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-050(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 Chiropractors of BC COLLEGE AND: A Chiropractor REGISTRANT BEFORE: Kent Ashby, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on November 8, 2013 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Donald Lebans, Counsel Self-represented I DECISION [1] I find that the investigation of the Inquiry Committee (sometimes referred to as the Committee herein) was inadequate and the disposition unreasonable. The matter is referred back to the Inquiry Committee with directions as set forth under the heading "Order" at the end of this decision. II INTRODUCTION [2] This matter arises from the disposition of a complaint to the College regarding a chiropractic treatment of the Complainant. [3] On December 29, 2012, the Complainant filed with the College a complaint against the Registrant, making certain claims about his neck adjustment as well as a

2 DECISION NO HPA-050(a) Page 2 claim that there was lack of follow-up by the Registrant. In March 2013 he was informed that the complaint was dismissed. [4] The Complainant applied for this review and asserts that The college has not investigated the matter thoroughly and that he was denied due process in that he had never been questioned nor [had he] ever been allowed any access to [the Registrant s] response. III ISSUES [5] The merits of the original complaint made to the College are not in issue here. This is a review of the investigation and the disposition and the issues before me are: (a) whether the investigation was adequate (this issue includes the diligence of the investigation, any obligation to give the Complainant a right of reply, and the adequacy of the record); and (b) whether the disposition was reasonable. IV BACKGROUND FACTS A. The Treatment and Complaint [6] This review arises from a chiropractic treatment of the Complainant by the Registrant. The Complainant states that on October 10, 2012, the Registrant violently adjusted my neck without me knowing he was going to do it. He asserted that he sustained a neck injury and that the Registrant had caused him to now have a severe neck issue that [he] simply did not have prior to [his] visit with [the Registrant]. He also asserts that there was a lack of follow-up. [7] On December 29, 2012, the Complainant filed a letter of complaint with the College setting forth the basis of his claim. B. The Investigation and File Closure [8] The documentary evidence concerning the investigation and disposition are set forth in considerable detail because the evidence is disputed, or at least represented differently, in the submissions of the parties. [9] On January 17, 2013: (a) The (then) Deputy Registrar ed the complaint to the Inquiry Committee and advised that an Investigator would be assigned by the Chair of the Committee; and, (b) The appointment of an Inspector was recorded in the Complaint Flow Sheet Inquiry Committee records and the CCBC Inquiry Committee Case Cover Sheet. [10] On January 21, 2013, the Investigator sent letters to the Complainant and Registrant. The Investigator s letter to the Complainant, among other things, advised

3 DECISION NO HPA-050(a) Page 3 that he may be contacted to discuss the complaint, and that he would be informed of the Committee s decision after investigation and considering the Registrant's response. [11] On February 12, 2013, the Registrant replied to the Investigator and forwarded the clinical records of the Complainant. [12] On February 27, 2013: (a) The Complaint Flow Sheet Inquiry Committee records stated: Feb 27 ic decision to dismiss injury (sic); and (b) The CCBC Inquiry Committee Case Cover Sheet records stated: Closure Date: Mar Feb 27 / 2013 decision made (sic). [13] On March 1, 2013, the Complaint Flow Sheet Inquiry Committee records stated: P/C from [Complainant] re decision explained alleged injury outside College mandate (Civil action). [14] On March 4, 2013: (a) Two different letters were issued on College letterhead by the Investigator (signed as "Inquiry Committee Member") to the Complainant and Registrant. Both letters commence with the statement that the Inquiry Committee has recently completed its investigation of the Complaint. They diverge from there. (i) The letter to the Complainant stated, among other things, that: The Committee considered the information arising from an investigation and concluded that the Registrant s conduct and competence were satisfactory in respect of this matter. Accordingly, the Committee has decided to take no further action in respect of the complaint. It appears your primary concern is compensation for injuries allegedly caused by chiropractic treatment. (ii) The letter to the Registrant stated, among other things, that: the Committee has decided to take no further action in respect of the complaint. Your response and records support satisfactory conduct and competency in respect of this matter. There is the risk that the complaint may form the basis of a civil action against you. (b) The CCBC Inquiry Committee Case Cover Sheet records stated: Closure Date: Mar Feb 27 / 2013 decision made final letters sent Mar 4 / 2013 (sic). [There are no further entries on this record] (c) The Complaint Flow Sheet Inquiry Committee records stated:

4 DECISION NO HPA-050(a) Page 4 Mar 4 letters sent. [There are no further entries on this record]. [15] On March 18, 2013, a letter issued to the Complainant was signed by the Investigator as "Inquiry Committee Member". It stated that she sought to expand upon the Committee's reasons where possible. Other contents are discussed below. C. Findings of Key Dates and Facts [16] I make certain findings of fact here regarding dates and events because some of the facts in the records are disputed, or at least represented differently in the submissions, and they, as well as the existence or lack thereof of records, weigh heavily in this decision. [17] I find that the disposition of the complaint was made February 27, This finding is based upon that being shown as the date of decision in the above quoted portions of the CCBC Inquiry Committee Case Cover Sheet and the Complaint Flow Sheet Inquiry Committee [18] There are no other records of the Committee on the matter which contradict those records. There is no evidence that the Committee met or made any decisions after the recorded date of February 27, I distinguish between a date of a decision and a date of writing a letter, and find no support for the College s submissions for the decision occurring in March, after the Complainant had spoken with the Inspector on March 1, [19] I find that the March 1, 2013, telephone call was made by the Complainant to the College; and not the reverse case of the College seeking information from the Complainant before disposition. This finding of fact is based upon the "Complaint Flow Sheet Inquiry Committee stating "Mar 1 - P/C from [Complainant] re decision - explained alleged injury outside College mandate (Civil action)". This record confirms the submission of the Complainant. There is no contrary evidence supporting the proposition that the call was initiated by the Investigator or commenced for the purposes of providing the Complainant with an opportunity to provide evidence before the Committee made its decision. [20] I find that the telephone call was not an opportunity for the Complainant to provide further evidence or to challenge the Registrant's evidence because it was made after the decision, and he was advised of the decision in that call. This finding of fact is based upon the same Complaint Flow Sheet entry as above, and upon the College's submission (that conflicts with its submission described above) that the decision was communicated by the Investigator "during the phone call of March 1" (College Statement of Points, paragraph [11]). It is also supported by the College's description of that conversation as one in which the Investigator explained to the Complainant "the determination which the Committee would be communicating to him" (College Statement of Points, paragraph [32]). As such the decision was already made and only the formal communication was yet to follow.

5 DECISION NO HPA-050(a) Page 5 V RELEVANT LAWS, POLICIES AND REVIEW STANDARDS A. Review on the Record - Limits and Scope [21] The powers and duties of the Review Board are established by the Act and are limited. The Act sets out in s. 50.6(6) that a Review Board review is conducted on the record, meaning that it is not a fresh analysis of the complaint itself but is a review of the investigation and the disposition of the Committee. [22] The power of the Review Board to issue an order after completion of its review is set out at s. 50.6(8) of the Act which states that 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. B. College Obligations - Act in Public Interest - Transparent, Objective, Impartial and Fair Procedures [23] The obligation of the College is to act in the public interest in a transparent, objective, impartial and fair manner (see s. 16(1) and s. 16(2)(i1)). It is clear that in all respects those guiding precepts apply, and all investigations and related procedures must be directed to fulfilling those obligations for the service and protection of the public. This is balanced by specific procedural steps under s. 33(5) of the Act specifically, giving the Registrant a right to be heard in the investigation. This procedural right exists because of the potential effect on the Registrant s ability to practice his profession; it is a right that also exists at common law as an element of natural justice. [24] Under s. 33(1) of the Act, inquiry committees are obligated to conduct investigations of the matters raised by complainants. While investigators may be engaged, the responsibility for the conduct and completion of an investigation resides with the Inquiry Committee. C. Review on the Record [25] As this is a review on the record I must rely upon the existence of records, but this also means that the review must consider the adequacy and absence of records. Where there are questions from a party, or from me, I am not to simply assume facts to fill in blanks in the filed record that are significant or key to showing due process and proper exercise of authority. [26] Records must include not just collected or created records but also records of process. A record of proceedings is required in order to show regularity, or expose the lack or regularity of proceedings. This would include showing not just results but the

