Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: 250 953-4956 Facsimile: 250 953-3195 Toll Free: 888 953-4986 (within BC) Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 DECISION NO. 2011-HPA-0018(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, for review of a complaint disposition made by an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of BC COLLEGE AND: A Physician and Surgeon REGISTRANT BEFORE: A Panel of the Health Professions Review Board J. Thomas English, Q.C., Chair Donald A. Silversides, Q.C., Member Lorianna Bennett, Member David Hobbs, Member Marilyn Clark, Member DATE: Conducted by way of written submissions concluding on October 20, 2011 APPEARING: For the Complainant: Sylvia Lane, Agent For the College: For the Registrant: Shaleen Kanji, Counsel No submissions I INTRODUCTION [1] This Application for review ( Application ) has been brought by a Complainant who has, tragically, lost her husband (also referred to in this decision as the Patient ). Her husband had been a quadriplegic since late 2004. In February 2010, the Complainant complained to the College that the Registrant s actions in misplacing a long term gastrostomy tube ( G-tube ) following a surgical procedure in October 2009 caused her husband s serious illness (and after the complaint was filed with the College, his death). The Complainant applies to have the Health Professions Review Board (the Review Board ) review the College s dismissal of her complaint.
DECISION NO. 2011-HPA-0018(a) Page 2 [2] The College has written two decision letters to the Complainant regarding this Complaint. In its November 2010 dismissal letter, the College concluded that the temporary misplacement of a G-tube is a common occurrence which was in this particular case recognized and corrected before any damage was done. The College concluded that the subsequent problems that your husband suffered from and that ultimately caused his demise were unrelated to the tube placement. The letter stated that the College is not critical of the care provided by [the Registrant]. [3] In a subsequent letter, dated March 21, 2011, issued during the Review Board process, the College addressed a contradiction between the events as recounted by a resident physician and the other physicians regarding whether the patient had received tube feeds while the G-tube was improperly inserted. Based on its review of clinical records, the College confirmed its original conclusion. [4] The Complainant alleges that the College disposition should be set aside because it failed to consider all the pertinent and relevant information. The Complainant seeks to have the College conduct a more in depth review of the file considering all information contained therein, to determine what effect administration of medication through the G- tube had on [her husband s] rapid deterioration and demise [5] The College s decision letter to the Complainant, both in its opening sentence and in the signature line, purported to be on behalf of the Inquiry Committee. However, the College subsequently advised that the disposition was actually made by the College Registrar under s.32(3)(c) of the Health Professions Act, RSBC 1996, c. 183 (the Act ). This requires us to consider, as a preliminary matter, whether the Registrar had jurisdiction to dismiss this complaint, as a disposition made without jurisdiction cannot be reasonable. [6] This case gives the Review Board an opportunity to revisit certain obiter dicta statements it made in Decision No. 2009-HPA-0045(a), particularly with regard to the Registrar s jurisdiction under s.32(3)(c) of the Act. II BACKGROUND [7] The Complainant is the wife of the deceased Patient. The Patient suffered from spastic quadriplegia as a result of an accident when he broke his neck. He had a permanent tracheostomy and a G-tube for feeding along with a bladder catheter to facilitate urine drainage. [8] It is common ground that they had to travel from community X to a hospital in a larger community Y in order for the Patient to have a suprapubic catheter installed by Dr. A. Anesthesia was provided by Dr. B who topped up the baclofen infusion pump of the Patient and provided a spinal infusion in an attempt to control his long-term spasticity. On October 29, 2009, these procedures were completed successfully and without incident. It became necessary to change the G-tube after the surgical procedure was done. [9] The Complainant alleged that the Registrant, who happened to be in the operating room, volunteered to replace the G-tube. The Complainant alleged that the Registrant misplaced the G-tube such that the tip of it protruded into the chest area, and that
DECISION NO. 2011-HPA-0018(a) Page 3 medications were subsequently administered through the G-tube, causing significant pain and bleeding. The Complainant alleged that this was not discovered until three days later, when minor surgery revealed that the G-tube was in the wrong place and that medication was being pushed into his chest area and not his stomach. The Complainant alleged that during this time, her husband was fed by intravenous fluids and received antibiotics to prevent further infection as the doctors did not know what effect misplacing the feeding tube would have. The Complainant emphasized her husband s immediate adverse reaction to the G-tube insertion, his two week hospitalization in their home community only four days after returning from the larger hospital, and his ongoing chest and lung infections at the time the Complaint was filed. The allegations of the Complainant extracted from her complaint to the College, are as follows: [The Patient and the Complainant] went to X to have a Superpubic Cather [sic] installed by Dr. A. Procedure occurred October 29, 2009. While in the operating room, Dr. B topped up the bactrifin pump which [the Patient] had inserted for chronic pain in 2005. [A nurse], from austimy [sic] was suppose [sic] to change [the Patient s] spinal baclofe [sic] feed tube after all surgical procedures were done, but that was not the case. [The Registrant] was in the O.R. area at the time and told Dr. B that he would change the feeding tube, which he proceeded to do. After [the Patient] came out of surgery, and the spinal epidermal was wearing away, [the Complainant] was