Health Professions Review Board

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: Toll Free: (within BC) Facsimile: Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 Website: DECISION NO HPA-121(a) In the matter of an application under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the Act ) for review of a complaint disposition made by an Inquiry Committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physical Therapists of BC COLLEGE AND: A Physical Therapist REGISTRANT BEFORE: Lorne R. Borgal, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on November 10, APPEARING: For the Complainant: Brent Ellingson, Counsel For the Registrant For the College Michael Schalke, Counsel Anthony Tobin, Counsel DECISION ON APPLICATION FOR REVIEW I STAGE 2 HEARING [1] Having been previously directed to Stage 2 of the hearing process, this review of the disposition by the Inquiry Committee is based on the record of investigation provided by the College (the Record ), the Complainant s Application for Review and the Statement of Points received from each of the College, the Registrant and the Complainant which together constitutes the evidence before this hearing. I will state at the outset that I have considered and rejected the Complainant s request for an oral hearing of this matter. II REVIEW BOARD JURISDICTION AND MANDATE [2] The Review Board exists in part to provide, upon an application for review by a Complainant, impartial and objective reviews of complaint dispositions of Inquiry

2 DECISION NO HPA-121(a) Page 2 Committees of the health profession colleges of British Columbia. These are reviews of dispositions and not fresh examinations of complaints. In completing a review, I examine the entire Record of the matter pertaining to the complaint. My mandate in this case is to determine whether the Inquiry Committee conducted an adequate investigation and if it did, then I am to determine whether the disposition of the matter was reasonable. [3] In the event that I find that the Inquiry Committee investigation was not adequate or the disposition was not reasonable then the Act provides me with the authority to direct the Inquiry Committee to make a disposition that it could have made or (more typically) to send the matter back to the Inquiry Committee with specific directions. III BACKGROUND AND FACTS [4] The Complainant attended at the Registrant s clinic for an assessment of her neck after experiencing unexpected relief from chronic neck pain at her home. Having attended at the Registrant s clinic previously for chronic neck pain following a car accident in 2004, the Complainant had not seen the Registrant for two years prior to the January 9, 2015, appointment (the Appointment ) which was the subject of the complaint to the College (the Complaint ). [5] The Complainant alleges that she told the Registrant not to treat her as she had no pain but to tell her what might have happened to suddenly relieve the near constant pain that she had been experiencing in her neck. The Registrant submits that he performed an assessment on her neck and that he did not provide treatment. During the Appointment the Complainant alleges that the Registrant applied pressure and injured her neck. [6] The Complainant reports that she experienced immediate pain and later that day she experienced loss of vision and severe headaches. She reports attending at the emergency department of a hospital the night of January 9 following the Appointment. In her submissions the Complainant detailed economic and social costs to her associated with the pain which she attributes to the actions of the Registrant during the Appointment. The Complainant alleges that she did not give consent for treatment or for the actions of the Registrant. [7] The Registrant states that he provided an assessment, not treatment, and alleges that he proceeded with the Complainant s consent. [8] The Inquiry Committee received the Complaint, investigated and provided a disposition letter stating that it found insufficient evidence to justify taking further action in response to the Complaint. [9] In her Application for Review the Complainant submits that the Inquiry Committee erred in its determination that the Registrant s actions justified no further action being taken. The Complainant alleges that the Registrant proceeded without

3 DECISION NO HPA-121(a) Page 3 consent, refused to stop when she asked him to, caused her long term injury and breached her confidentiality. IV THE COLLEGE PROCESS Complaint [10] The Complaint to the College was received January 14, Registrar s recommendation to appoint investigator [11] On January 15, 2015, the Registrar wrote to the Inquiry Committee under s. 32(2) of the Act describing the Complaint and recommending that an inspector be assigned to interview the complainant about the assessment and treatment she received. In the Record page nine, the Registrar referenced s.32(1) but clearly was relying on s.32(2). Registrar s January 19, 2015, letters to Registrant and Complainant [12] On January 19, 2015, the Registrar wrote two letters, one to the Registrant and one to the Complainant. These letters describe the process followed by the College in response to a complaint. Given that there are inconsistencies between the processes described in the respective letters and given that there are inconsistencies between the processes described in the letters and the provisions in the Act, I provide three observations with respect to the content of these letters. [13] First, the letter to the Registrant assures him that no decision would be taken by the Inquiry Committee without providing him with all investigative materials and giving him an opportunity to provide written submissions and any information he believes it should consider, however, no similar representation is made in the letter to the Complainant. The Complainant is advised that the Inquiry Committee owes a duty of fairness to the Registrant without acknowledging a similar duty of fairness to the Complainant and if and when the Complainant receives confidential documents, the Complainant will be warned about their confidential nature. In this case, the Registrant was provided with all of the Complainant s materials, but the Complainant was not provided with a copy of the Registrant s response to the Complaint. [14] Second, both letters include similar language describing the mandate of the Inquiry Committee, which language I suggest be re-evaluated by the College: Letter to Registrant Record: page 12 paragraph 1: If you review the relevant sections of the Health Professions Act, you will see that any disposition of a complaint requires your consent, unless the matter is referred to a discipline hearing. In other words, the Committee does not make findings of fact. Rather, its role is to determine whether or not there are sufficient evidentiary grounds to support the complaint allegations and whether or not it

