 29, 2017 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, 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 Family Physician REGISTRANT 1 AND: A Gastroenterologist REGISTRANT 2 BEFORE: Herbert S. Silber, Q.C. Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on March 17, 2017 APPEARING: For the Complainant: Self-represented I DECISION HEARING DECISION [1] This complaint has been referred to a Stage 1 hearing. At this stage the following results are possible: (a) I may confirm the Inquiry Committee disposition under s.50.6(8)(a) of the Health Professions Act, R.S.B.C. 1996, c. 183 (the Act ) if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or (b) I may determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant.

2 [2] Having reviewed the record of investigation provided by the College (the Record )I have determined that I am able to adjudicate this application for review on the merits in accordance with para. [1](a) and I have concluded this hearing at Stage 1. II INTRODUCTION [3] The Complainant applied under the Act to review a disposition of the Senior Deputy Registrar of the College, on behalf of the Inquiry Committee, communicated to the Complainant in a letter dated December 1, 2016 ( Letter of Disposition ). [4] The complaint against Registrant 1 relates specifically to the treatment arising out of the Complainant s complaint about chest pains after taking a prescription prescribed by Registrant 1 earlier in connection with an ear problem. [5] A stress test was ordered for the Complainant by Registrant 1 and thereafter the Complainant was advised, as a result of a positive test arising from the stress test, to attend a hospital emergency room to see a cardiologist. A cardiac CT scan revealed incidental finding of gallstones, but no cardiac condition. [6] Thereafter, the Complainant saw Registrant 1 regarding gastro-intestinal problems. [7] The essence of the Complainant s complaint is a criticism of Registrant 1 s decision to order the stress test and her failure to refer the Complainant to a Gastroenterologist the Complainant had seen several years earlier to address stomach discomfort. [8] The Complainant objected to both the investigation conducted by the Inquiry Committee and its disposition. [9] The significant relief asked for by the Complainant is that the Inquiry Committee be directed to require Registrant 1 to undertake specified educational courses and that they request in writing that she consent to be reprimanded. [10] In the complaint filed with the College the Complainant asked that the Inquiry Committee go so far as preventing Registrant 1 from continuing to be a medical practitioner. [11] With regard to Registrant 2, to whom the Complainant was referred to by Registrant 1 to address the gastro-intestinal issues, the essence of the Complainant s complaint relates to the accuracy of a Consultation Report [ Report ] submitted by Registrant 2 to Registrant 1 including a reference to the Complainant s ethnicity in the description of her. [12] The remedies sought by the Complainant with respect to Registrant 2 is to direct the Inquiry Committee to request in writing that Registrant 2 rewrite his Report so that it is harassing free and accurate.

3 [13] Before the College in the complaint filed with the College, the Complainant asked that the same remedy be meted out to Registrant 2 as was requested of Registrant 1. [14] Again, the Complainant objected to both the investigation and the disposition of her complaint against Registrant 2. III ISSUES [15] The issues I must address in this matter as prescribed by s.50.6(5) of the Act are two: was the investigation conducted by the Inquiry Committee adequate and its disposition reasonable. IV RELEVANT LEGISLATION [16] The following extracts from the Act are relevant: V (1) The review board has the following powers and duties: (c) on application by a complainant under section 50.6 to review a disposition of a complaint made by the inquiry committee under sections 32(2), 33(6)(a) to (c) or 37.1; 50.6 (1) A complainant may apply to the review board for a review of a disposition described in section 50.53(1)(c) (5) On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) (b) DISCUSSION AND ANALYSIS the adequacy of the investigation conducted respecting the complaint; the reasonableness of the disposition. A. Adequacy of the Investigation [17] The interpretation as to what constitutes an adequate investigation for Review Board purposes was set out in Review board Decision No HPA-001(a) to 0004(a) (at paras. [97] and [98]) and has since been followed by a number of Review Board decisions: [97] A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the Inquiry Committee s assessment of the complaint. [98] The degree of diligence expected of the College what degree of investigation was adequate in the circumstances may well vary from complaint to complaint.

