Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of British Columbia DECISION NO. 2017-HPA-006(a) October 5, 2017 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 Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT BEFORE: Lorianna Bennett, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on July 18, 2017 APPEARING: For the Complainant: Self-represented For the College For the Registrant Sarah Hellmann, Counsel Laura E. Miller, Counsel I INTRODUCTION [1] The Complainant was a patient of the Registrant s and filed a complaint with regard to the Registrant s professional manner and competence. The College investigated the complaint and was unable to substantiate the Complainant s concerns about the Registrant s professionalism and competence. However, the College was critical of the Registrant s record keeping and sought the Registrant s consent to take a record-keeping course. The Complainant was dissatisfied with the College s disposition and applied to the Review Board for review of the disposition. II BACKGROUND [2] The Complainant was a patient of the Registrant for over 18 years. On May 26, 2016, the Complainant wrote a six-page letter of complaint to the College setting out his concerns with the Registrant s professional conduct and competence. The Complainant
stated that over the course of their professional relationship, the parties had some downturns and outright disagreements and goes on to explain how the relationship more recently came to an abrupt end on or around May 22, 2016. [3] In his letter of complaint, the Complainant also raised concerns with the Registrant s alleged lack of support and guidance associated with his three Worker s Compensation claims (two in British Columbia and one in Ontario), and all of which had been either denied or rejected. [4] Throughout the complaint letter the Complainant also makes allegations about the Registrant s manners and competence during his years of care. He states: My concerns going forward are most importantly that my 3 Workers Comp claims be dealt with effectively if not by him, my someone more on top of things These claims are credible and important to me. I will be seeking some legal advice shortly in regards to this dismal situation that the Doctor has created for me. I realize that I may be opening myself up for more invalidation and scrutiny but I do need and have needed someone to stick up for me I was a tradesman of some high competency and I served my employers well, taking injuries which were part of highly risky work environment which I worked [sic]. I know what hard labour is, and my doctor can t even exert himself enough to properly fill out or recommend forms for me to fill out [5] The College s Inquiry Committee investigated the complaint and concluded their investigation without criticism of the Registrant s care and competence. The Inquiry Committee did, however, find fault with the Registrant s record keeping and directed that the Registrant complete a remedial record keeping course. [6] The Complainant, presumably dissatisfied with the disposition, applied to this Review Board for a review. III REVIEW BOARD S ROLE ON APPLICATIONS FOR REVIEW [7] The Review Board s powers on an application for review are limited, and are set out at s.50.6(8) of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ). Specifically, I may do one of the following on completion of a review of an Inquiry Committee disposition: (a) confirm the Inquiry Committee s disposition; (b) direct the Inquiry Committee to make a disposition that could have been made by the inquiry Committee in the matter; or (c) send the matter back to the Inquiry Committee to reconsider the matter with specific directions. [8] Before I can either direct the Inquiry Committee to make a different disposition or send the matter back to the Inquiry Committee to reconsider the matter, I must first make a finding that the Inquiry Committee s investigation was inadequate, or that while the investigation may have been adequate its disposition was unreasonable. These limits on my jurisdiction are set out in s.50.6(5) of the Act which reads:
50.6(5) On 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; and (b) the reasonableness of the disposition. [9] Section 50.6(6) further requires the review to be on the record meaning that my review is limited to the written record of the College s investigation (the Record ) and disposition of the complaint. IV NEW EVIDENCE [10] Before I turn to the issues of adequacy of the investigation and reasonableness of the disposition, I will first consider the College s application to introduce new evidence, which application is supported by the Registrant. Specifically, the College seeks to introduce five additional documents which consist of four letters between the College and the Registrant, and an email thread between the College and the Registrant. [11] Section 50.6(7) of the Act allows the Review Board to take into consideration evidence that is not part of the Record as reasonably required by the Review Board for a full and fair disclosure of all matters related to the issues under review. [12] The test in determining the admissibility of new evidence at a hearing, as established by the Review Board, is as follows: (a) How relevant is the material to the matters at issue on the review? (b) Would it be fair to all parties to admit it? (c) Does the admission of the new information render the disclosure more full or complete so as to enable the Review Board to render a full, fair and proper decision? (Review Board Decision No. 2009-HPA-0001(a)-0004(a)) [13] With that test in mind, I note that the correspondence between the College and the Registrant relates specifically to the remedial directive that the College imposed on the Registrant, and the steps that the College took to seek the Registrant s consent to the directive. This information is directly relevant to the disposition of this matter and is likely submitted in response to the Stage 2 Direction letter which I issued on May 12, 2017. In that letter I asked the following questions:.. 3. In particular, I would ask that the College and Registrant address the following in their submissions: (a) What response, if any, did the Registrant provide to the College s request that he enroll in the College s medical record-keeping course?
