Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Psychologists of British Columbia DECISION NO. 2017-HPA-112(a) March 15, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Psychologists of British Columbia COLLEGE AND: A Psychologists REGISTRANT BEFORE: John M. Orr, Q.C., Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on December 15, 2017 APPEARING: For the Complainant: Self-represented DECISION ON APPLICATION FOR REVIEW OF AN INQUIRY COMMITTEE DISPOSITION DECISION I INTRODUCTION [1] This application for review under the Health Professions Act, RSBC 1996, c. 183, (the Act ) was made to the Review Board in response to the Inquiry Committee decision communicated to the Complainant by the Registrar s letter of July 21, 2017 (the Disposition ). [2] The Complainant was a litigant in a family law proceeding in the Supreme Court of British Columbia. The litigation included issues of custody and access to the four children of the marriage. The three older children were from the Complainant s previous marriage. The fourth and youngest was the biological child of her spouse. The Registrant was appointed by the Court to provide an independent expert report to the Court pursuant to s.211 of the Family Law Act with respect to the four children. [3] The litigation was settled before the Registrant submitted her s.211 report. However, during the course of the Registrant s assessment, the Complainant had lodged a complaint to the College about how the Registrant was carrying out her investigation and the fees she charged.
[4] The Complainant s letter of complaint to the Inquiry Committee was extensive and included supporting materials. The Inquiry Committee analyzed the complaints and identified 14 specific allegations. The Inquiry Committee noted that during the course of the investigation a further five allegations were made by the Complainant for a total of 19 identified complaints. [5] Following an investigation, the Inquiry Committee decided to take no further action in the matter of the complaints against the Registrant pursuant to s.33(6)(a) of the Act. The Inquiry Committee provided a written summary of its disposition pursuant to s.34 of the Act, for review by the Review Board under s.50.6. [6] An Application for a review of the Inquiry Committee disposition was received by the Review Board on August 23, 2017. The Complainant s Statement of Points was received on December 15, 2017. [7] The Complainant made extensive submissions to the College and Review Board during this process. I have read and considered all these submissions. I conclude that the investigation was adequate and the Disposition reasonable and my order is that the Disposition be confirmed. II HEARING PROCESS [8] The Review Board utilizes a two-stage hearing process as set out in Rule 44 of the Review Board Rules of Practice and Procedure for Reviews under the Health Professions Act, R.S.B.C. 1996, c. 183. To proceed to a Stage 2 hearing I would need to find at Stage 1 the need for further submissions from the College and Registrant prior to being able to properly adjudicate this matter. For the reasons set out below, I determined that I could fairly, properly and finally adjudicate this matter without the need for further submissions. III THE APPLICATION FOR REVIEW [9] The Complainant alleges that the Inquiry Committee trivialized and fragmented her complaints by breaking down her complaints into 19 separate allegations. She submits that she made five complaints: That the Registrant was biased, negligent, misled the Court, misappropriated trust funds and breached her own contractual terms. [10] The Complainant submits that the Inquiry Committee: Failed to investigate that the Registrant fabricated an interview with a police officer; Failed to require production from the Registrant of her records; Failed to address that the Registrant misled the Court about the status of her report; Failed to adequately address that the Registrant did not take into account issues of Autism; Failed to address the Registrant s impropriety in enquiring into the Complainant s history of incestual sexual activity; Minimized the issues of bias and breaches of the ethical code; and
Failed to address the Registrant s grossly inflated fees and unethical billing practices. IV COMPLAINANT S STATEMENT OF POINTS [11] The Complainant s Statement of Points elaborates on a number of issues raised in her application for review. She again submits that the Inquiry Committee trivialized her complaints by fragmenting many of her complaints. She gives an example that the Inquiry Committee did not address that the Registrant enquired into her sexual history which the Complainant says was irrelevant to the custody and access report. [12] The Complainant alleges that the Inquiry Committee unreasonably delayed their investigation while the s.211 report was still in progress and thereby failed to prevent scrutiny over the Registrant during the ongoing assessment. [13] The Complainant alleges that the Inquiry Committee adopted the Registrant s views that the complaint was a fishing expedition to influence the litigation and that the Inquiry Committee investigation was biased. [14] The Complainant alleges that the Inquiry Committee failed to take into account the purpose of the s.211 assessment, that the Registrant failed to complete her report in a reasonable time and that she failed to take into consideration relevant issues such as the diagnosis reports and opinions in regard to two of her children. Further, the Registrant only focused on her spouse s young child and not her three older children. [15] The Complainant submits that the Inquiry Committee did not address her complaint that the Registrant was biased as set-out in her 9-page letter of December 4, 2016. [16] The Complainant submits that the Inquiry Committee failed to address her complaints about the Registrant s methodology. [17] The Complainant submits that the Inquiry Committee failed to adequately address the Registrant s over-billing and unethical billing practices. [18] The Complainant submits that the Inquiry Committee dismissed her complaints by grouping her in with high conflict litigants who maliciously pursue their psychologist with false complaints. V REVIEW BOARD [19] The Review Board exists in part to provide, upon an application for review by a complainant, impartial and objective reviews of complaint dispositions of Inquiry Committees of the health profession colleges of British Columbia. These are reviews of college investigations and dispositions and not fresh investigations or fresh dispositions of those complaints. My mandate is to determine whether the Inquiry Committee conducted an adequate investigation and whether its disposition of the matter was reasonable.