4 Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the College will all be relevant factors in determining whether an investigation was adequate in the circumstances. [18] In a recent decision of this Board, (Review Board Decision No 2016 HPA -215 (a)) the following principles were set out as abstracted from the decision cited at para. 17: (a) Reasonable steps should be taken to obtain key information that would enable an inquiry committee to assess a complaint; (b) The concept of reasonable does not require exhaustive and complete investigations to be adequate. The standard is adequacy and not perfection; and (c) Reasonable is contextual and will depend upon the seriousness of the harm alleged or proven. [19] In this case the Inquiry Committee received the complaint from the Complainant, sent it to both Registrants [as relevant] and asked for their responses, which the Inquiry Committee received. It also requested and received medical records from both registrants specific to the Complainant s care. As well, the Inquiry Committee also sent a letter to a third registrant, not the subject of the complaint, who treated the Complainant after her encounters with Registrant 1. All of the responses were provided to the Complainant for her review and comment which she did by way of a supplemental response. [20] I conclude that the investigation in this case was adequate as that test has been interpreted in the decisions by the Review Board B. Reasonableness of the Disposition [21] With respect to Registrant 1, the Inquiry Committee considered the chain of events leading to the ordering of the stress test for the Complainant. The Inquiry Committee concluded that given the symptoms complained of by the Complainant (chest pain and breathing difficulties), Registrant 1 followed a reasonable protocol in first ordering an ECG, and when the results were negative, ordering a stress test as a follow up. When the stress test came back positive and the Complainant continued to complain of the same symptoms, it was appropriate for [Registrant 1} to send [the Complainant] urgently to an emergency room to be checked out by a Cardiologist, which subsequently occurred. [22] The Inquiry Committee found that while in hindsight the symptoms proved to be non-cardiac, the investigative approach taken by Registrant 1 was consistent with standard medical practice. This conclusion must be read in the context of the treatment of an elderly patient with prior history of chest pains and hyperlipidemia.

5 [23] The second issue raised by the Complainant in connection with Registrant 1 related to the referral of the Complainant to Registrant 2 for gastro-intestinal evaluation. This referral emerged after a series of medications prescribed for the Complainant and tests taken over a period of approximately one month at the direction of Registrant 1 to address reflux, stomach pain and bloating. [24] The Inquiry Committee concluded based on the response by Registrant 1 that it was premature to refer the Complainant to the specialist of her choice when she raised the matter. When the Complainant was ultimately referred to Registrant 2 there does not appear to be any complaint or preference raised at that time by the Complainant and it is unclear to me what significance is to be drawn by the failure of Registrant 1 to refer the Complainant to a specialist that the Complainant had seen more than 10 years previously. There is no suggestion in the complaint against Registrant 2 that he lacked clinical competence. It would appear that the issue became of consequence to the Complainant only as a result of her unhappiness with the contents of Registrant 2 s Report. [25] As for Registrant 2 the complaint centred on various aspects of the Report he prepared. The Inquiry Committee having examined the Report concluded that it was extremely detailed. It was consistent with the expectations of such a report that it include the patient s history, findings of the physical examination, preliminary diagnosis and a management plan. One of the specific complaints raised by the Complainant in connection with this Report was the reference to her ethnicity in the Report. The Inquiry Committee accepted Registrant 2 s explanation that it is standard to comment on a patient s ethnicity as it is relevant demographic information. Conventional wisdom would suggest that statement is valid and that such reference should not be seen to be provocative as the Complainant seems to have interpreted it. [26] In the result, the Inquiry Committee concluded in the Letter of Disposition that: Our review has concluded that the medical care provided to you by [Registrant 1] was consistent with standard family medicine practice. Similarly, the consultation of [Registrant 2] was consistent with standard gastroenterology practice. [27] At paras. [12], [13], and [14], in Review Board Decision No HPA-071(a); 2014-HPA-072(a) and 2014-HPA-073(a), the chair of the Review Board described the task of the Review Board when considering whether a disposition was reasonable and the test for determining reasonableness in the following manner, and I adopt that approach which is set out below: [12] The legislature s reference to the reasonableness of the disposition makes clear that the Review Board is not to ignore what the Inquiry Committee has done or to step into its shoes. On the other hand, by conferring the review mandate on a specialized Review Board rather than a generalist court as it could have done, the legislature must equally have recognized first that it is for the Review Board to determine the degree of deference that is appropriate in particular circumstances, and second that reasonableness is not self-applying; the Review Board is not a court and the application of the reasonableness test will necessarily reflect the Review Board s specialized role and expertise. The legislature has made clear that it falls within the Review Board s