6 DECISION NO HPA-050(a) Page 6 steps taken and authority exercised. This is so because there is limited scope for assuming due process in reviews that are to be on the record. [27] The College has the obligation to provide all the records that are in its possession or control which are reasonably required for a full and fair disclosure of all matters related to the issues in the investigation and to the Review Board review. The records must show that the investigation was conducted consistent with procedures that are transparent, objective, impartial and fair, that serve and protect the public in the public interest. The records must reveal the degree of diligence required by the circumstances, given the seriousness of the complaint, its complexity and the Committee s ability to access evidence. [28] In the present case [t]he Committee received the Complaint on January 17, 2013, (College Statement of Points paragraph [6]) by from the Deputy Registrar. In the records there is only a single notation on a flow sheet and one on a "case cover sheet" to indicate that a decision was made and none that show that the committee met or reviewed the evidence. Assuming that the committee met on the date of decision, there is no other evidence to show whether the committee met before or after that date. There are no minutes, no resolutions, and no record of reasons issued by the committee. It may be, and is permissible, that decisions are made by the Committee and it directs the drafting of the reasons drawn from its deliberations. But the draft must convey the actual reasons of the Committee as decision maker and be approved by the Committee as its reasons. Without such approval, by resolution, any explanation may be speculative or personal, but will not be reasons, and will not serve as reasons although the contents may serve as evidence of inadequacy or unreasonableness. [29] To have had an adequate investigation and a reasonable disposition, it is a fundamental requirement that a committee must meet, investigate, deliberate and decide. In this case there are no records to indicate whether the full Committee (with quorum) did any of these things, whether a panel of the Committee met in place of the full Committee (which may be permitted with sufficient numbers), whether the entire investigation and disposition were placed into the hands of a single person on behalf of the committee, or whether a single individual personally took on the task of resolution of the matter. [30] The records are entirely consistent with one single person, the Investigator, having conducted all committee communication with the Complainant, the investigation, the determination, and issuance of the reasons. The only person to ever write to the Complainant during and after the investigation (until he filed for this review) was the Investigator. In each case the letter was signed as Inquiry Committee Member including the disposition letter (March 4 th ) and the letter with expanded reasons (March 18 th ). At no point in any of those letters did the Investigator distinguish between writing the letters as the Investigator, individual Committee member, or on behalf of the Committee. [31] The test for adequacy of an investigation is not a negative test which defaults to acceptance of adequacy in the absence of evidence. When the Review Board is

7 DECISION NO HPA-050(a) Page 7 reviewing for adequacy of an investigation it is to look for evidence of adequacy or inadequacy, and absent evidence of adequate proceedings of an investigation it is not to assume that it exists. In the present case I find that there are insufficient records of the conduct and content of the investigation from which a determination of adequacy of an investigation may be found, and as such I must conclude that the investigation is inadequate. D. Adequacy of the Investigation Standard Not Perfection [32] The Review Board has previously established that an investigation may be adequate even if it is not a perfect investigation, and an inquiry committee is not required to pursue every possible avenue of investigation. But the key information must be obtained. Review Board Decision No HPA-0001(a) to 0004(a) is oft cited as establishing this standard for review. [33] This standard and how it is applied here was set out in Review Board Decision 2013-HPA-036(a) where it states that [t]he Review Board will examine whether the College took reasonable steps to obtain the information necessary to address the complaint given its seriousness, complexity and their ability to access evidence paragraph [27]. In that case at paragraph [35] the investigation was held to be inadequate because [t]he Inquiry Committee did not avail itself of sufficient information to make a defensible decision regarding the substance of the complaint review. While the degree of diligence is based on the circumstances it is clear that, as stated in Review Board Decision No HPA-G02: "The duty of the Inquiry Committee is to take reasonable steps to obtain key information". [34] It is clear that an investigation is inadequate if key information is missing, but equally it will be found to be inadequate if a decision is not defensible based upon lack of probing to determine what is key information. It is difficult for speculation to exist within an adequate investigation. [35] To be defensible an inquiry committee does not have to prove that no more key information exists (i.e. prove a negative) but it must have sought information to the point that it is probable that there is no other material information available that would affect its assessment. What is key information is relative to the matter being investigated. An inquiry committee must take steps to obtain sufficient information so that it knows that on the balance of probabilities the key information is in hand and that there is no information that may be key but which has been left out. Without that conscious exercise it becomes speculative as to what information was missed, whether the committee was adequately informed and what would or would not have affected the assessment. E. Provision of Records and Burden of Proof Withstand Somewhat Probing Inquiry [36] In any review by the Review Board the College has to provide the full record of the investigation and in its argument it bears the initial burden of showing that the record