(b) What follow up, if any, did the College undertake with regard to the request it made of the Registrant? (c) Please explain how the College satisfied itself that the Registrant has addressed the criticisms noted by the College. [14] In light of the above, I find the new information to be directly relevant to the matters at issue. I find as well that there is no prejudice to any of the parties by allowing the new information into evidence. To the contrary, the evidence is informative in that it provides further insight into the steps that the College took with respect to following up with the directives assigned to the Registrant. I therefore find the additional information to be of direct relevance and assistance and will allow it. V ISSUES [15] The issues I must now decide are: (a) Did the College adequately investigate the complaint against the Registrant? (b) Was the College s decision to take no further action with respect to the allegations of the Registrant s professional manners reasonable? Was the College s decision to seek the Registrant s consent to enroll in the College s medical record-keeping course a reasonable disposition? VI ADEQUACY OF THE INVESTIGATION [16] What is considered to be a reasonable or adequate investigation was addressed in Review Board Decision No. 2009-HPA-0001(a)-0004(a) at paragraphs [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. [17] With this in mind, the test of adequacy will be met if the Inquiry Committee can satisfy me that it took reasonable steps to obtain key information in relation to the complaint. [18] In terms of the complaint itself, it is difficult if not impossible to identify from the Complainant s Statement of Points what he alleges to be grounds for review. Although his submissions are lengthy, the content consists mostly of disparaging comments and profanities which are directed primarily at the Registrant. Where the Complainant does
elaborate on his concerns, he does so in such a highly derogatory manner that, at one point, even he acknowledges that his language slipped on occasion. [19] Notwithstanding the nature and demeanor of his submissions, I conclude that the Complainant s allegations are primarily in relation to the alleged unprofessional interactions between himself and the Registrant and in relation to the alleged competency concerns. The Complainant says very little, if anything, regarding any concerns he may have about the adequacy of the College s investigation. [20] Despite the Complainant s lack of submissions on the issue of adequacy, I have considered the issue of adequacy as it relates to the steps taken by the Inquiry Committee in the course of its investigation. In that regard, the College collected five letters from the Complainant, two letters in response to the complaint from the Registrant, and medical records from the Registrant relating to his care of the Complainant. The medical records date back to January 1998 and include clinical records and correspondence between the Registrant and the other medical professionals that have also been involved with the Complainant s physical and psychiatric care over the years. Both the Complainant and the Registrant were provided opportunities to review all of the material and to respond. [21] This investigation appeared to be relatively straight forward given the nature of the concerns and the information that was required in order to conduct an adequate investigation. For instance, the Complainant s allegations did not involve other physicians, clinics or hospitals to the extent that clinical records or responses from third parties were required. Consequently, I am satisfied that the steps taken by the College and the information collected was sufficient to enable the College to reasonably assess the allegations raised by the Complainant, thus resulting in an adequate investigation. VII REASONABLENESS OF THE DISPOSITION [22] In his statement of points, the Complainant states that he would like to see some of his other referenced fabricated and false records which had been included from other registrants disregarded in this matter and trashed. He makes various other remarks as well that are, as I noted, laden with profanities and suggest ill-conceived harm against the Registrant, the College, and any other registrants who provided medical care to him in the past: I not only hold most of these pathetic GP s and specialists to task, but also the College for creating this scenario in the first place I would like to see this old crop ploughed under Get rid of these fossils as soon as possible, post haste. They have defamed their profession and held the public hostage to poor standards of service. They don t deserve their privilege, salary, respect or elitism. [23] Such remarks do not assist the merits of this review, and although they in no way particularize the Complainant s specific concern with the disposition, they do confirm what I find to be overall resentment by the Complainant with respect to the College s disposition of this matter.