6 exclusive jurisdiction to define and apply reasonableness within the context of reforms whose purpose is to ensure an appropriate degree of college accountability, s (1). [13] The test the Review Board has traditionally applied to determine reasonableness is whether the Inquiry Committee s disposition falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained. I see no basis to depart from this view. I only note that the range of acceptable and rational solutions and what is sufficient justification, transparency and intelligibility in a particular case is a question to be determined by the Review Board on a case by case basis, applying its expertise and specialized role in good faith, and not simply by comparison to how a generalist court might apply the test on judicial review. [14] The Review Board is not to decide whether the Inquiry Committee s decision was right or wrong, and administrative law does not require that the disposition be one that the Review Board would have made. Rather, as mentioned above it must be a disposition that is supported by the evidence from the investigation, and one that fits within the range of acceptable and rationale outcomes. [28] In considering whether the disposition falls within the range of acceptable outcomes, it has been said the two questions to be asked are whether the disposition can be rationally supported by the evidence and does the disposition appropriately address the major issues of the complaint. It is not, however, for the Review Board to decide whether the Registrar was right or wrong or whether the Review Board may have decided differently; only whether the disposition is transparent, sufficiently justifiable and intelligible (Review Board Decision No HPA-151(a) at paras. [21-22)]. [29] As stated in Review Board Decision No HPA-151(a) at para. [37]: The College s function is not to adjudicate the level of satisfaction in respect of the registrant s service, but rather whether their members have met the appropriate standards of practice. [30] To that end it must also be recognized that the onus of proof as to the correctness of the information rests with the party questioning its correctness. (Review Board Decision No HPA-0208(a) at para. [5]). [31] I am satisfied, based on the Record before me that the decision by the Inquiry Committee is defensible based upon the evidence obtained from its investigation and the law. The disposition by the Inquiry Committee is justifiable, transparent, and intelligible and falls within a range of acceptable outcomes. VI ACCEPTANCE OF ADDITIONAL DOCUMENTS [32] The Complainant in her Statement of Points seeks to introduce a series of documents, some of which are already part of the Record. [33] The test for including new evidence into the Record is found in s.50.6(7) of the Act.

7 [34] Section 50.6(7) of the Act states: The review board may hear evidence that is not part of the record as reasonably required by the review board for a full and fair disclosure of all matters related to the issues under review. [35] I am not satisfied that the additional documents would make disclosure more full or complete to enable me to render a full, fair and proper decision: Review Board Decision 2009-HPA-0001(a) to 0004(a). [36] Therefore, I am not prepared to admit the additional documents, except those that are already part of the Record before me. VII CONCLUSION [37] For the reasons I have given, I find that there was an adequate investigation by the Inquiry Committee and its disposition was reasonable. Accordingly, I confirm the disposition of the Senior Deputy Registrar on behalf of the Inquiry Committee. [38] In making this decision, I have considered all of the evidence and submissions before me, whether or not specifically reiterated in these reasons. Herbert S. Silber Herbert S. Silber, Q.C. Panel Chair Health Professions Review Board