4 DECISION NO HPA-121(a) Page 4 is in the public interest to request a respondent to consent to undertake certain actions to address issues arising on the complaint. Letter to Complainant Record: page 15 paragraph 2: Consistent with the limited jurisdiction of the Inquiry Committee, any disposition of your complaint by the Inquiry Committee requires the written consent of the respondent physical therapist [following which the letter quotes from s. 33(6) of the Act] [15] The language quoted above would reasonably convey to the reader that any disposition (short of a citation) requires the Registrant s consent. However, the reality is quite the opposite. In fact, none of the dispositions in s.33(6) of the Act requires a registrant s consent: 33(6) After considering any information provided by the registrant, the inquiry committee may (a) take no further action if the inquiry committee is of the view that the matter is trivial, frivolous, vexatious or made in bad faith or that the conduct or competence to which the matter relates is satisfactory, (b) in the case of an investigation respecting a complaint, take any action it considers appropriate to resolve the matter between the complainant and the registrant, (c) act under section 36, or (d) direct the registrar to issue a citation under section 37. [16] Each disposition listed in s.33(6) of the Act is a matter for the independent judgment of the Inquiry Committee. This includes dispositions under s.33(6)(c), which involves a request that the registrant do one or more of the things referenced in s.36(1). Whether or not consent to a s.36(1) request is subsequently given by a registrant, the request itself remains a disposition, it remains on the registrant s file, and the failure to consent may, at the discretion of the Inquiry Committee, result in a citation under s.36(2). Therefore, the College should not leave registrants and complainants under the impression that the registrant s consent is necessary for any disposition by the Inquiry Committee unless a citation is issued as this is not consistent with the Act. [17] Third, while an Inquiry Committee does not make findings of fact in the same way as the discipline committee, the Inquiry Committee does engage in a meaningful evaluation of the evidence for the purposes of exercising its statutory role under s.33(6): see generally, Review Board Decision No HPA-0036(b) at paragraphs [43-86], cited by the BC Supreme Court in College of Dental Surgeons of British Columbia v. Health Professions Review Board, 2014 BCSC 1841 at para. [71].

5 DECISION NO HPA-121(a) Page 5 Appointment of Inspector and Investigation Report [18] On January 22, 2015, the College appointed an inspector to investigate the Complaint. The investigator reviewed the Complaint and the clinical records, and she conducted a personal interview of the Complainant on February 12, 2015, which interview was recorded and later transcribed. [19] On March 4, 2015, the Investigator produced an Investigation Report. The Investigation Report summarized the evidence. It did not include proposed conclusions or a proposed disposition, leaving that matter for the exclusive consideration of the Inquiry Committee. Letter to Registrant [20] On April 2, 2015, the Inquiry Committee wrote to the Registrant enclosing a copy of all documents that will be before the Inquiry Committee and posing these questions: (1) What is your understanding of the purpose of the patient s visit on January 9, 2015? (2) Please comment on the allegations in the transcript, in particular as to how you responded to her apparent revocation of consent on page 14, lines 13 to 18; and page 16, lines 9 through 12 and 15. (3) Is it true that you conducted yourself as alleged on pages 22 and 23? And if so, why? (4) With reference to pages 25 and 26 of the transcript and the question and response therein, please provide your comments. (5) Please respond to the allegation about your change in demeanor as reported by the complainant on page 52 of the transcript. [21] This letter, without enclosures, was copied to the Complainant in May By this time, the College had also received the Registrant s response to the complaint. Registrant response [22] On April 30, 2015, the Registrant provided an 11 page response letter to the College, plus attachments. [23] The College did not provide the Registrant s response letter to the Complainant. Inquiry Committee Disposition [24] The College Registrar signed two disposition letters dated June 16, 2015, one directed to the Complainant and the other directed to the Registrant. Each was four paragraphs long. The letter to the Complainant stated as follows:

6 DECISION NO HPA-121(a) Page 6 The purpose of this letter is to advise you that, under section 33(6)(a) of the Health Professions Act, it was the decision of the Inquiry Committee to take no further action in the investigation of your complaint. The conclusion drawn by the Inquiry Committee in its investigation of the matters alleged in your complaint was that there was insufficient evidence for the Committee to justify taking further action on this matter under the Act. If you are dissatisfied with the Inquiry Committee s decision, you have the right to seek a review of this decision by the Health Professions Review Board under section 50.6 of Health Professions Act, R.S.B.C chapter 183 as amended. [sic] If you intend to seek a review you must do so within 30 days of the receipt of this letter. Enclosed are the Health Professions Review Board brochure and a copy of the Inquiry Committee decision for you as a reference. [25] The Registrant received a similar letter. [26] The two page Inquiry Committee decision referenced in the letters is dated May 29, (the IC Decision ). [27] The IC Decision, after describing the allegation ( that the physical therapist exacerbated her neck injury and did not obtain consent to provide treatment ) stated that the Inquiry Committee investigated the complaint 1 and outlined these issues: At issue is: (1) Was consent for assessment and treatment obtained by the physical therapist (2) If so, where was it documented? (3) What assessment and/or treatment was provided by the physical therapist? (4) Where was it documented? (5) Was the assessment and/or treatment outcome documented? (6) If not, why not? [28] After citing College Bylaw 56(1)(a)(vi) and Practice Statement 4, both of which require consent to treatment, the IC Decision stated: Evidence considered The Inquiry Committee considered the following evidence: [the Complainant s] letter of complaint, the Registrar s assessment of the complaint, correspondence between the 1 The investigation was conducted by an inspector assigned to prepare an Investigation Report, which report was dated March 4, The Investigation Report summarizes the information gathered in the investigation, but does not contain any proposed findings or recommendations.

7 DECISION NO HPA-121(a) Page 7 College and [the Complainant], correspondence between the College and [the Registrant], the Inspector s Report and [the Registrant s] response to the complaint. Analysis The Committee thoroughly reviewed all the evidence before it. On the basis of [the Complainant s] clinical record and [the Registrant s] response to the complaint, the Committee was satisfied that [the Registrant] was not in breach of Bylaw Section 56(1)(a)(vi) and Practice Standard 4. Decision The Inquiry Committee decided under section 33(6)(a) of the Health Professions Act to take no further action as, on the face of the information before it, there is insufficient evidence to justify taking further action on this matter under the Health Professions Act. [29] The IC Decision will be examined in more detail below. However, I make two brief points here, as both bear on the reasonableness of the disposition, addressed later in these reasons. [30] First, while the IC Decision sets out the IC s ultimate conclusion, it does not set out any chain of reasoning leading to that conclusion. [31] Second, while the Complaint clearly included two issues - a quality of care issue ( exacerbated her neck injury ) and a consent issue - the Analysis portion of the IC Decision stated a conclusion only on the consent issue. Any consideration of the quality of care would have to be inferred from the paragraph under the heading Decision. V COMPLAINANT S POSITION [32] The Complainant filed her own application for review. Its opening line is: Please find attached the decision by CPTBC that I want to be reviewed. The relief sought was that the matter be sent back to the Inquiry Committee for reconsideration. [33] The request for review and request for a remedy made clear that the Complainant was dissatisfied with the IC Decision. Her letter seeks justice. While she invokes the Review Board process, it is fair to say that the remainder of her letter in support of the review application focuses mainly on reiterating her version of events in support of the complaint. While she does not use the word unreasonable, it is obvious that the Complainant does not view the IC Decision as reasonable. [34] After filing her application for review, the Complainant engaged legal counsel to submit a Statement of Points on her behalf. [35] The Statement of Points reiterated the relief sought in the application for review, and tendered additional evidence not included in the Record before the College that she wishes the Review Board to consider as part of its review. This included: (a) the name of the hospital she attended on January 9, 2015;

8 DECISION NO HPA-121(a) Page 8 (b) the record of the examination and treatment provided at the hospital by Doctor A; (c) The clinical record from an examination by Doctor B on February 16, 2015, and from Doctor C on February 17, 2015; (d) A statement from Doctor D for examinations he conducted on four different dates between February 21 and August 12, 2015; and (e) Records of a radiological consultation on May 11, 2015, at the hospital. [36] The Statement of Points reiterates the Complainant s version of the events giving rise to the Complaint, and discusses the Additional Evidence, which it states contains objective medical findings of her examining physicians that corroborate her claim that [the Registrant s] treatment of her on January 9, 2015, produced injuries that have had negative physical and psychological effects on her. [37] The Complainant s Statement of Points does make reference to the Review Board s review function, and does seek a remedy (remittal) expressly authorized by s.50.6(8)(c) of the Act. However, it makes no express reference to s.50.6(5) of the Act which sets out the nature of the Review Board s review role, and it makes no express submission as to how the College s investigation was inadequate or why the disposition was unreasonable. [38] As will be noted below, the Registrant and College argue that the absence of any such submissions on adequacy and/or reasonableness means the review cannot proceed as the Review Board has no authority to conduct a review in the absence of such submissions. They argue for the Review Board to proceed in the absence of such submissions would be beyond the Review Board s authority and would reflect a lack of impartiality. VI THE SEPTEMBER 8, 2015, STAGE 2 LETTER TO THE PARTIES [39] On September 8, 2015, I instructed the case manager to send a Stage 2 letter to the parties. To understand that letter, it is necessary to understand the Review Board s process and rules. [40] The Review Board s Rules refer to a Stage 1 hearing and a Stage 2 hearing. The Rules setting out these hearing stages, created in 2013, represented a significant reform in the Review Board s processes, designed to address, in a just, fair and efficient fashion, the processing of applications for review by the Review Board. [41] The premise underlying these reforms was that the Review Board has been given the mandate under s.50.6(5) of the Act to assess one or both of the adequacy of the investigation and the reasonableness of the disposition on receipt of an application for review by a complainant, without requiring either of those matters to be specifically pleaded by lay complainants (the vast majority of whom do not have counsel) as if this were some form of civil litigation:

9 DECISION NO HPA-121(a) Page (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) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. [emphasis added] [42] In this context, a Stage 1 hearing is a hearing that considers whether to dismiss the application for review based only on the College Record and only the Complainant s Statement of Points, without needing to hear from the College or Registrant. A Stage 1 hearing is defined in the Rules as follows: Stage 1 Hearing means a hearing where the review board considers whether the application for review may be fairly, properly and finally adjudicated based only on the application for review, the college record, and submissions or evidence, if any, from the applicant or complainant. No order to refer the matter back to the college under Section 50.6(8)(b) or (c) or 50.54(9)(b) or (c) of the Act will be made at a Stage 1 Hearing. Reasons are given only if the review board dismisses the complaint or registration review. No reasons are given if the review board determines that the matter requires adjudication in a Stage 2 Hearing. (See Rule 44) [43] To dispose at a Stage 1 review, the Review Board must be satisfied that it can, based on the Record and the submissions, undertake a fair assessment of the adequacy of the investigation and the reasonableness of the disposition, without needing to hear from the other parties, and conclude that the investigation was adequate and the disposition was reasonable. [44] Where the Review Board s Stage 1 assessment leads it to conclude that it cannot fairly address adequacy and reasonableness in the absence of submissions from the College and Registrant, it proceeds to Stage 2, described in the Rules as follows: Stage 2 Hearing means a hearing where an adjudication is based on the application for review, the college record, and submissions or evidence, if any, from the applicant or complainant, the college and, where applicable, the registrant (See Rule 44) [45] The vast majority of reviews by the Review Board are concluded at Stage 1. This means that the vast majority of Review Board outcomes are decided favourably to the Colleges and Registrants, based on a Review Board assessment of adequacy and reasonableness, without even needing to hear from them (except for receiving the College Record). I am not aware of the Colleges or Registrants ever having raised concerns with the Review Board considering one or both the adequacy of the investigation and the reasonableness of the disposition when the outcome is favourable to them at Stage 1, notwithstanding that a Complainant may not have specifically pleaded those grounds. [46] Where the Review Board concludes, based on its Stage 1 assessment, that the matter should proceed to Stage 2, a letter is written to the Registrant and the College

10 DECISION NO HPA-121(a) Page 10 advising them of that. In practice, Stage 2 letters are often drafted to give the College and Registrant notice of questions arising from the panel s Stage 1 review, so that those parties can address them in their submissions. [47] In this case, the September 8, 2015, letter sent to the parties at my instruction included the following: In particular, without limiting the comprehensive nature of your response, the Panel asks that the College and Registrant address the following in their submissions: VII (a) Confirm that the one page letter on page 170 of the Record is the entire content of the disposition letter to the Complainant. (b) In consideration of the letter from the Inquiry Committee to the Complainant dated January 22, 2015, on page 26 of the Record, was the commitment in the second paragraph of that letter fulfilled as there is no evidence in the Record that it was? If it was fulfilled then the Inquiry Committee is required to provide that information as part of the Record. 2 (c) Note that the clinical record contained on pages 51 to 80 contains the word consent on one occasion on page 79 and there is no other description that implies consent in the clinical record. Note also that there is no written consent in the Record. It would be helpful to the Review Board if the Inquiry Committee could provide it with their understanding as to how the conditions in Practice Standard Number 4 on page 173 of the Record were satisfied in this case. REGISTRANT S STATEMENT OF POINTS [48] The College submits that, it fully agrees with and joins the submissions filed on behalf of the Registrant in this matter. Therefore, the submissions of the Registrant are set forth in some detail. The Registrant advances five main arguments. [49] First, the Registrant submits that the Complainant must prove that the Inquiry Committee investigation was inadequate and/or the Inquiry Committee s decision was unreasonable. The Registrant submits that the Complainant cannot satisfy this burden because its submissions do not describe how the investigation was inadequate or how the disposition was unreasonable, and treat this matter as a trial de novo. The Registrant submits that the IC decision ought to be confirmed solely on the basis of the above noted deficiencies. [50] Second, the Registrant submits that The Review Board cannot make an order under s.50.6(8)(b) or (c) of the (Act) in this matter because the Applicant s submissions do not address the adequacy of the investigation or reasonableness of the disposition. It submits: 2 As correctly pointed out by the Registrant, the January 22, 2015, letter referenced there was a letter to the Registrant, not the Complainant. The Record discloses that the College did in fact provide the Registrant with the investigative file material, and an opportunity to be heard: see para. [20] above.