taking him outside with a care aid friend for a few hours. The nurse at the desk suggested she d administer his medications through his feeding tube and then flush the tube as per regular maintenance. She had extreme difficulty getting the water to flush the tube into the tube itself and forced the remainder of water from the syringe into the tube. [The Patient] immediately was in excruciating pain, in his chest, shoulders and back. The tube was bleeding profusely and they did not know why. After several days he was returned to the O.R., and did not seem to know what the problem was as [the Registrant] was gone and they did not have contact with him. Minor Surgery [sic]3 days later, revealed that the feeding tube was placed in the wrong area, and the medications [sic] was being pushed throughout his upper chest area not into his stomach. [10] The Patient remained in the hospital in community Y for a further 15 days following which he returned to their home town X. Four days later he was hospitalized in X for a period of two weeks because of lung and chest infections. [11] Approximately three months later, in February 2010, the Complainant filed the Complaint stating that the Patient then was on antibiotics constantly and had chest and lung infections. Furthermore, his stomach swelled regularly and he required 24 hour per day oxygen supplementation. Also he suffered from aspiration pneumonia and permanent lung damage. [12] The Patient died seven days after the date of the letter of the Complainant to the College. The Complainant is of the view that the health problems suffered by the Patient are the direct result of a flawed G-tube insertion. [13] The responses to these allegations were: From Dr. B: For some unknown reason, misinformation was circulating that the gastrostomy tube was in the wrong place, and that tube feeds were intraperitoneal. In fact this was false. The
DECISION NO. 2011-HPA-0018(a) Page 4 gastrostomy tube was intraperitoneal but suspected on the first tube irrigation with D5W. No feeds were infused. [The Registrant] replaced the tube in X-Ray the next morning. From the Registrant: she is correct in stating that I replaced his gastrostomy tube without consent. This may be viewed as a mistake but I felt that it was in the best interest of the patient. His gastrostomy tube was essentially rotting and all of the physicians involved with his care at the time of me performing that procedure all agreed that the gastrostomy tube needed to be replaced and that that would be the ideal time to replace it in the best interest of the patient. The fact that the tube was placed extra luminal and in an incorrect position is correct, however, we are lucky to have astute nursing staff who recognized there may be a problem with his G-tube and he was never fed through the misplaced tube. It was correctly placed in the stomach using radiological assistance within 24 hours of its initial placement by myself and subsequent to that, it functioned normally as any intra gastric gastrostomy tube should. [14] Other relevant evidence in the Record includes: (a) The Family Practice Resident, Dr. D, at the hospital in Y, in a Transfer Note to Dr. C (the Transfer Note ), the Patient s doctor in X,, states: A bladder biopsy, cystoscopy and suprapubic catheter were done on October 29. His catheter has drained urine well since it was inserted and he has had no difficulties with this. On the same day he had his gastrostomy tube changed in the operating room; however, the next day he was noted to be intolerant of feeds and an abdominal x-ray showed that the gastrostomy tube was actually located in the peritoneal cavity. He had received some flushes and tube feeds through the tube in the interim. The gastrostomy tube was replaced under x-ray guidance and placement was confirmed by Radiology. Regarding his tube feeds, the patient seemed to be intolerant of his feeds on multiple occasions and so he received several abdominal x- rays with contrast injected through the tube to confirm placement. On each study, the tube was confirmed to be in the stomach and not extravagating any contrast dye into the peritoneum. [emphasis added] (b) Nurse s notes from the hospital in Y where earlier in the same day the surgery was performed state at 16:30: Pt [Patient] up in wheelchair @ his and wife s request on way off floor. Attempt to give medications via G-tube, pt During flush, pt experiencing sudden pain to abdomen and Rt shoulder. Pt states can t breathe Pt moved back to room and transferred back to bed [emphasis added] [15] The College s November 2, 2010 letter, written on behalf of the Inquiry Committee, was based on a review of medical records and on written input from the Registrant and another physician. The College enclosed with its decision letter copies of the responses from the Registrant, Dr. B, the Transfer Note from the hospital in Y and a transfer summary from the Registrant to Dr. C., the Patient s doctor in X. [16] The College found that: Unfortunately, it would appear that you have gained some significant misperceptions about the sequence of events and the care that was provided. The College concluded that it was not critical of the care provided by the Registrant, based on the following findings it made following its investigation:
DECISION NO. 2011-HPA-0018(a) Page 5 The Registrant s action in changing the G-tube was not based on the consent of the family, but responded to a request from the treating physicians because the old one was literally rotting. Since he had a spinal anesthetic, this would be an ideal time to change the tube, thereby avoiding further anasthesia. With regard to the actual procedure, the College found: The tube was changed uneventfully. In accordance with normal protocol for feeding tubes, the patency of the tube and its placement are first checked by running sterile water down the tube before any medication or food is inserted. When water was put through the tube, the nurses appropriately noticed that your husband developed discomfort in his shoulder, which is characteristic of referred pain from the diaphragm meaning that the tube was not in proper position but was out of position in the abdominal cavity. Please note that it was not the lung cavity, as you allege. When the placement of