[20] Prior to setting out my decision on the adequacy and reasonableness of the Disposition, I provide for convenience the key sections of the Act relevant to this matter. VI STATUTORY PROVISIONS GOVERNING THE REVIEW BOARD [21] Section 50.6(5) of the Act defines what the Review Board must consider: On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. [22] Section 50.6(6) of the Act stipulates that a review under this section is a review on the record. The record, in this context, refers to the record of investigation provided by the College (the Record ) and the submissions of the Complainant. [23] Section 50.6(8) of the Act stipulates that upon completion of its review under this section, the review board may make an order: (a) confirming the disposition of the inquiry committee, (b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (c) sending the matter back to the inquiry committee for reconsideration with directions. [24] In addition to the Act, the Review Board is guided by administrative law principles. Specifically, I draw the Complainant s attention to a well-established principle set out in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405. At para. [3], This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable. [25] Consistent with the guidance set out above I have not commented on every issue raised by the Complainant. Rather, I have considered the investigation, the Disposition, and the Complainant s submissions in the context of the Record as a whole. VII ADEQUACY OF THE INVESTIGATION [26] The Act requires that I consider the adequacy of the investigation. The Inquiry Committee s investigation need not be perfect, but it must be adequate. What is considered adequate will differ from case to case. [27] What constitutes an adequate investigation in the context of the Review Board was well defined in Review Board Decision No. 2009-HPA-0001(a) to 0004(a) paras. [97] and [98]:
[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. [28] The test of adequacy will be met if I am satisfied that the Inquiry Committee took reasonable steps to obtain information relevant to their assessment of the Complaint. This test can be met without exhausting all possible avenues of pursuit in the quest for investigative information. [29] In this matter, I find in summary that, upon receipt of the Complaint on May 5 2016, the Inquiry Committee followed due process in conducting its investigation. The Inquiry Committee: (a) Provided a letter to the Complainant explaining the process and the obligation of the Inquiry Committee to conduct its investigation in accordance with s.33 to 36 of the Act and the principles of administrative law including notice and the right to reply balanced with regulating in the public interest; (b) Provided a letter to the Registrant explaining the process, providing the Registrant with a copy of the Complaint and requesting a response to the Complaint; (c) Met in May, June and July 2016 to consider the complaint and a summary of the complaints prepared for their consideration; (d) On July 15, 2016 the College s legal counsel spoke with the Complainant to clarify the concerns and explain that it would not be within the mandate of the Inquiry Committee to change the expert assessment or to adjudicate a fee dispute; (e) Sent a letter on September 26, 2016, to the Registrant requesting her written response to the 14 specific complaints identified by the Inquiry Committee analysis of the complaint; (f) Received a letter from the Registrant responding to each of the complaints with supporting documentation; (g) Sent the Complainant a copy of the Registrant s letter and documentation and invited any further comments; (h) Received and considered a letter from the Complainant on December 7, 2016, in response to the Registrant s letter and seeking an expedited disposition;
(i) Sent a letter to the Complainant explaining that they could not be influenced by external deadlines such as court dates and further explaining the Inquiry Committee investigation requirements and process; (j) Shared the Complainant s December 7th letter with the Registrant and because there were new allegations invited any further submissions; (k) Referred the matter to the Review Board in January 2017 because of the expiry of time limitation and received direction to continue and complete the investigation by July 31, 2017: Review Board Decision 2017-HPA-007; (l) Received and considered the Registrant s response to the new allegations; (m)shared the Registrant s letter with the Complainant; (n) On April 3, 2017, and May 3, 2017, received and considered further letters from the Complainant with additional complaints. Due to time constraints further submission from the Registrant was not requested; (o) Received a letter on June 4, 2017, that the litigation had been settled: and (p) Then considered in detail the 19 different complaints extracted from the very extensive submissions, prepared the Disposition and provided it to the Complainant and the Registrant. [30] I have considered the Complainant s submissions on the adequacy of the investigation. I have considered the whole of the Record produced and the detailed and comprehensive Investigation Report and conclude that the investigation was adequate. While it may not have addressed every single item of complaint amongst the many raised by the Complainant I find that overall it thoroughly addressed the substance of the complaint. [31] It is very evident that the Inquiry Committee was cognizant of the difficulties and challenges faced by clients in custody and access litigation and for psychologists in acting as independent assessors reporting to the Court. However, in discussing these issues there is no evidence that would