11 DECISION NO HPA-121(a) Page 11 [15] In the absence of Applicant submissions regarding the adequacy of the investigation or the reasonableness of the disposition, it is not for the Review Board to undertake its own inquiry into the adequacy of the investigation and reasonableness of the disposition. [underlining in original] [51] Third, the Registrant submits that, in any event, the investigation was adequate and the disposition was reasonable. [52] With regard to the adequacy of the investigation, the Registrant submits that the degree of diligence required by the Inquiry Committee s investigation was at the low end of the spectrum. He submits that while the Complaint may seem like it ought to fall at the high end of the spectrum (requiring a high degree of diligence), in fact this complaint falls at the low end ( involving complaints alleging things such as brusque demeanor or harmless, but off-colour, jokes ) because the Complaint is suspicious on its face involving a claim that pain she says she was suffering from for years magically went away, and re-appeared a short time later, this re-appearance of pain due to a malicious physiotherapy treatment, by the Registrant. The Registrant also emphasized an Ontario Board decision which noted that in the face of conflicting information based on personal recollections or credibility, the College is not required to carry out an exhaustive fact-finding process. [53] The Registrant submits that The Inquiry Committee obtained the relevant clinical records, appointed an inspector, received several letters from the Complainant, interviewed the Complainant, asked the Registrant to respond to specific questions and received a detailed letter from the Registrant, which letter vehemently disagreed with the Complainant s version of events, stated that he never adjusted or manipulated the Complainant s neck, never made any forceful, sudden or malevolent actions and had consent at all relevant times. The Registrant references the Practice Standard on Clinical Records of the College which requires that the clinical record must contain documentation that informed consent has occurred. The Registrant submits that he had obtained informed consent through words and conduct and that this consent was recorded in the clinical records as UQScan (mod) with consent. [54] With regard to the reasonableness of the disposition, the Registrant argues that the disposition was reasonably supported by the information that was before the Inquiry Committee, fell within the range of acceptable and rational solutions and reflected that while the Registrant s submissions had the ring of truth, the Complainant s submissions were meandering and incredible, painting the Registrant as some sort of malevolent beast. [55] The Registrant s third main submission concerns the Review Board s September 8, 2015, letter, described above. The Registrant reiterates its arguments about the burden of proof and argues that it is not for the Review Board to undertake its own inquiry into the adequacy of the investigation or the reasonableness of the disposition. Since none of the Review Board s September 8 questions were put in issue by the Complainant, the Review Board, as an impartial panel, cannot adjudicate issues that

12 DECISION NO HPA-121(a) Page 12 were not pleaded in the application for review, nor can it conduct its own investigations into matters. [56] The Registrant s fourth submission responds to the questions posed in the September 8 letter. The Registrant argues: (a) The IC Decision, while concise, was not required to be long or verbose, and that any consideration of the sufficiency of the written reasons must be considered on a reasonableness standard, must encompass the entirety of the Record and the nature of the IC role, which was not sitting as a trier of fact in a full-fledged adjudication. (b) The January 22, 2015, letter was to the Registrant (not the Complainant), and the College fulfilled that commitment. (c) While the clinical record uses the word consent only once, nothing in the Practice Standard requires it to be written multiple times, or be written at all, as the Practice Standard makes clear that consent can be obtained through words or conduct. Further, it is not the job of the College or the Review Board to conduct a fishing expedition into clinical records in 2010 and 2012 which do not relate to the complaint. [57] The Registrant s fifth submission addresses the 25 additional documents the Complainant filed with her Statement of Points. The Registrant objects to their admission on this review. He argues that the Complainant has not satisfied the test for the admission of new information either generally or on a document specific basis. The Registrant submits that the new information is in any event unhelpful or could have been provided to the Inquiry Committee before it issued its disposition. The Registrant notes the Complainant was certainly not shy about sending multiple unsolicited submissions to the College [58] In conclusion, the Registrant submits that The Review Board ought to confirm the Inquiry Committee s disposition and he opposes any oral hearing. VIII COLLEGE STATEMENT OF POINTS [59] Having joined the Registrant s Statement of Points without qualification, the College made further submissions in addition to those made by the Registrant. [60] The College s additional submission argues that the panel s September 8, 2015, letter disregarded the failure of the Applicant to address the issues on the review and thus discloses an Apprehension of bias on the face of the Record. These instructions, issued by the Panel in the letter dated 8 September 2015, impliedly prejudge the matter as to whether or not the (Complainant) has met the threshold test regarding whether the inquiry committee s investigation was adequate and its disposition reasonable. The instructions ignore whether or not the (Complainant) has raised sufficient issues and evidence to establish that there is a case to be met. The evidentiary burden is on the (Complainant).