the tube was re-checked the following morning, prior to anything else being run through it, it showed that the tip of the tube was outside of the stomach and, with the help of radiologists, it was reinserted and placed in proper position. The proper position was confirmed by x- ray. Instructions were left to keep re-checking the tube with sterile water for the first 24 hours and, if tolerated, then start normal feeding You are correct that the tube was misplaced. However, this was immediately recognized by running sterile water through the tube and, contrary to your assertion, no medication and no food went through the tube while it was misplaced. Furthermore, the misplacement did not put fluid or anything into the chest cavity, but rather some sterile water did enter the abdominal cavity producing the characteristic shoulder pain. The College therefore concluded that there is no evidence whatsoever that the subsequent chest problems were caused by the misplaced tube. The College noted that the Patient had been suffering from recurrent pneumonias. He did get sick with infection and pneumonia and was eventually seen by an infectious disease specialist He also developed Ascites, which is a collection of fluid in the abdomen which required drainage. It is not [sic] of note that this was not fluid that was coming from the gastronomy tube but is rather, a chronic condition possibly precipitated by a fungal infection or by other condition. Your husband died in February 2010 from recurrent lung and respiratory problems. Unfortunately this was almost a predictable result in someone with a serious injury such as your husband suffered. The College stated: In conclusion, the College is not critical of the care provided by [the Registrant]. While a formal, signed consent would have been ideal, under the circumstances, [the Registrant] responded to a request for intervention from your husband s caregivers and acted in good faith in your husband s best interest. The temporary misplacement of a gastrostomy tube is a common occurrence. This is why sterile water is used initially to test the placement of the tube. While the sterile water may cause some discomfort on a very temporary basis, there are no long-term, harmful
DECISION NO. 2011-HPA-0018(a) Page 6 effects. The misplacement was recognized and corrected before any damage was done. The subsequent problems that your husband suffered from and which ultimately caused his demise were unrelated to the tube placement. [17] In letters to the Review Board, the agent of the Complainant (the Agent ), after reviewing the hospital records, makes reference to the contradiction in the Patient s medical record at the hospital in Y and also enclosed a letter from Dr. C, the family doctor, who notes the same contradiction. Copies of those letters, as well as an affidavit from the Complainant, were sent to the College. The family doctor s letter stated, in part: Having reviewed the information that you received it would appear to me that the major area of dispute centers around the [Patient s] gastrostomy tube replacement. There would appear to be consensus information that initially his replacement tube was located in the peritoneal cavity rather than within the lumen of his stomach. Both the [Registrant] and [Dr. B] in their letters to the college contend that only sugar water was flushed through the tube and entered his peritoneal cavity, however the transfer note dictated by [Dr. D], family practice resident, clearly states that [the Patient] received both flushes and tube feeds prior to it being recognized that the tube was not correctly situated. As per our discussion you also have a very clear recollection of [the Patient] having medication administered through his gastrostomy tube in the immediate period post placement and prior to recognition of gastrostomy tube location in his peritoneal cavity. I do think it is noteworthy that the fluid that was drained from his abdominal cavity was described as clear ascites fluid which usually comes from inflammatory weeping from the tissue that covers intra-abdominal organs and his intra-abdominal/peritoneal cavity. In my opinion if he had a significant amount of enteral feed placed intra-abdominally I think the recovered fluid drained from his abdomen would be thicker and more purulent and likely to have initiated a bacterial peritonitis reaction. However, I would agree with you that there is inconsistency with regard whether or not the [Patient] was fed through the G-tube while it was mis-located. I believe that as part of your appeal process it would be important to examine [the Patient s] complete hospital record as there should be very clear notation as to what had been given through his G-tube immediately after placement and in the subsequent hours and days that followed. I do agree with the general observation that [the Patient] certainly had a number of significant medical co-morbidities that put him at high risk of life threatening illnesses, however I also would agree with you that when he left [X] there had been no obvious or significant worsening of his overall medical condition. Lastly, obviously the final event in the [Patient s] passing was related to blood loss into his abdominal cavity. I concur with the conclusion of the College that this more than likely would have come from his markedly atherosclerotic aorta. However, as I suspect you are left to wonder whether or not if there had been no complication associated with [the Patient s] G-tube replacement whether his health would have significantly declined as it did and whether or not the cascade of events that ultimately led to his demise would of occurred in the time frame that it did. [emphasis added] [18] On March 21, 2011, 20 days after the date of the last letter to the Review Board, the Deputy Registrar of the College issued a further letter to the Complainant addressing the matters raised by the Agent and Dr. C. This letter, which forms part of the College disposition process for purposes of this review, identified the contradiction and provides