8 DECISION NO HPA-050(a) Page 8 reveals the degree of diligence required by the circumstances, given its seriousness, complexity and the College s ability to access evidence. If not apparent on the face of the record the College must show that the investigation was conducted consistent with procedures that are transparent, objective, impartial and fair, and that serve and protect the public. The role of the Review Board is not to assume, or to assume in the guise of deferring; otherwise the Review Board is not fulfilling its role as the last line of review and accountability. [37] As this is not a trial de novo with examination of the merits of the matter (in other words, the Review Board is not to step into the technically expert shoes of the Inquiry Committee) I owe, and have accorded deference to the Committee s assessment of the information, which is preliminary and does not constitute findings of fact. The issue of deference owed or given need not be addressed extensively here because even accorded that deference the investigation was inadequate and the disposition unreasonable. It is clear that deference does not mean being subservient or showing blind reverence (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph [48]; Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paragraph [11]). VI DISCUSSION AND ANALYSIS A. Adequacy of the Investigation Available Evidence [38] While not every complaint warrants a full investigation it is clear that an investigation is inadequate where there is no investigation or only a cursory investigation that is inconsistent with the nature of the complaint (Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081 at paragraph [120]). This expression must implicitly include that an investigation will be inadequate where the conduct is inconsistent with the nature of an investigation as a task to gather and evaluate information to the standard required. [39] In the present case the College submitted (College Statement of Points paragraph [38]) that the complaint itself had provided the Committee with "very specific information" and that: [as] the available evidence relevant to the issues raised in the Complaint supports the Registrant's version of events, it is unrealistic to require the Committee to pursue avenues of investigation that hold little or no prospect of eliciting added evidence. [40] The College also submitted that without a third-party witness to the treatment who might corroborate one or the other of [the Complainant s or Registrant s] stories, the Committee turned to the only other source of evidence available to it: the clinical records.( College Statement of Points paragraph [41]). [41] These statements about the availability of evidence disclose the failure to appreciate or fulfill the investigative function of the Committee. There are three things wrong with these statements.

9 DECISION NO HPA-050(a) Page 9 [42] The first is that it is clear from both the complaint and the clinical record that further evidence was available but it was not obtained by the Investigator, or by the Committee which has the statutory obligation to conduct the investigation. The information about the treatment was not so "very specific" as to close off the need to seek information; it was provided in only three paragraphs of the complaint. The complaint was more extensive in setting out that the Complainant had sought treatment for neck pain (which he attributed to the October 10 treatment), had seen health care providers, and had medical tests done since that treatment date. He also states in the complaint that he had been "... using the same Chiropractor for the past 9 years until [that Chiropractor moved to Alberta, and that he] never had any serious neck issues or traumas until visiting [the Registrant]. This evidence pointed to an increased, not decreased, reason to seek information from the Complainant, and through him from the other medical professionals. [43] In his complaint to the College the Complainant states that: Since the treatment I have had 3 RMT sessions thus far specifically on my neck and recently I have had an x-ray to ascertain if there is any bone damage. Since the treatment and the x-ray he had seen another Chiropractor and that She used a muscle scan device as part of her assessment. The result showed a severe negative muscle and nerve activity pattern in the affected area. Her assessment is that my neck was in all likelihood sprained with ligament damage. Highly likely from the adjustment from [the Registrant]. [44] The clinical records show that on October 17, 2012, the Registrant recommended that the Complainant get an x-ray, and in an entry dated November 26, 2012, it indicates that the Complainant has had x-ray going for MRI. The Registrant's reply to the Investigator on February 12, 2013, also states "I recommended that [the Complainant] attend to a medical examination including x-rays". That same letter also stated that the Complainant's "neck problems predated and in fact precipitated his attendance at [his] office". [45] The Inquiry Committee failed to obtain: (a) the records of the previous Chiropractor which would have shown the state of his neck and neck problems before becoming a patient of the Registrant and the October 2012 treatment; (b) the x-rays that were mentioned in the records of the Complainant and Registrant, and did not seek those of the MRI mentioned so as to assess the claim of injury and causation; (c) any evidence from the health professionals who would have had hands-on contact with the Complainant after the treatment, specifically: (i) the massage therapist(s), (ii) the physician(s) who would have conducted the medical examination recommended by the Registrant and who would have ordered the recommended x-ray and the MRI, and