suggest that the Inquiry Committee was influenced or biased against the Complainant. Every issue was carefully considered and addressed in the 28-page report. [32] In my opinion the delays in completing the investigation were not deliberate or unreasonable, especially when it is taken into account that the Complainant added additional complaints at every stage along the process. [33] The Inquiry Committee investigated and considered the issue of perceived bias but did not find any substantial basis for this claim given that the assessment report was never completed due to the litigation being settled. It would only be conjecture to find that the assessment report would be biased against the Complainant. [34] The issue in regard to the allegedly fabricated police information was considered by the Inquiry Committee in the context of the overall assessment process and may have not been further investigated for its accuracy. However, this was one point
amongst a great many issues. Whether or not it was further investigated does not detract from the overall adequacy of the investigation. [35] On my review of the Record the Inquiry Committee had sufficient disclosure of documentation to conduct their investigation and shared this with the Complainant. While the Complainant may have wished for access to more of the Registrant s file she always had access to the Court to acquire any disclosure necessary for the litigation. The documentation provided was adequate for the purpose of the Inquiry Committee s investigation of the complaints. [36] The Inquiry Committee also investigated the allegations in regard to the Registrant s methodology but saw nothing in the materials to indicate that the Registrant carried out the assessment in any way other than in accordance with her professional views as to what was needed to provide a report that would appropriately assist in determining the best interests of the children. The Inquiry Committee found no basis to be critical of the Registrant in her methodology or conduct of the assessment. [37] There were several complaints involving the Registrant s billing practices and alleged over-billing. The Inquiry Committee notes that it is generally outside the College s regulatory mandate to adjudicate fee disputes between the registrants and their clients but they can consider whether the billing practices were compliant with the Code of Conduct. The Inquiry Committee then considered each of the allegations and determined that the Registrant did not appear to have breached any professional standards in any of the billing disputes. [38] The overall complaint as characterized by the Complainant was that the Respondent was biased, negligent, misled the Court, misappropriated trust funds and breached her own contractual terms. I am satisfied that these issues were investigated and considered within the 19 headings identified in the Investigation Report and to the extent that they fell within the mandate of the College. [39] This was a detailed, thorough and comprehensive investigation and there is no information before me that would lead me to conclude that further investigation by the Inquiry Committee was warranted. I find that the Inquiry Committee conducted an investigation that was appropriate for the facts in this case and I have determined that the investigation was adequate. VIII REASONABLENESS OF THE DISPOSITION [40] In considering the reasonableness of the Disposition, the Review Board has jurisdiction to define and apply a reasonableness test. [41] A definition of reasonable that accords with the current state of the law is whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. A reasonable disposition should be transparent in that it is clear as to how the Inquiry Committee arrived at its conclusion, intelligible in that it is clearly expressed and easy to understand, and justified in that the reader should be able to understand the factual and legal foundation for the Inquiry
Committee s conclusion. This is the standard against which I have assessed whether the Inquiry Committee s disposition was reasonable. [42] In the Investigation Report, the Inquiry Committee presented a detailed analysis of the complaints that aligns with the evidence and submissions of the Complainant and the responses of the Registrant. Although the Complainant complained about the fragmentation of her complaint I find that this was a useful way to identify and analyze the complaints and that it did not trivialize them. It added clarity and focus and helped the reader understand the nature of the complaints and the reasons for the conclusions. [43] The report is responsive to the complaints. It is thorough, detailed and easy to understand. The Inquiry Committee determined that the Registrant carried out her Court requisitioned assessment in accordance with her professional views and did not find any basis upon which to be critical of the Respondent in her conduct of the assessment or her dealings with the Complainant. [44] In considering the reasonableness of the Disposition, I find that the Inquiry Committee understood the issues, addressed those issues and made a decision that is transparent, intelligible and justified. I find that the Disposition is rationally supported by the evidence and that it is reasonable in the circumstances. IX CONCLUSION [45] In the course of this review I have considered all of the information before me whether I specifically referenced it or not. [46] For the reasons presented above, I find that the investigation of this complaint was adequate and the disposition was reasonable. Having made these determinations, I confirm the Disposition of the Inquiry Committee. John M. Orr John M. Orr, Q.C., Panel Chair Health Professions Review Board