DECISION NO. 2011-HPA-0018(a) Page 7 the College s analysis of the records, concluding that the Transfer Note from the hospital was incorrect: To summarize, the notes recorded at the time, on October 29 and 30, document that only a small flush of sterile water was put through the misplaced G-tube. The nurse caring for [your husband] immediately recognized that his excessive discomfort suggested a significant problem. [Dr. X] was immediately consulted and all feeds and medications were held. The G-tube was not used until it had been replaced at 10:00 a.m. on October 30 by [Dr. Y] in the X-ray Department and proper placement confirmed. On this basis, we are able to assure you that [the medical resident s] transfer note is incorrect. [The Patient] clearly did not receive medications or feeds through the misplaced gastronomy tube. III ISSUES [19] The issues we have to decide in this Application are: IV (1) Has this case been lawfully decided by the Registrar under s.32(3) of the Act or ought it to have been referred to the Inquiry Committee under s.32(2)? (2) If lawfully decided by the Registrar was the investigation adequate and the disposition reasonable? JURISDICTION OF THE REGISTRAR A. Why this issue arises [20] The Review Board has in several recent decisions sought to confront difficulties that have arisen from this College s practice of making it appear that the College s Inquiry Committee has actually reviewed and assessed a complaint, when it turns out, after the College Record has been filed with the Review Board, that the dismissal decision was actually made by the Registrar. [21] This case is a good example. The College s November 2, 2010 disposition letter to the complainant stated in its opening paragraph, and in its signature block, that the letter was written on behalf of the Inquiry Committee of the College. The final paragraph of that same letter states: The Inquiry Committee thanks you for bringing your concerns to the attention of the College. We have performed a comprehensive review [22] The suggestion that this disposition was made by the Inquiry Committee is also made in a letter of the same date (November 2, 2010) from the College to the Registrant: I enclose a copy of the correspondence to [the complainant] which sets out the opinions of the Inquiry Committee. As you will note, the Inquiry Committee had no criticism of your clinical care in this instance. [23] The Review Board s Rules of Practice and Procedure require Colleges to identify which documents from the Record were actually placed before the Inquiry Committee.
DECISION NO. 2011-HPA-0018(a) Page 8 This College does this by placing a triangle on the Record index next to the item or items that were placed before the Inquiry Committee. [24] In this case, the Record index reveals a nearly 500 page investigative record. Out of all that, only a single page was placed before the Inquiry Committee. That page is a document entitled Inquiry Committee Disposition Summary. Beyond naming the parties and other involved persons, the sum total of the document is as follows: Summary of complaint [Registrant] place [sic] the feeding tube in the wrong location infection due to food being pushed into chest cavity. Dr. then left on vacation for 10 days. Summary of Disposition Disposition for: [Registrant] Disposition: Not sustainable. Disposed of under section 32(5) of the HPA. No action required. Reason: Other. Other Desc. Clinical performance met standard of care. Conduct was acceptable. [25] As the College acknowledged in its written submission, the substantive disposition was not in fact made by the Inquiry Committee. The College states that this was a disposition of the Registrar under s.32(3)(c) of the Act. [26] Clarity regarding who actually made the disposition decision is important. The Registrar is a staff position within the College, appointed at the pleasure of the College s Board. The Inquiry Committee is a specialized committee of the College, consisting of nine persons appointed by the Board, which must include the president and vicepresident of the Board and at least a third of the Committee must be public representatives: see Review Board Decision No. 2009-HPA-0045(a), paras. [16]-[19]. [27] The Registrar s legal authority differs from that of the Inquiry Committee. The Registrar s authority to act independently is limited by s.32(3) of the Act: 32 (3) Despite subsection (2), the registrar, if authorized by the board, may dismiss a complaint, or request that the registrant act as described in section 36 (1), without reference to the inquiry committee if the registrar determines that the complaint (a) is trivial, frivolous, vexatious, or made in bad faith, (b) does not contain allegations that, if admitted or proven, would constitute a matter subject to investigation by the inquiry committee under section 33 (4), or (c) contains allegations that, if admitted or proven, would constitute a matter, other than a serious matter, subject to investigation by the inquiry committee under section 33 (4). [28] The Inquiry Committee s jurisdiction, as set out in s.33(6) of the Act, goes beyond the power of the Registrar under s.32(3):
DECISION NO. 2011-HPA-0018(a) Page 9 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. [29] As reflected in this case, the College does a commendable job in its disposition letters explaining its decisions in plain language. However, its letters should accurately represent who actually made the decision and the authority under which it was made. A complainant should be told who made the disposition (the Registrar or the Inquiry Committee) and on what basis his or her complaint was disposed of under s.32(3)(a)-(c) or 33(6)(a)-(d). [30] This is important for both transparency and accountability. As the Review Board has previously emphasized (see Decision No. 2009-HPA-0027(a)), a fundamental purpose of the statutory reforms of 2008 creating a complainant s right to review College complaint dispositions was to enhance College decision-making accountability. [31] College dispositions can now be set aside if they are unreasonable: s.50.6(5)(b). A disposition made without authority is unreasonable because it has no legal justification and does not produce an outcome that is defensible in law. 1 While the Inquiry Committee communicates the disposition (Act, s.34), Colleges should transparently tell complainants who the actual decision-maker was, so that the Complainant can fairly assess whether, in a case such as this, the Registrar even had the authority to make the decision under s.32(3), discussed in more detail below. [32] Also relevant are ss.32(4) and (5) of the Act, which come into play when the Registrar has acted under s.32(3): 32 (4) If a complaint is disposed of under subsection (3), the registrar must deliver a written report to the inquiry committee about the circumstances of the disposition. (5) A disposition under subsection (3) is considered to be a disposition by the inquiry committee unless the inquiry committee gives the registrar written direction to proceed under subsection (2). [33] The statement in s.32(5) that a registrar s disposition is considered to be a disposition by the inquiry committee does not require the College to obscure who made 1 In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Court stated as follows at para. 47: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