10 DECISION NO HPA-050(a) Page 10 (iii) the Chiropractor who the Complainant had seen afterward and who the Complainant had stated had posited an opinion. [46] The Investigator also placed the Complainant on standby to discuss his complaint in her letter to him of January 21, 2013, and had the opportunity to query the evidence received from the Registrant and follow up on other probative lines of evidence. No further information was solicited from the Complainant before the disposition. This is despite the clearly available health care evidence available and the conflict between the evidence of the Complainant and the Registrant. [47] The Committee knew and acknowledged the availability of objective third-party evidence. There is no record of the Committee taking steps to obtain the evidence or to consider whether it was probative. The Committee, directly or through the Investigator, did not investigate while knowing that health records existed, or could exist, that were linked to the fundamental conflicts in the submissions by the Complainant and the Registrant. The investigation was inadequate due to that failure to take reasonable steps to obtain key information. B. Adequacy of the Investigation Only Source of Information [48] The second thing that is wrong with the statement about the availability of evidence, and specifically that "the only other source of evidence available [was the clinical records], is that it is a blinkered view of sources of evidence. Investigation is not a clerical function; it involves inquiry and scrutiny and must probe the evidence in hand and obtain, or rule out the existence of, relevant evidence from other sources. Evidence may arise from records of others before or after the event and from behaviour or words spoken before or after an incident, as well as those occurring contemporaneously but outside a treatment room. The existence of this very evidence is clear from the discussion above, but leaving that aside, an investigation is fatally flawed if it proceeds on the proposition that if a complaint arises from an unobserved treatment then, aside from the complainant and registrant s statements, the only other source of evidence is the clinical record. The Inquiry Committee does not know and I do not know what such other evidence exists and would be key information but which fell outside of the blinkered view. The investigation was inadequate due to that failure to diligently investigate. [49] The College submits that, since the decision of the Committee, the Complainant has had an opportunity to provide additional information. This contention loses sight of the fact that this is a review on the record and those records provide the evidentiary basis for this review of the adequacy of the investigation. Additional information is not required of the Complainant. The claim by the Complainant that some of the evidence was falsified by the Respondent was made after the Complainant saw the Registrant's reply arising from disclosure obligations of that record under this review. While the Complainant had no obligation to provide evidence of the merits of his complaint for this review, such evidence could have been provided and probative. While evidence of falsification may have strengthened his case this was not required because I have found the investigation to have been inadequate without it.

11 DECISION NO HPA-050(a) Page 11 C. Adequacy of the Investigation Conscious Determination of Key Information [50] This leads to the third thing wrong with the statement about availability of evidence. There is no evidence that the Committee determined that the only other source of evidence available" was the clinical record or that it undertook a conscious exercise to determine whether there was other information available (aside from overlooking the existence of the evidence discussed above). There is also no evidence that it sought to obtain sufficient information to know that the key information was in hand or that any information was available that may be key but not yet in hand. This duty resided with the Committee. There are no records produced by the Committee itself such as minutes, reports received, resolutions or decisions, or any directions or authorizations granted to anyone. I only have cover or tracking sheets of unknown authorship that would be expected to be covers or checklists for those primary records. I do have letters of the Investigator and this is where most information is found and attributed to the Inquiry Committee on the basis of apparent authority and by the College in its submission. In one such letter it appears that the Committee recognized that it was unaware of key information. The letter of the Investigator to the Complainant on March 18, 2013, (written in the first person singular as if from her rather than the Committee) stated its goal was seeking to expand on the Committee s reasoning where possible. She stated that the presence or absence of a third-party was not known: As far as the Committee is aware, there was no one else present in the room at the October 10 appointment. [51] The records do not state whether or not there was a third party in the room and neither the Complainant nor the Registrant s reply addresses the issue. There is no evidence that the Committee inquired about this from either side, and, as represented by the March 18 letter, accepted this as an unknown yet then acted as if it was a fact that no third party observed the treatment. In this case the ease of inquiring whether there was such a witness is incompatible with the investigation being adequate given the level of conflict between the complaint and the reply of the Registrant. [52] On each of the findings above I find that the investigation was not reasonably probing. The Committee did not avail itself of sufficient information to make a defensible decision. In each aspect separately and collectively the Committee did not conduct an adequate investigation. D. Adequacy of the Investigation Complainant Right of Reply - Challenge Evidence [53] In the present case the Complainant complains that he was not given due process arising from the fact that he was not given an opportunity to see and reply to the submission of the Registrant in response to his complaint. [54] Complainants can be more than initiators of a complaint; for the College they can also be sources of investigative information and to cross check information prior to assessment and disposition. In the present case the Complainant was not consulted

