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-205(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 Physicians and Surgeons COLLEGE AND: A Physician REGISTRANT BEFORE: J. Thomas English, Q.C., Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on March 31, 2015 APPEARING: For the Complainant: Self-represented I STAGE 1 OR STAGE 2 [1] This complaint has been referred to a Stage 1 hearing. At this stage the following results are possible: (a) I may confirm the Inquiry Committee disposition under s. 50.6(8)(a) of the Act if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or (b) I may determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant. [2] I have decided it is appropriate to proceed by way of a Stage 1 hearing. Accordingly, this review of the Inquiry Committee s disposition was based solely on the record of investigation provided by the College and submissions from the Complainant.

2 DECISION NO HPA-205(a) Page 2 II FACTS [3] The Registrant was retained by the lawyers for the Insurance Corporation of British Columbia ( ICBC ) to provide an independent medical examination ( IME ) of the Complainant who had commenced an action against ICBC in relation to two separate motor vehicle accidents. [4] Subsequent to the release of the IME the Complainant settled the law suits. [5] The Complainant has since filed a complaint (the Complaint ) with the College alleging professional misconduct against the Registrant, namely, bias. [6] The Complainant, who is obviously articulate, supported his allegations by referencing Rule 11-2 of the BC Supreme Court Rules which provides that an expert appointed by one of the parties is giving an opinion to the Court has a duty to assist the Court and is not an advocate for any party. The Complainant alleges that the Registrant breached this duty in that: not only did he advocate for ICBC, this advocacy misrepresented what actually occurred, and the manner in which the medical exam was held was such a fundamental breach of medical code, that some action should be taken. [7] A part of the Record in this matter was the 17 page detailed independent medical opinion ( IMO ) of the Registrant which indicated that the information relied upon by the Registrant in providing his IMO consisted of: (a) the medical history reported by the Complainant on the day of his examination by the Registrant; (b) the physical examination of the Complainant by the Registrant; and (c) a review of various documents including records or reports from: (i) seven physicians; (ii) three psychiatrists; (iii) one cardiologist; (iv) one sleep apnea specialist; and (v) the clinical records from two hospitals. [8] In the IMO the Registrant stated: [The Complainant] has a long history of psychiatric, physical, and emotional difficulties, learning disorder, and ADHD that pre-date the accidents. His problems with morbid obesity, binge eating and eating disorder, and social difficulties are well-documented prior. He has had prior motor vehicle accidents where he has had chronic pain that was widespread involving all four quadrants of his body, upper and lower extremities, with a strong emotional component. Whether he is diagnosed with fibromyalgia with diffuse soft tissue tenderness by a rheumatologist or whether he is diagnosed with a pain

3 DECISION NO HPA-205(a) Page 3 disorder with diffuse pain with a primary psychiatric component, both would be in keeping with his presentation, and this pre-dates the motor vehicle accident. He has a history of pursuing legal action against multiple parties. He has had psychological testing done which suggested he may have borderline personality traits. [The Complainant] was vague and evasive during his history session with me. His account of the bus accident is completely different from the witness statement from A. The difference in account of the events is so far off, that when combined with [the Complainant s] personality traits and evasiveness during his history make it impossible to take his history as fact. If fact, in this situation I suspect he gave an account of the bus accident that was intentionally false. In the setting of the potential for secondary gain present in this personal injury case, I cannot base my opinion on the history given by [the Complainant]. [9] In its Disposition Letter the Inquiry Committee stated: We confirm that the inquiries [the Registrant] made regarding previous workplace accommodations or physical restrictions were not irrelevant, but required in order to determine your baseline capabilities prior to your accidents. Further, we do not find it inappropriate that [the Registrant] made comment regarding your mental health and its potential impact on your complex case. This is within the scope of his role, and in the report he defers any further diagnosis and advice to psychiatric specialists. Our review of [the Registrant s] report does not reveal cause for regulatory criticism. III APPLICABLE LAW AND PRINCIPLES [10] My mandate to review Inquiry Committee decision is governed and limited by the Act. Section 50.6(5) of the Act states: On a receipt of an application under ss. (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. Adequacy of Investigation [11] The Review Board has determined in prior decisions that not all complaints will require a College to pursue every possible avenue of investigation, but a Complainant is entitled to an adequate investigation. [12] What constitutes an adequate investigation in the context of the Review Board was well defined in Review Board Decision No HPA-0001(a) to 0004(a) paras. [97] and [98] which reasoning I have adopted herein:

4 DECISION NO HPA-205(a) Page 4 [97] A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the Inquiry Committee s assessment of the complaint. [98] The degree of diligence expected of the College what degree of investigation was adequate in the circumstances may well vary from complaint to complaint. Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the college will all be relevant factors in determining whether an investigation was adequate in the circumstances. [13] The role of the Review Board in assessing the adequacy of an investigation is to determine whether the Inquiry Committee s investigation provided it with sufficient information to assess the particular complaints made against the Registrants. It is not the role of the Review Board to reinvestigate the complaint or to substitute its decision for that of the Inquiry Committee. Reasonableness of Disposition [14] The legislature s reference to the reasonableness of the disposition makes clear that the Review Board is not to ignore what the Inquiry Committee has done or to step into its shoes. On the other hand, by conferring the review mandate on a specialized Review Board rather that a generalist court as it could have done, the legislature must equally have recognized firstly that it is for the Review Board to determine the degree of deference that is appropriate in particular circumstances, and secondly that reasonableness is not self-applying; that the Review Board is not a court and that the application of the reasonableness test will necessarily reflect the Review Board s specialized role and expertise. The legislature has made clear that it falls within the Review Board s exclusive jurisdiction to define and apply reasonableness within the context of reforms whose purpose is to ensure an appropriate degree of college accountability, s (1). [15] The test the Review Board has traditionally applied to determine reasonableness is whether the Inquiry Committee s disposition falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained. I see no basis to depart from this view. I only note that the range of acceptable and rational solutions and what is sufficient justification, transparency and intelligibility in a particular case is a question to be determined by the Review Board on a case by case basis, applying its expertise and specialized role in good faith, and not simply by comparison to how a generalist court might apply the test on judicial review. [16] The Review Board is not to decide whether the Inquiry Committee s decision was right or wrong, and administrative law does not require that the disposition be one that the Review Board would have made. Rather, as mentioned above it must be a

5 DECISION NO HPA-205(a) Page 5 disposition that is supported by the evidence from the investigation, and one that fits within the range of acceptable and rationale outcomes. IV ANALYSIS Adequacy of Investigation [17] The Inquiry Committee forwarded a copy of the Complaint to the Registrant requesting a response. The Registrant responded in an eight page letter addressing each of the matters complained about in the Complaint. The Registrant s letter in turn was forwarded to the Complainant for his comments. The Complainant disputed the response by the Registrant on a page by page basis. This reply by the Complainant was forwarded to the Registrant who replied by addressing certain matters raised by the Complainant. [18] The above exchange resulted in the Inquiry Committee having the submissions of both parties in hand upon which to base its decision as to whether the Registrant s conduct was unprofessional. [19] The Complainant submits that a chaperone who was present during the physical examination of the Complainant by the Registrant ought to have been interviewed but was not. In my view there was nothing she could have added that would have been relevant to the issue as to whether the IMO was biased. [20] In my view, there was an adequate investigation. Reasonableness of Disposition [21] In order to request that the Registrant do one or more of the sanctions set forth in s. 36(1) of the Act, the Inquiry Committee must conclude that the actions of the Registrant constituted either a lack of competence to practise medicine, s. 33(4)(d) or professional misconduct or unprofessional conduct, s. 33(4)(c). [22] There have been no submissions from the Complainant that question the competence of the Registrant. [23] Professional misconduct includes sexual misconduct, unethical conduct, infamous conduct, conduct unbecoming a member of the heath profession and unprofessional conduct, s. 26. [24] The Complainant submits that the conduct of the Registrant was biased. If established, in my view, bias could constitute professional misconduct. [25] It is obvious from the IMO that the Registrant considered and relied upon the other medical documents relating to the Complainant which are specified in para. [7](c) above in reaching his conclusions. The conclusions he reaches are based upon his professional assessment of those documents as well as the clinical history and his

6 DECISION NO HPA-205(a) Page 6 physical examination of the Complainant. The Registrant sets out in considerable detail his reasoning in reaching his conclusions. His conclusions are supported by the analysis. That is not bias. [26] Rule 11-2 of the BC Supreme Court rules provides that the Registrant if called upon will have to give testimony supporting his conclusions in the action by the Complainant against ICBC. Counsel for the Complainant would then have had the opportunity to cross exam the Registrant in order to establish the bias alleged. As the action settled that opportunity was lost. [27] The Inquiry Committee dealt with all of the issues raised by the Complainant and concluded that there was no basis for regulatory criticism. The Inquiry Committee provided an intelligible and rational basis for their determinations in respect of those issues. It is my determination that the Inquiry Committee s disposition falls within a range of acceptable and rational outcomes, which, based on all the evidence before them, are defensible in respect of the facts and law. V DECISION [28] Based on my review of the Record I conclude that the requirements of the Act have been met. I find that the Inquiry Committee s investigation of the facts concerning the complaint was adequate. Further, the disposition of the complaint was reasonable. In my opinion this application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant. Pursuant to s. 50.6(8)(a) of the Act I confirm the disposition of the Inquiry Committee. [29] In making this decision I have considered all of the information and submissions before me whether or not I have specifically referred to them. J. Thomas English J. Thomas English, Q.C., Chair Health Professions Review Board April 20, 2015