[24] In considering the disposition, I note that the Review Board s powers on an application for review are limited by s.50.6(8) of the Act. In other words, it is not for me to decide whether the Inquiry Committee s disposition was right or wrong. It is also not within my authority to discipline or direct any alternate disciplinary action against the Registrant. My only consideration is whether the disposition was defensible and reasonable, and whether it falls within the range of acceptable and rational outcomes based on the evidence before the Inquiry Committee. [25] I have reviewed the Record and considered the circumstances under which the complaint arose. I note that notwithstanding that the Complainant and Registrant had a doctor/patient relationship which spanned over 18 years, the Complainant filed a formal complaint to the College only after WorkSafeBC s rejection of his application for injury benefits. The Complainant was frustrated by WorkSafeBC s rejection of his claim, and appeared to assign blame in that regard to the Registrant by alleging that the Registrant failed to properly advise and support the Complainant in the application process. [26] Thereafter, the Complainant used the College complaint process to expose all of the alleged incompetencies which he felt he endured over the history of his doctor/patient relationship with the Registrant. [27] With respect to the allegations regarding the Registrant s professional manners, the Inquiry Committee considered all of the allegations but did not find, from the evidence, sufficient basis to be critical of the Registrant s care and conduct. As noted in the disposition letter: Allegations of poor bedside manner are inherently difficult for the College to investigate and adjudicate. Your conversations with [Registrant] occurred in the privacy of a clinical setting. There is no objective evidence available, such as an audio or video recording that would support your allegations of an unprofessional bedside manner. Given this fact, we are unable to address this aspect of your complaint further, which does not give rise to regulatory criticism. [28] In reaching the disposition, the Inquiry Committee did not conclude that it preferred the Registrant s evidence over the Complainant s evidence, but rather that they could not make a determination on the issue because the evidence did not allow a definitive determination as to facts to be made. I conclude this portion of the disposition to be reasonable in the circumstances. [29] In the process of its investigation, and despite the fact that the Inquiry Committee found no evidence to warrant the criticisms of the Registrant s manners, the Inquiry Committee found fault with respect to the Registrant s record keeping. In that regard, the Inquiry Committee directed the Registrant to consent to attend a record keeping course. In its Statement of Points, the College submits that this disposition is both critical and remedial while being appropriate in the circumstances given the nature of the allegations. The College submits as well that it found a basis for criticism of the Registrant s record keeping on the evidence which confirmed that the Registrant s practice in this regard departed from the expected standard.
[30] It was not clear from the Record itself and prior to reviewing the new evidence, whether or not the Registrant in fact consented to the Inquiry Committee s direction that he attend a record keeping course, nor was it clear from the Record what, if any, steps the Inquiry Committee took in ensuring that the Registrant followed up with the record keeping direction. It is for that specific reason that I directed this matter to a Stage 2 hearing and asked for the College and/or Registrant to provide further explanation as to how the College satisfied itself that the Registrant has addressed the criticisms noted by the College. [31] In response, the College provided the new correspondence between itself and the Registrant. The correspondence confirms that on June 14, 2017, the Registrant did, in fact, consent to the recommended remedial action although I note that he has not yet taken the remedial course, and is not slated to do so until sometime in 2018. [32] It is noteworthy that in his Statement of Points the Registrant submits that any attempt by this Review Board to deal with questions of compliance exceeds the Review Board s jurisdiction to perform a review on the record pursuant so s. 50.6(6) of the Act. More specifically, the Registrant suggests that it is not necessary for the College to explain the status of the Registrant s post-disposition conduct to either the Complainant or the Review Board, and that this is a matter reserved for the College under sections 36(1.1) and (2) of the Act. [33] The Registrant further submits that it is irrelevant for the Review Board to consider whether the Registrant complied with the consent as directed by the Inquiry Committee as failure to comply would not make the disposition any less reasonable nor would it impact the adequacy of the Inquiry Committee s investigation. A similar argument was raised by the College of Dental Surgeons in Review Board Decision No. 2015-HPA-027(a). In that review, the Complainant was not satisfied that a registrant had completed certain remedial courses as directed by the Inquiry Committee following an investigation. The College, in response, submitted that whether or not the required courses had been completed did not affect the reasonableness or adequacy of their investigation. In that case, I concluded that failure to follow through with a remedial directive could have an impact on the reasonableness of a decision: the College's response is that proof of completion of the courses does not affect the reasonableness or adequacy of the investigation nor would it affect the outcome of the investigation. With regard to the latter comment, I disagree. Where an Inquiry Committee finds fault with a Registrant's practice protocol, and where the Inquiry Committee consequently directs the Registrant to take certain remedial steps to deal with any issues of inadequacy, whether or not the Registrant follows through with completion is, in my view, directly relevant to the reasonableness of the disposition. To hold otherwise would leave it open to Registrants with malpractice claims to disregard any appropriate criticisms by the Inquiry Committee. Such inaction would be contrary to the public interest and consequently could impact the reasonableness of a disposition. Further, if I were of the view that proof of completion had not been established, it would be open to me to send the matter back to the Inquiry Committee with directions relevant to the issue. In this case, however, that is unnecessary as the Inquiry Committee has confirmed that the Registrant did complete the required courses as was evidenced by her continuing education records.