12 DECISION NO HPA-050(a) Page 12 before the decision was made in order to check for more information, to follow up on information that the Inquiry Committee knew that he had, to determine whether he had information of which they were unaware and which may be material, or to be used as a source to cross check the Registrant's reply and the assembled information and statements. [55] In this case the Registrant s records are part of his evidence to the Committee. These records contain a mixture of writings that appear to be by the hand of the Complainant and the Registrant; but only the Registrant was given an opportunity to explain the writings. A cross check would have elicited what the Complainant meant by his writings on the intake records which, as seen in the Complainant s final reply to the College submission, varies from what the Registrant and the College say that the Complainant meant. [56] The Review Board recently published Guideline and Recommendation #2 (the Guideline ), which encourages Colleges as a best practice to disclose to the Complainant a copy of the Registrant s response to the College, and to consider the Complainant s comments about the Registrant s response as part of the College s adjudicative process. While there may be exceptional cases where it is not required, or contra-indicated (the Guideline provides some common-sense examples of when disclosure would not be wise) an adequate investigation requires that key information that is subject to interpretation of what a Complainant thought or meant, should be put to the Complainant for comment and possible provision of evidence, otherwise the process invites misinterpretation or possible suppression of evidence. In the present case no request was made to the Complainant for further explanation. This is particularly troubling in that the interpretation of those documents was key in the explanation of reasons provided by the Investigator in her March 18, 2013, letter. The Guideline s best practice of providing a copy of a registrant's response to the complainant (which as noted in the Guideline is already done by certain Colleges) may serve as a template for putting such matters to a complainant, but in this case that was not done. [57] While it is a best practice for inquiry committees to provide a copy of a registrant's response to the complaint there may be circumstances where an investigation may be adequate without doing so, or by using some alternate or lesser investigative engagement with the complainant. In the present case that step was required so that the committee could know that all the information was obtained, particularly given that the Registrant provided a reply that was substantially at odds with that of the Complainant who held or had access to key information. [58] Lest there be confusion, it must be said that best practices do not set the absolute standard required or address circumstances for all cases. The degree of diligence required arises from the circumstances, given the seriousness, complexity, and accessibility of evidence. This includes the level and import of conflict, of cooperation, interference or evasion of investigation, and of clarity, equivocation, or contradiction. There may be cases where the best practices exceed what is required,

13 DECISION NO HPA-050(a) Page 13 and there may also be cases where the best practices as expressed or perceived do not adequately address the particulars of a case as they become known in an investigation. Rote application is not a bulwark against review as an investigation must consciously respond to circumstances and changes in circumstances. [59] The College submitted that inquiry committees have no prescribed steps or actions to take other than as required by the Act, under s. 33(5) and (6), to make requests of the Registrant and are only required to consider "any information provided by the Registrant before making a disposition (College Statement of Points [37]). That is a narrow reading of only part of the Act, and it fails to address the spirit and intent of the legislation or the express obligations to act in the public interest. These statutory requirements are not in any way a proscription of any other investigative act or implicit authorization to exclude inquiries of the Complainant. [60] If an inquiry committee only considers the "information provided by the Registrant" this would be in many circumstances (of which this case is one) an abdication of that inquiry committee's obligations to investigate and assess, and a failure to act under a transparent, objective, impartial and fair process conducted in the public interest. The same applies to an argument that an inquiry committee is to only seek information from the Registrant. The submission of the College does not go this far but takes the position that the investigation was adequate with only those steps. There may be cases where that applies but they would be those where the evidence or the disposition is self-evident and the resulting inquiry committee assessment and disposition is sufficiently justified, transparent and intelligible to be sustained. This is not such a case. [61] The College also submitted that it did not have to contact the Complainant because there was conflicting information. It said that the evidence of the Applicant in respect of the salient issues of the Complaint was completely contrary to the evidence of the Registrant (College Statement of Points paragraph [25]). This is not a basis for failing to seek information or to cross check evidence with the Complainant. The Inquiry Committee fails in its investigative obligation if it simply adopts the evidence of the Registrant in the face of conflicting evidence. To do this is an abdication of its evaluative function, and may invite the suspicion of bias. In the present case the Committee too readily adopted the statements of the Registrant without sufficient investigation. [62] It is important to note that in the present case the explanation of reasons provided by the Investigator in her letter of March 18, 2013, sets out assessments as findings based upon information from the Registrant that stated at least one key fact that was clearly wrong on the face of the documents and that, like the Registrant s response, interprets that is, speculates on - matters that would be in the Complainant's mind. These are discussed below, but given this, it was both incorrect and determinative of an inadequate investigation to describe the evidence as completely contrary to that of the Complainant in respect of the salient issues (College Statement of Points paragraph [25]).