DECISION NO. 2011-HPA-0018(a) Page 10 the decision. Nor does it change the legal reality made plain in the opening words of s.32(5) - that the disposition was made under s.32(3). If the decision was made outside s.32(3), section 32(5) cannot be read as retroactively validating unlawful decisions. 2 Section 32(5) serves other purposes. One is to give the inquiry committee the opportunity to direct that it (and not the registrar) will make the decision following an investigation under s.32(2): As soon as practicable after receiving a complaint, the registrar must deliver to the inquiry committee a copy of the complaint, an assessment of the complaint and any recommendations of the registrar for the disposition of the complaint. The other purpose of s.32(5) is to ensure that registrar s decisions comply with the notification requirements in s.34 and 36(1.1) of the Act and are reviewable by the Review Board under s.50.6 of the Act: 34 If the inquiry committee disposes of a matter under section 32 (5) or 33 (6) (a) or (b), the inquiry committee must, within 30 days of disposition, deliver to the complainant, if any, a written summary of the disposition advising the complainant of the right to apply for a review by the review board under section 50.6. 36 (1.1) If a consent or undertaking given under subsection (1) relates to a complaint made under section 32 (1), the inquiry committee must, within 30 days of the consent or undertaking being given, deliver to the complainant a written summary of the consent or undertaking advising the complainant of the right to apply for a review by the review board under section 50.6. 50.53 (1) The review board has the following powers and duties: (c) on application by a complainant under section 50.6, to review a disposition of a complaint made by the inquiry committee under section 32(3), 33(6) (a) to (c) or 37.1; 50.6 (1) A complainant may apply to the review board for a review of a disposition described in section 50.53 (1) (c). [34] Thus, even though the disposition is considered to be a disposition by the inquiry committee, a complainant still needs to know that the disposition was made by the Registrar under a particular ground in s.32(3). The College s letters should not leave complainants with the misapprehension that the inquiry committee actually gave independent consideration to the merits of his or her complaint when that did not happen or, what is worse, that it did so with no regard for anything in the investigative record. A Complainant should not have to search for the triangle to determine who made the decision, or learn about it half-way through the Review Board process. B. Did the Registrar have jurisdiction to make this disposition? [35] In Decision No. 2009-HPA-0045(a) (June 23, 2011), the Review Board attempted to provide guidance to Colleges about a Registrar s role relative to that of the Inquiry Committee. In this regard, ss.32 and 33 of the Act state as follows: 32 (1) A person who wishes to make a complaint against a registrant must deliver the complaint in writing to the registrar. 2 The Act could not do that even if the Legislature wanted it to. Legislatures cannot immunize from review decisions made outside jurisdiction: Crevier v. A.G. Canada, [1981] 2 S.C.R. 220.
DECISION NO. 2011-HPA-0018(a) Page 11 (2) As soon as practicable after receiving a complaint, the registrar must deliver to the inquiry committee a copy of the complaint, an assessment of the complaint and any recommendations of the registrar for the disposition of the complaint. (3) Despite subsection (2), the registrar, if authorized by the board, may dismiss a complaint, or request that the registrant act as described in section 36 (1), without reference to the inquiry committee if the registrar determines that the complaint (a) is trivial, frivolous, vexatious, or made in bad faith, (b) does not contain allegations that, if admitted or proven, would constitute a matter subject to investigation by the inquiry committee under section 33 (4), or (c) contains allegations that, if admitted or proven, would constitute a matter, other than a serious matter, subject to investigation by the inquiry committee under section 33 (4). (4) If a complaint is disposed of under subsection (3), the registrar must deliver a written report to the inquiry committee about the circumstances of the disposition. (5) A disposition under subsection (3) is considered to be a disposition by the inquiry committee unless the inquiry committee gives the registrar written direction to proceed under subsection (2). 33 (1) If a complaint is delivered to the inquiry committee by the registrar under section 32(2), the inquiry committee must investigate the matter raised by the complainant as soon as possible. (4) The inquiry committee may, on its own motion, investigate a registrant regarding any of the following matters: (a) a contravention of this Act, the regulations or the bylaws; (a.1) a conviction for an indictable offence; (b) a failure to comply with a standard, limit or condition imposed under this Act; (c) professional misconduct or unprofessional conduct; (c.1) [Repealed 2008-29-34.] (d) competence to practise the designated health profession; (e) a physical or mental ailment, an emotional disturbance or an addiction to alcohol or drugs that impairs his or her ability to practise the designated health profession.