13 DECISION NO HPA-121(a) Page 13 The Panel member who issued these instructions obviously believes that there is a case to be met notwithstanding that the Applicant has failed to present such a case. Moreover, the Hearing Panel raises issues for response that do not form part of the submissions of the Applicant. These facts raise an issue of apprehension of bias going to jurisdiction. It is submitted that the nature of these instructions violate the principles of fairness and neutrality that must be the hallmarks of the Health Professions Review Board. In order for the Review Board to make an order under section 50.6(8)(b) or (c) of the Health Professions Act the (Complainant) bears the burden of proving that the College s investigation was inadequate, its disposition unreasonable or both. If there is no evidence submitted by the (Complainant) that the investigation was inadequate then the Review Board cannot make an order under section 50.6(8)(b) or (c) of the Health Professions Act, still less issue directions to the parties to address issues that have not been raised by the (Complainant). [61] The College submits that the instructions in the September 8 letter are also beyond the jurisdiction of the Review Board with particular objection taken to the request for the Inquiry Committee to provide their understanding of how the Practice Standard referred to in paragraph [21] above was met. The College submitted: It is evident from the nature of the instructions that the panel member believes that he has an investigative role. It is submitted that this is a significant legal error that now compounds and reinforces the issue of apprehension of bias identified earlier. [62] The College requests that the matter be referred to the Chair for determination, and requests that the application for review be dismissed. IX ONUS, AUTHORITY AND BIAS [63] The positions of the College and Registrant regarding burden of proof, jurisdiction, and bias are based on a single premise that the Review Board only has legal authority to dispose of the specific objections made to it, and that if those objections are not pleaded by a complainant, the Review Board cannot go any further. On this view, the Review Board is a passive adjudicative decision-maker, operating within a purely complainant-driven litigation-type process. [64] This reflects the traditional way in which courts decide cases. However, administrative tribunals are not courts, and they are not properly thought of as simply a cheaper version of the courts. Administrative tribunals are very often created to provide a real functional and expert alternative to judicial processes. This involves assigning them a broader role and wider latitude to carry out the purposes of the Act than might be achievable in a court process. This broader latitude is sometimes described as a power to inquire or independently assess. What is important, however, is not the label, but the function. To properly understand that function in the Review Board s home statute, we must look carefully and fully at the Act creating the Review Board: its

14 DECISION NO HPA-121(a) Page 14 language, its purposes, the practical realities within which the Review Board operates and its expertise. [65] I begin with the language of the statute. Section 50.6, which sets out the key provisions dealing with complaint disposition reviews, says this: 50.6 (1) A complainant may apply to the review board for a review of a disposition described in section 50.53(1)(c). (2) An application under subsection (1) must be made within 30 days of the day on which written notice of the disposition is delivered to the complainant. (3) A complainant under subsection (1) must, within the time period set out in subsection (2), deliver a copy of the application to the college and the registrant who is the subject of the complaint. (4) Only the complainant, the college and the registrant may be parties to a review under this section. (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) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. (6) A review under this section is a review on the record. (7) 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. (8) On completion of its review under this section, the review board may make an order (a) confirming the disposition of the inquiry committee, (b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (c) sending the matter back to the inquiry committee for reconsideration with directions. (9) The review board must, no later than 30 days after making an order under subsection (8), deliver a copy of the order to the parties to the review. [66] Sections 50.6(1) and (5), in my view, make it very plain that the Review Board s role is not limited to adjudicating allegations made in pleadings. They contemplate a more active role for the Review Board. Section 50.6(1) states that when a complainant applies to the Review Board, he or she is asking the Review Board for a review of the

15 DECISION NO HPA-121(a) Page 15 disposition (see also s.50.53(1)(c)). The active language of applying for a Review Board review by itself contemplates that the Review Board itself will be doing something reviewing a disposition language that differs from what might be the case if, for example, the legislature had drafted a traditional right of appeal focused on adjudicating grounds of appeal, or a review right that focused on the application for review rather than the College s disposition. [67] This is strongly reinforced in s.50.6(5), the core provision that defines the Review Board s function. On receipt of an application, the Review Board must conduct a review and must consider one or both of the adequacy of the investigation and the reasonableness of the disposition. These duties arise not with reference to the Complainant s arguments, but are stated as a free-standing duty to review the investigation and disposition. They demand the Review Board s independent consideration, and focus on the disposition. [68] It is of course true that the Complainant is a party to the review under s.50.6(4), and that s.50.61(1)(c) sets out a procedural requirement that the Complainant state why the decision or disposition should be changed. However, these provisions do not qualify s.50.6(5), and certainly do not place a burden of proof on the Complainant. They do nothing more or less than give a Complainant a meaningful opportunity to put his or her objections forward while recognizing that this is happening within the Review Board s larger accountability function of assessing the adequacy of the investigation and the reasonableness of the disposition. Nothing in these sections require that the Review Board s authority be dependent on the pleadings of a particular Complainant, whose reasons why the decision or disposition should be changed may in some cases amount to little more than a claim that the complainant has no confidence in the processes or outcomes of the college. Where, as here, a complainant makes an application for review in good faith and seeks a remedy the Review Board can grant, the responsibility for review lies on the Review Board, which can and must exercise the responsibility it has been given under s.50.6(5). [69] The Registrant emphasizes that under s.50.6(6) and (7), the review is a review on the record (with additional evidence permitted where reasonably required by the review board for a full and fair disclosure of all matters related to the issues under review). This is true and it is consistent with good common sense given the nature of the Review Board s duty. Where the Review Board s function and duty is to review the adequacy of the investigation and the reasonableness of the disposition (as opposed to conducting a de novo review of the complaint itself), it stands to reason that the review would focus on the Record, with additional evidence considered only where it bears on the issues of adequacy and reasonableness. [70] In understanding the Review Board s function, other provisions must also be considered. One is the Review Board s remedial powers in s.50.6(8). Those powers are not limited to simply confirming the decision or sending it back as a court might do. The Review Board can also direct the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter. s.50.6(8)(b). This shows