14 DECISION NO HPA-050(a) Page 14 [63] One of the issues was that of informed consent. In the present case the Registrant states that a "trial course of treatment" was communicated to the Complainant on July 17, 2012, and he provided informed consent. There is, however, no discernible clinical record that there was a course of treatment undertaken rather than a series of single treatments for specific complaints during which a neck adjustment could be a surprise to a patient attending for some other complaint. In regard to issuance of informed consent itself, the March 18, 2013, letter states to the Complainant that "[f]ollowing the initial assessment you signed a form indicating that you consented to [the Registrant] proceeding with treatment" the treatment being a course of treatment. In the College's Statement of Points at paragraph [28] (c) it states that "at the first appointment, the [Complainant] dated and signed an 'Informed Consent to Chiropractic Treatment' form...". [64] A review of the "Informed Consent to Chiropractic Treatment" form reveals that the Complainant's name is printed on the "Name: (please print)" line and there is no signature of the Complainant on the signature line nor any witness in the spaces provided. It is inexplicable in any diligent investigation that the Investigator, the Inquiry Committee, and the College in preparation of its Statement of Points could miss such a patent lack of execution while asserting the existence of execution. There is no other discernible record of consent being obtained or, as stated above, a course of treatment being undertaken, with or without neck adjustment being part of such a course of treatment. The Investigator and Inquiry Committee too readily adopted the statements of the Registrant without due inquiry that would have revealed these significant discrepancies between the Registrant s statements and his records. [65] In terms of informed consent for the October treatment the Complainant said that it was done without him knowing that it was going to be done. He also stated that he was not attending for neck treatment but for mid-thoracic pain. It is clear that the knowledge that something is going to be done must be a state of knowledge of the Complainant. The Registrant's evidence was from his recollection - there being no clinical record of this - that he "explained what [he] was doing as [he] proceeded". The Registrant also stated that "[t]he treatment was neither unexpected on his part nor violent" - the latter regarding the force used was supported by a non- contemporaneous clinical record made about a month and a half after the treatment and after the Complainant had been continuing to communicate with the Registrant that it was an issue. The record dated November 26, 2012, describes the adjustment made on October 10, 2012, and includes the statement I do not recall using excessive force but there was a loud release of multiple joints. This recollection noted on the record on November 26, 2012, was accepted by the Committee even though not contemporaneous with the event. There is nothing to show that the Investigator and the Committee recognized that the record was not contemporaneous and they appear to have treated the non-contemporaneous clinical notes in the same manner as a contemporaneous clinical record. [66] The Committee failed to investigate the matter of informed consent as of the October 10, 2012, treatment day. While it may be that the Registrant described what

15 DECISION NO HPA-050(a) Page 15 was being done in the treatment as it proceeded this is not determinative that there was informed consent and that the neck adjustment was unexpected. There is a difference between saying and hearing and between hearing and understanding. Informed consent requires understanding and consent. It is inexplicable in any diligent investigation that despite fundamental conflict on a matter about what is in a person's mind that the matter would be determined without availing itself of further information, by querying the Complainant. Credibility may have been at issue but this is not disclosed in the disposition or any reasons. [67] As seen in Review Board Decision No HPA-0036(b) at paragraph [85] a limited assessment of credibility is permitted by an inquiry committee but at the same time that assessment of credibility can be subject to review. That case states that while the Review Board may make credibility findings in certain circumstances: Where the Review Board considers "credibility" in the context of the merits of the complaint it can only be for the purpose of determining whether the Inquiry Committee adequately and reasonably exercised its role - whether the Inquiry Committee too easily dismissed a complaint because of "conflicting stories", or whether it failed to attempt to resolve conflicts in the evidence by pursuing key and important lines of inquiry, which might well have changed the disposition from dismissal to one of the other options in s. 33 (6). [68] In the present case the letter of March 18, 2013, and the College's Statement of Points disclose that the Committee too easily dismissed the complaint because of conflicting stories, and in all respects preferred the submission of the Registrant. On these findings I find that the investigation was not sufficiently probing. The result is that the Committee did not avail itself of sufficient information to make a defensible decision, and as such the Inquiry Committee did not conduct an adequate investigation. E. Reasonableness of the Disposition Reasons for Disposition [69] Looking at the two March 4, 2013, letters, there is no identifiable set of reasons, or any that are distinguishable from portions that may be personal comment or advice from the committee. [70] Taking the March 4 letter to the Complainant as a whole, the result of the disposition is set out along with a statement that is indistinguishable from being part of the reasons, specifically that "[i]t appears that your primary concern is compensation for injuries allegedly caused by chiropractic treatment". If concern about civil action against the Registrant for compensation was in fact part of the reasons then I find that the committee has considered irrelevant matters which would render the disposition unreasonable where, as here, the disposition concerned competency. An exception would be where there is sufficient support for a disposition that a complaint is trivial, frivolous, vexatious or made in bad faith under s. 33(6)(a) of the Act - such a conclusion in this case would be unreasonable in the absence of evidence on which such an assessment could be based. The same consideration applies if the disposition was