DECISION NO. 2011-HPA-0018(a) Page 12 (5) The inquiry committee must request the registrant who is the subject of an investigation under this section to provide it with any information regarding the matter that the registrant believes should be considered by the inquiry committee. (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. (7) If the inquiry committee acts under subsection (6) (b) to (d), it may award costs to the college against the registrant, based on the tariff of costs established under section 19 (1) (v.1). [36] In Decision No. 2009-HPA-0045(a), the Review Board described these provisions as creating two complaint streams, flowing from the receipt of a complaint by the Registrar as gatekeeper : Stream 1, the reporting and recommendations stream, where the Inquiry Committee will be the decision-maker, supported by the Registrar s assessment and recommendations under s.32(2) and the investigation under s.33(1): see 2009-HPA-0045(a), paras. 22-31. Stream 2, the registrar s decision stream, where the Registrar acts independently under s.32(3): see 2009-HPA-0045(a), paras. 32-45. [37] The present case gives the Review Board the opportunity to revisit certain obiter dicta statements that were made in Decision No. 2009-HPA-0045(a) with regard to the Registrar s role in each stream. We find, in hindsight, that some of those statements did not accurately describe the Registrar s mandate. The Review Board has convened a panel of five members in this case to clarify our views for the assistance of Colleges moving forward. C. Stream 1 [38] We start by reproducing several paragraphs from the discussion in Review Board Decision No. 2009-HPA-0045(a) regarding Stream 1: [22] The first stream is the "reporting and recommending" stream, described in s.32(2). In this stream, the Inquiry Committee will be the decision-maker. The Registrar's initial task in this stream is to deliver to the Inquiry Committee a copy of the complaint, an assessment of the complaint and any recommendations for its disposition. [23] The Registrar's report to the Inquiry Committee is the first step. The Inquiry Committee, upon receiving a report, must then investigate the complaint in accordance
DECISION NO. 2011-HPA-0018(a) Page 13 with s.33(1) of the Act, must comply with s.33(5) and then finally may make one of the dispositions described in s.33(6) [24] The Act is silent on the process the Registrar can follow prior to making his or her report to the Inquiry Committee. [25] It seems to us that the Registrar must have some flexibility here, and that the Registrar is implicitly permitted to undertake those inquiries that are reasonably necessary for the purposes of preparing the Registrar's Report (the Report ) - recognizing that upon receiving the Report, the Inquiry Committee must itself investigate the matter raised by the complaint. However, the Registrar s role in this stream is preliminary, and ought not to usurp the Inquiry Committee's investigation function which is tied to its decision-making function under s.33. [26] It is noted that pursuant to s.4-3 of the Bylaws that this College has adopted, the Registrar is to carry out the Inquiry Committee's investigation. However, the Act and Bylaws clearly contemplate that the investigation is to take place after the Registrar has reported and been directed to investigate by the Inquiry Committee. [27] This is not a technicality. It ensures that the Inquiry Committee, which is accountable for making the ultimate disposition, has the opportunity not only to be briefed before the investigation, but to issue any directions it considers important regarding the investigation, including whether the Registrant should be required to attend for interview by the Inquiry Committee or the Registrar... [29] The Act is again silent on the process the Inquiry Committee must follow after the investigation. [30] However, it is in our view necessarily implicit that as the decision-maker accountable for the decision, the Inquiry Committee must have access to a package consisting of the pertinent investigative documents in the investigative record bearing on the review. In conjunction with this access, the Inquiry Committee, given its nature, must also be allowed to receive staff summary reports, assistance and draft recommendations and even draft reasons, with the aim of enabling the Inquiry Committee to engage in a meaningful and independent assessment of the complaint investigation. [31] The process must ultimately serve its purpose, which is not that of a rubber stamp. In this stream, the purpose of the entire process is to ensure that the complainant ultimately has the Inquiry Committee's considered and independent judgment about which option available to it under s.33(6) is appropriate in the circumstances. Thus, in complaints arising under this stream, a disposition cannot be reasonable, and an investigation cannot be adequate, if the Inquiry Committee is merely approving a draft decision without any independent review of the complaint and assessment of the pertinent investigative material. [39] The above discussion - and paragraph [25] in particular - attempted to reconcile an apparent conflict between s.32(2) and s.33(1) of the Act. It is necessary to look at that conflict in more detail. [40] On one hand, section 32(2) of the Act requires the Registrar to deliver to the inquiry committee, as soon as practicable after receiving the complaint, a copy of the complaint, an assessment of the complaint and any recommendations of the registrar for the disposition of the complaint. To exercise this function, the Registrar needs to be able