16 DECISION NO HPA-121(a) Page 16 very clearly that the Act has given the Review Board a broader role, a role much broader than would be exercised by a court. [71] Finally, I mention s.50.63(1) of the Act, which sets out the Review Board s exclusive jurisdiction, which includes the exclusive jurisdiction to inquire into all matters arising or required to be determined in a review: (1) The review board has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a review or an investigation and disposition under this Part and to make any order permitted to be made. [72] Section 50.63(1) reinforces the position that the Review Board may do exactly what the Act tells it to do upon receipt of an application for review, to review the adequacy of the investigation and the reasonableness of the disposition. [73] How does this analysis, as compared with the analysis put forward by the Registrant and the College, accord with the purposes of the Act? [74] The broad purpose of the Act is to ensure that Colleges serve and protect the public and discharge their responsibilities in the public interest : the Act, s.16(1). The general purpose of the reforms creating the Review Board in 2008 was to enhance transparency and accountability in College decision-making. [75] In my view, these purposes would be ill-served if a deficient college investigation or unreasonable disposition would be defeated by poor pleading by an unskilled or unrepresented complainant (the vast majority of complainants are unrepresented) or a person unfamiliar with the Review Board s specialized mandate. The Review Board is designed to get on with the task of reviewing the disposition. It is not designed to invite gotcha submissions from respondents (most of whom are represented by counsel and familiar with the Review Board s decisions) alleging failed pleadings, thus diverting the focus from the College s disposition to the competency of the Complainant s submissions. [76] While most Complainants do their best to review the Record in the exercise of their right to be heard while trying to make sense of the increasingly complex concepts of adequacy and reasonableness with which they are generally unfamiliar, it is totally unrealistic to expect them to advance their grounds in a way that a lawyer familiar with the Review Board and its decisions might do. What Complainants do know is that they are dissatisfied with what happened at the College and they want a review. The ultimate accountability safeguard is that, whatever the Complainant argues, the Review Board will itself assess the adequacy of the investigation and the reasonableness of the disposition, and has been assigned the expertise and responsibility to do so. In my view, the interpretation that best reflects the practical realities in which the Review Board operates, and that utilizes its expertise, is the one that flows from the language of the Act, discussed above.

17 DECISION NO HPA-121(a) Page 17 [77] For all these reasons, it is my view that the Act intended that when a complainant requests a review, the Review Board is not limited by the particular pleadings the complainant has advanced. Where, as here, the Review Board is satisfied that the Complainant has made a request for review in good faith, the Review Board must review one or both of the adequacy and reasonableness of the disposition even where, as here, the Complainant s pleadings are not particularly helpful on those issues. [78] In conclusion, I reject the position that the Review Board s ability to review a disposition depends on a Complainant discharging an onus. [79] I also reject the position that any of this means there is a legal onus on the Registrant and/or College to prove that the investigation was adequate or that the disposition was reasonable. There is no onus on any of the parties. The onus is on the Review Board itself to examine the Record and to determine whether the investigation was adequate and the disposition was reasonable. While there is of course a practical benefit for any party in a given case to point to the factors that do or do not sustain the investigation and disposition in their opinion, there is no legal onus on them to do so. In the case of the Registrant and/or College, the proof that there is no legal onus is made very clear in the fact that the Review Board disposes of the vast majority of review applications at Stage 1, without even hearing from these parties. [80] If I am correct that the Review Board has been given the duty to review one or both of adequacy or reasonableness on receiving an application for review, it follows that there can be no reasonable apprehension of bias when the Review Board is simply doing its job. The allegation of bias by the College is based on an incorrect reading of the Review Board s role and function under its home statute. [81] It follows that I also dismiss the objection that the September 8, 2015, letter shows bias. What the College calls bias is in fact an exercise of fairness by a board with the duty to assess and inquire. Where, as here, the Review Board s Stage 1 review gave rise to questions for the panel, it was only fair to give the Registrant and the College notice and an opportunity to address those questions as part of their Statements of Points at Stage 2, as they have now done. X THE REVIEW FUNCTION: GENERAL [82] Under s of the Act, the Review Board has exclusive jurisdiction to assess the adequacy of a College investigation and the reasonableness of its disposition. In my view, it is significant that the Act chose to confer this function on a specialized administrative tribunal rather than a court. It means at a minimum that the Review Board is to apply those concepts from its unique statutory perspective and understanding rather than simply attempting to mimic how a generalist court might apply them if the court were the first instance reviewing body. [83] In other words, the Review Board s determination in any particular case is a question to be determined by it applying its expertise within its specialized role. As noted in Review Board Decision No HPA-216(a) at para [23], A comparison as to