16 DECISION NO HPA-050(a) Page 16 found, instead, to be expressed in the March 4, 2013, letter to the Registrant with or without detailing the risk of civil action as part of the reasons. [71] The disposition was apparently based, in part or entirely, upon a determination that the Registrant s conduct and competency were satisfactory in respect of the matter (March 4, 2013, letter to the Complainant and a similar statement in the same day letter to the Registrant). The letters of March 4, 2013, do not disclosure the basis and standard applied, if competency was assessed, so as to provide a sufficiently justified, transparent and intelligible decision that could be sustained on review. Was competence being equated with a legal test for negligence, as may have been implied by the reference to compensation above? Was competence being found because this was a one-time event and there was no pattern of practice with the Complainant, or a pattern general, that would be unsatisfactory? These are unknown but also reviewable matters (see Review Board Decision No HPA-0090(b)). [72] It is not necessary or possible for me to make a finding as to where the disposition and the reasons are to be found in or amongst the letters, or whether the reasons for the disposition are well grounded. It is enough that there are no identifiable reasons that are transparent and intelligible, and thus the disposition is unreasonable. This sufficiency is discussed below. [73] Even without that finding it is clear that there was no Committee meeting since February 27, 2013, if there ever was a valid meeting. Notwithstanding this, a follow-up explanation of reasons was provided on March 18, 2013, based upon an undocumented directive of unspecified authority. The letter was described as having been caused by the Complainant s call to the College, and "as a result of that call, it was decided that I should write to reiterate what was discussed during our March 1 phone call and to expand on the Committee s reasoning where possible". Although unsupported as issued by the Inquiry Committee the letter is adopted or represented as having come from the Committee in the College's Statement of Points at paragraph [12] where it states that [i]n response, the Committee wrote to the Applicant on March 18, 2013, for the same reasons as quoted above. [74] If this letter was in fact a letter of the Committee, and I emphasize that there is no support for this on the record, I find that the Committee is now bound by its contents. In that letter it is clear that the Committee has misdirected itself as to its role and its considerations and deliberations. It states:... as discussed during our March 1, 2013, phone call and restated in my March 4, letter, the Committee's authority is confined to the disciplining of College Registrants in respect of unsatisfactory conduct or competence in their practice of chiropractic. [75] Notwithstanding that there was no such reference in the March 4, 2013 letter, this March 18 letter evidences either the personal confusion and misdirection of the writer (it is written in the first person) who is on the Inquiry Committee, or that of the Committee itself. The standard for investigation and disposition by the Committee under the Act in respect of a complaint is substantially different than that for a disciplinary hearing.

17 DECISION NO HPA-050(a) Page 17 [76] Discipline is within the exclusive purview of the discipline committee and its standards and rules for conduct of discipline hearings are unlike those of the Inquiry Committee. The Inquiry Committee does not engage in discipline and has no authority to do so or to act in lieu of the discipline committee. The quoted statement in the letter is evidence that the Inquiry Committee misdirected itself in the investigation, the disposition, or both. Even if the letter is not adopted by the Inquiry Committee, the Investigator as a member of the Committee, has been misdirected regarding her proper role. In any case the investigation was inadequate due to that misdirection or the disposition and is not sustainable as reasonable. F. Reasonableness of the Disposition Articulation [77] As indicated above, the identification of whether there are reasons in the March 4, 2013 letters is significant. There is an obligation to provide reasons. I apply the approach taken by the panel in the oft cited Review Board Decision No HPA- 0001(a)-0004(a) where it applied Dunsmuir quoting from paragraph [47] and identifying that a review for reasonableness involves inquiring into both the process of articulating reasons and the outcomes. [78] The Supreme Court of Canada in Newfoundland and Labrador Nurses' Union considered and described its own Dunsmuir decision. The court stated at page 715 that the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. In that case the court was looking at the adequacy of reasons found by a lower court to be in need of cogency and were "unsupported by any chain of reasoning that could be considered reasonable". [79] The Supreme Court said (at page 715) that the "adequacy" of reasons is a not a stand-alone basis for quashing a decision or to undertake two discrete analyses - one for the reasons and a separate one for the result. It also said (at page 7160) that reasons need not include all the arguments, statutory provisions, jurisprudence or other details making explicit finding on each constituent element, however subordinate, leading to its final conclusion. The standard applied was whether the reasons allowed the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes. The same approach was applied in Review Board Decision No HPA-005(a) at paragraph [24] where the Board said: The reasonableness standard does not require the Inquiry Committee to give extensive reasons in support of its decision so long as they provide sufficient basis for the Review Board to assess, based on a contextual review of the decision, whether the outcome satisfies the reasonableness standard. [80] I adopt these standards with the test that articulation of reasons requires justification, transparency and intelligibility of those reasons. In the current case the inability to identify with certainty the substance of the reasons, or if they exist at all, in the March 4, 2013, letters makes it evident that the reasons do not meet these standards. There are no, or insufficient reasons, that permit me to understand why the