DECISION NO. 2011-HPA-0018(a) Page 14 to do the things that are necessary to meaningfully exercise it. 3 The plain meaning of assess is to evaluate or estimate the nature, ability, or quantity of (Oxford English Dictionary second edition, revised). The need for critical evaluation is reinforced by the power to make recommendations regarding the disposition of the complaint. To do all this, one would expect the Registrar to be able to put a package together for the Inquiry Committee in which he or she has examined the allegations contained in the complaint, gathered and evaluated the evidence and made any recommendation for the disposition of the complaint. This, by any other name, involves investigating the complaint. [41] The problem arises because s.32(2) must be read with s.33(1), which states that if a complaint is delivered to the inquiry committee under s.32(2), the inquiry committee must investigate the matter raised by the complainant as soon as possible. The word investigation is used only in s.33, not in s.32. Under s.33(1), an investigation is to be conducted by the Inquiry Committee, after the delivery of the complaint by the registrar under s.32(2). [42] The concern in Decision No. 2009-HPA-0045(a) was that section 33(1) would have little meaning if the investigation had already been completed by the Registrar before the Inquiry Committee ever received the complaint. In fact, College By-law 4-3 makes clear that the investigation function in any particular case is delegated to the Registrar only after the matter is referred to the Inquiry Committee under s.33. Section 32(2) cannot be read in a way that makes s.33(1) meaningless. Paragraph [25] of Decision No. 2009-HPA-0045(a) was an attempt to reconcile these provisions. [43] But the question is further complicated, because under s.32(3), the Registrar has the independent power, despite s.32(2), to make a request under s.36(1), or to dismiss a complaint without reference to the Inquiry Committee. As discussed further below, we have concluded in a departure from the reasoning in Decision No. 2009-HPA-0045(a) - that the Registrar must have the power to investigate before he can make a request under s.36(1), and must have the power to investigate some classes of cases falling under s.32(3). 4 The proper interpretation must recognize that in some of those instances, the Registrar s investigation may well be over before he or she determines that the matter should be referred to the inquiry committee for further action in a report under s.32(2). [44] To make matters even more complicated, s.32(5) of the Act, already cited above, provides that where the Registrar decides to dismiss a complaint under s.32(3) after investigation, the Inquiry Committee still has the power to require the Registrar to proceed under subsection (2) in other words, to provide it with the complaint, a report and recommendations, which would again trigger s.33(1). Again, this is a situation where the Registrar s investigation is already concluded. [45] One thing is sure. There is no simple or elegant way to reconcile these provisions for all types of cases. In this situation, our objective is to interpret statutory provisions to harmonize the components of legislation as much as is possible in order to minimize 3 Section 27(2) of the Interpretation Act, R.S.B.C. 1996, c. 238 states: If in an enactment power is given to a person to do or enforce the doing of an act or thing, all the powers that are necessary to enable the person to do or enforce the doing of the act or thing are also deemed to be given. 4 The reasons for our conclusion on this are discussed further below.
DECISION NO. 2011-HPA-0018(a) Page 15 internal inconsistency. 5 The proper approach to interpretation should be one that allows the College to function effectively, avoids violence to the statutory text, and harmonizes the provisions to the extent possible. [46] As already noted, Decision No. 2009-HPA-0045(a) sought to reconcile these provisions by stating as follows in paragraph [25]: [25] It seems to us that the Registrar must have some flexibility here, and that the Registrar is implicitly permitted to undertake those inquiries that are reasonably necessary for the purposes of preparing the Registrar's Report (the Report ) - recognizing that upon receiving the Report, the Inquiry Committee must itself investigate the matter raised by the complaint. However, the Registrar s role in this stream is preliminary, and ought not to usurp the Inquiry Committee's investigation function which is tied to its decision-making function under s.33. [47] We agree that s.33(1) must not be ignored or read out of the Act. At the same time, we do not think, as is implicit in the paragraph just quoted, that s.33(1) goes so far as to make the Inquiry Committee the exclusive body that is capable of investigating. We say that especially after a careful examination of the functions the Registrar has expressly and implicitly been given, as discussed further under Stream 2 below. [48] We think a better way to reconcile all these provisions is to conclude that the Registrar has room to conduct those investigations he or she considers necessary to fulfill his functions, including the reporting and recommendations function, and then to recognize that when the matter comes before the Inquiry Committee under s.33(1), the Inquiry Committee is itself still under a statutory duty to investigate the complaint. This will in every case mean that regardless of what investigations the Registrar has done leading up to the report, the Inquiry Committee must assess the information it has been given, and then give the Registrar whatever instruction it considers necessary under Bylaw 4-3 to further investigate the matter as the Inquiry Committee s delegate. In some cases, the additional work may be extensive; in other cases, it may be minimal. In either case, s.33(1) is respected by recognizing that upon referral to the Inquiry Committee by the Registrar, the Inquiry Committee assumes ownership and responsibility over the investigation and has to consider each case that comes before it on its merits. This reinforces the point, emphasized in Decision No. 2009-HPA-0045(a), at paras. [30]-[31], that the Inquiry Committee is the accountable decision-making body in Stream 1, and not a rubber stamp. 6 D. Stream 2 [49] Stream 2 focuses on the Registrar s power to act independently, set out in s.32(3). In Decision No. 2009-HPA-0045(a), the Review Board said this about that power: 5 Willick v. Willick, [1992] 1 S.C.R. 3 at 38. 6 This also means that when this Review Board reviews an Inquiry Committee disposition made under s. 33, the adequacy of the investigation will include the entire investigation, including the investigation undertaken by the Registrar.