18 DECISION NO HPA-121(a) Page 18 how a generalist court may apply a test or standard on judicial review is not required as a component of its analysis. While, from time-to-time, the Review Board may make reference to judicial decisions these are cited for being persuasive, helpful by analogy, or as a guide for consistency, but obviously not as a basis upon which the Review Board abandons its exclusive jurisdiction. [84] Review Board Decision No HPA-216(a), at paras. [24-39], offers a comprehensive discussion of the proper approach to adequacy and reasonableness. I adopt that discussion here. X. ADEQUACY OF THE INVESTIGATION [85] In this matter I find that, upon receipt of the Complaint, the Inquiry Committee: (a) Provided a letter to the Complainant acknowledging receipt of the Complaint and outlining the Inquiry Committee role; (b) Provided a letter to the Registrant advising him that the Complaint had been received, advising him that the Inquiry Committee was mindful of his rights as a Registrant and advising him of how certain records which may be created in the process are not compellable in court; (c) Appointed an inspector who interviewed the Complainant and wrote a report; (d) Provided a letter to the Registrant with a copy of all of the documents provided to the Inquiry Committee including a copy of the transcript of the interview of the Complainant by the inspector and a list of five specific questions for the Registrant s written response; and (e) Issued a disposition letter to the Registrant and the Complainant, and provided each with a copy of the Inquiry Committee Minutes of their meeting of May 29, [86] The first question I will consider is whether to admit the records that the Complainant has tendered in her Statement of Points. While the Registrant and College have argued that the evidence is not properly before the Board, I think it is relevant, but only for the limited purpose of helping the Review Board to assess whether the investigation was adequate whether there are records in existence that the Inquiry Committee should reasonably have obtained as part of an adequate investigation. I admit them all on that basis. As will be noted, the weight to be attached to that material on the Complaint itself will be for the Inquiry Committee to decide. [87] I turn then to my assessment of the adequacy of the investigation. In making that assessment, the first question is the objective seriousness of the complaint, as recognized in Review Board Decision No HPA-216(a) at paras. [30-32]: [30] To the extent that deference is properly applied to assessing adequacy, it also reflects that the Review Board must have a rational sense of proportion in its application what is adequate in one context will not be adequate in another. This is made clear at

19 DECISION NO HPA-121(a) Page 19 paragraph 106 of Moore, where the Court states: Thus, the nature of the complaint will inform the extent of the investigation required. Where the complaint is of a minor or trivial nature it may not be necessary in each case to conduct an extensive investigation. [31] This passage necessarily implies that there will be objectively serious cases where adequacy does require an extensive investigation. This is made equally clear by the Court at paragraph 105 of Moore, where the Court recognized that even an extensive investigation into a complaint might be considered inadequate where one line of inquiry was ignored or not properly pursued ; and at paragraph 121 where the Court stressed that [t]he Board must intervene where there is either no investigation or only a cursory investigation that is inconsistent with the nature of the complaint. [32] Moore was clearly a case where, on the facts, the Court concluded that the Review Board s requirement for further investigation (consisting of specific questioning of the registrant) was not only out of proportion relative to the objective seriousness of the complaint (para.107) but the questions themselves would serve no purpose, thus calling into question the very finding of adequacy (paras , 116, 123). In Moore the Court found the Review Board to have been of the view that the registrant was less than forthright and that it simply substituted its discretion for that of the Registrar (para.117). [88] These passages recognize that, in assessing adequacy, the Review Board applies a sliding scale. The more objectively serious the complaint, the more diligent the investigation needs to be in order to be assessed as adequate. [89] The Registrant argues that while this complaint might at first blush appear serious, it was not entitled to treatment as such because the complaint is suspicious on its face involving a claim that pain she says she was suffering from for years magically went away, and re-appeared a short time later, this re-appearance of pain due to a malicious physiotherapy treatment, by the Registrant. [90] This is not the most serious complaint imaginable. However, the submission that this complaint involving what the complainant alleges were life-altering consequences from a consultation visit - should be likened to brusque humour (a claim being made by Registrant s counsel before the Review Board, which claim was not made by the Inquiry Committee) is unreasonable and unsustainable. The Inquiry Committee itself, quite reasonably, considered the matter to be sufficiently serious as to justify the appointment of an investigator, an interview of the complainant and the posing of particular questions for the Registrant to answer. It did not treat or dismiss the complaint as being trivial or frivolous. Despite the Complainant s subjective assertions of the Registrant s motivation, the quality of care allegation of a serious neck injury and consent issues were, objectively, serious and significant allegations in the profession of physical therapy. [91] Did the Inquiry Committee meet the requisite standard in the investigation of this complaint? While the steps that it did take were certainly called for, I have concluded that the investigation was inadequate.