[34] A similar argument is raised by the Registrant in this review, and in response I begin by noting that s.50.53(1)(c) of the Act states that the Review Board has the mandate, 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. On such a review, the Review Board s remedial mandate includes confirming the disposition of the inquiry committee, sending the matter back to the inquiry committee for reconsideration with directions, or directing the inquiry committee to make any disposition that could have been made by the inquiry committee in the matter : s.50.6(8) of the Act. [35] On such a review, the review board may hear evidence that is not part of the record as reasonably required by the review board for a full and fair disclosure of all matters related to the issues under review : s.50.6(7) of the Act. [36] In this case, the disposition under s.32(3)(c) of the Act stated we are seeking his consent to enroll in the College s medical record-keeping course, something s.36(1)(d) of the Act specifically allows the Registrar and the Inquiry Committee to request: 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. [emphasis added] [37] In essence, this is the disposition the Complainant challenges in his February 2, 2017, application for review. Strictly speaking then, it is the reasonableness of the Registrar s decision to seek the Registrant s consent under s.36(1)(d) that is at issue on this application for review, whether or not consent was later given. [38] However, that is not the end of the matter. As noted, the Review Board has the remedial authority to direct the Inquiry Committee to make a disposition that could have been made by the Inquiry Committee in the matter: s.50.6(8)(b) of the Act. It also has the power to send the matter back to the Inquiry Committee for reconsideration with directions: s.50.6(8)(c) of the Act. [39] In other words, the Review Board must be able to fashion meaningful remedial directions where it has found a disposition to be unreasonable. If the Review Board had to close its eyes to all post-disposition information in fashioning a remedy, its power in s.50.6(8)(b) to make a disposition that could have been made by the Inquiry Committee would be largely emptied of effect in the real world, and the Review Board s remedial purposes would be frustrated. [40] In many cases, such post-disposition information might also be highly relevant to the fashioning of meaningful and practical directions under s.50.6(8)(c) of the Act. For
example, if the Registrant has refused to consent to a request under s. 36(1), 1 that refusal would bear on whether it would be productive for the Review Board, by way of remedy, to require the College to ask the Registrant to consent to another type of request under s.36(1), or whether it should issue an order requiring the Inquiry Committee to act under ss.33(6)(b) or (d) of the Act. [41] The other reason it is legitimate for the Review Board to ask the College whether the Registrant has given his consent, is that under s.36(1.1) of the Act a complainant has a separate right to notice and to seek review from the substance of a consent decision itself. Section 36(1.1) states: 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. [emphasis added] [42] The underlined language makes clear that the review of an actual consent is also a disposition under s. 33(6) that is subject to review under s.50.53(1)(c). This kind of consent disposition differs from the consent dispositions under s.37.1 that are subject to review (i.e., consent orders arrived at after a citation has been filed). [43] In practice, one would expect that, where a registrant has consented, a college would give prompt notice of this to the complainant under s.36(1.1) of the Act - especially where the complainant has already filed an application for review - so that the complainant could, if he or she wished, file an application for review of the consent itself. The Review Board should be given this information so that, as a matter of proper case management, it can determine whether it should defer the first application for review so that two applications arising from the same subject matter could be decided together. On such a review, the Review Board could then consider whether the decision to seek consent was reasonable and whether the consent disposition itself reasonably satisfied the public interest - which may in some cases be two separate issues, especially if there were negotiated terms that strayed or departed from the request. [44] There is no evidence before me in this case about whether the College gave the Complainant the required notice under s.36(1.1) of the Act. However, in the circumstances here, I am prepared to render this decision on the basis the Complainant clearly objected both to the decision to seek the consent and to the consent arrangement itself. [45] For the reasons I have given, I find that that both the request to seek consent and the consent arrangement were reasonable in all the circumstances. I am satisfied that the College has reasonably concluded that the Registrant will be true to his word, that he will take the course he has undertaken to take in a timely fashion, and that if he fails to honour his commitment, the College will view that failure with the utmost 1 See for example Zucchiatti v. College of Dental Surgeons, 2013 BCSC 1736; Ridsdale v. Anderson, 2016 BCSC 942; Maroofi v. College of Physicians, 2017 BCSC 1558.
seriousness. I will just note that while this degree of confidence may not be justified in every case, 2 I am satisfied that it was reasonable in this case. [46] In summary, and while I appreciate that the Complainant is dissatisfied with the Inquiry Committee s disposition of the complaint, that disposition is a reasonable and defensible outcome given the evidence that was before the Inquiry Committee. VIII ORDER [47] For the reasons given above, and given my finding that the investigation was adequate and the disposition reasonable, I confirm the disposition regarding this Registrant. [48] In making this decision, I have considered all of the information and submissions before me, whether or not they are referred to in these reasons. Lorianna Bennett Lorianna Bennett, Panel Chair Health Professions Review Board 2 See for example, Review Board Decision No. 2015-HPA-138(a) 140(a) (Group File No. 2015-HPA- G21) at paras. [209-223].