DECISION NO. 2011-HPA-0018(a) Page 16 [33] Section 32(3) does not give the Registrar complete discretion about whether to refer a complaint to the Inquiry Committee. The Registrar's ability to act independently under s.32(3) is narrower than that of the Inquiry Committee in s.33(6) [34] While both the Registrar and the Inquiry Committee may find a complaint to be trivial, frivolous, vexatious or made in bad faith, only the Inquiry Committee may dismiss a complaint on the basis that "the conduct or competence to which the matter relates is satisfactory": Act, s.33(6)(a). Further, only the Inquiry Committee may take action it considers appropriate to resolve the matter between the Complainant and the Registrant or decide whether a citation ought to be issued: s.33(6)(b) and (d) or award costs to the College: s.33(7). [35] Under ss.32(3)(b) of the Act, the Registrar may also act independently where the Inquiry Committee has no jurisdiction in a case where, even assuming all the facts are true, the subject matter of the complaint is not something the Inquiry Committee can investigate under s.33. Finally, under s.32(3)(c) of the Act, the Registrar may act independently where he or she is satisfied that even if the complaint is within jurisdiction and even if it were proved before a discipline committee, the outcome would not normally be more serious than a reprimand. [36] The Legislature's decision to give the Registrar a limited right to dispose of complaints independently is consistent with the larger philosophy that complaints within jurisdiction, which are not trivial and which would, if proven or admitted, normally give rise to more than a reprimand, should be investigated and decided by the Inquiry Committee under the "reporting and recommendations" process stream in s.32(2). [37] This makes common sense. Only the Inquiry Committee has been authorized to assess conduct or competence as "satisfactory" (s.33(6)(a)) on the one hand, or direct a citation to be issued on the other, s.33(6)(d). To allow a Registrar to independently exercise those judgments in the absence of those powers would improperly usurp the Inquiry Committee's specialized role under the legislation. [38] We note that just as the Act is silent on the process the Registrar must follow before making a report to the Inquiry Committee, the Act is silent on the process the Registrar can or must follow before making a decision under s.32(3). [39] In our view, it is clear that the Registrar s process must be tied specifically to the gate-keeping function he or she has the jurisdiction to exercise under s.32(3). [40] Where a complaint is dismissed under ss.32(3)(b) and (c), the Act is clear that the decision must be based on the allegations in the complaint. Subject only to following up with a complainant to clarify the allegations, it is clear that these dismissal decisions must be based solely on the allegations. [41] For a decision dismissing a complaint under s.32(3)(a), or to request that the registrant act as described in section 36(1), we think that the Registrar requires the additional flexibility to make appropriate follow up inquiries with the complainant and registrant. In some cases for example, a complaint that does not appear trivial, frivolous or vexatious on its face may quickly prove to meet the test after preliminary follow up inquiries with the complainant and registrant. [42] It must be clear however that these inquiries are not intended to usurp the investigation function which has been vested in the Inquiry Committee. If the proper disposition of the complaint requires an investigation, then the ultimate disposition of the
DECISION NO. 2011-HPA-0018(a) Page 17 complaint must be made within the Inquiry Committee s mandate under Stream 1. In those cases where an informed decision cannot be made without a formal investigation and this may include some cases that are ultimately dismissed as trivial, frivolous or vexatious under the Inquiry Committee s independent power in s.33(6)(a) - what the Registrar ought to be doing is writing a report to the Inquiry Committee under s.32(2), proceeding with the investigation (usually under delegated authority from the Committee), and having the matter decided by the Inquiry Committee based on the investigative record and under its independent statutory authority. [50] As noted above, we respectfully depart from the view that the Inquiry Committee has exclusive jurisdiction to investigate complaints. In our view, an investigation mandate is necessarily implicit not only in the Registrar s s.32(2) function, but also flows from a detailed examination of the Registrar s functions under s.32(3), quoted again below for reference: 32 (3) Despite subsection (2), the registrar, if authorized by the board, may dismiss a complaint or request that the registrant act as described in section 36(1) without reference to the inquiry committee if the registrar determines that the complaint (a) is trivial, frivolous, vexatious, or made in bad faith, (b) does not contain allegations that, if admitted or proven, would constitute a matter subject to investigation under section 33(4), or (c) contains allegations that, if admitted or proven, would constitute a matter, other than a serious matter, subject to investigation by the inquiry committee under section 33(4) [51] Requesting that the Registrant act as described in s.36(1) Section 32(3) is not just a dismissal power. Section 32(3) also gives the Registrar the power to ask a registrant to agree to the undertakings and consents described in s.36(1) of the Act: 36 (1) In relation to a matter investigated under section 33, the inquiry committee may request in writing that the registrant do one or more of the following: (a) undertake not to repeat the conduct to which the matter relates; (b) undertake to take educational courses specified by the inquiry committee; (c) consent to a reprimand; (d) undertake or consent to any other action specified by the inquiry committee. (1.1) If a consent or undertaking given under subsection (1) relates to a complaint made under section 32 (1), the inquiry committee must, within 30 days of the consent or undertaking being given, deliver to the complainant a written summary of the consent or undertaking advising the complainant of the right to apply for a review by the review board under section 50.6. [52] As made clear from the opening words of s.32(3), section 36(1) is in play for the Registrar in every case where the complaint falls within the scope of s.32(3)(a), (b) or (c) (though in reality, one could only envision its being used in cases under s.32(3)(c)).