Health Professions Review Board

Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: 250 953-4956 Toll Free: 1-888-953-4986 (within BC) Facsimile: 250 953-3195 Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 Website: www.hprb.gov.bc.ca Email: hprbinfo@gov.bc.ca DECISION NO. 2015-HPA-166 (a) In the matter of an application under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the Act ) for review of a complaint disposition made by an Inquiry Committee BETWEEN: The Complainant COMPLAINANT AND: The College of Dental Surgeons of BC COLLEGE AND: A Certified Dental Assistant REGISTRANT BEFORE: Lorne R. Borgal, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on November 23, 2015 APPEARING: For the Complainant: Self-represented DECISION ON APPLICATION FOR REVIEW I STAGE 1 HEARING [1] This complaint has been referred to a Stage 1 hearing. At this stage the following results are possible: (a) I may confirm the Inquiry Committee disposition under s.50.6(8)(a) of the Act if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or (b) I may determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant. [2] Having reviewed the record of the Inquiry Committee s investigation (the Record ), the Complainant s Application for Review and her Statement of Points, I have

DECISION NO. 2015-HPA-166 (a) Page 2 determined that I am able to adjudicate this application for review on the merits in accordance with para. [1](a). Therefore, I have concluded this hearing at Stage 1. II BACKGROUND AND FACTS [3] The Complainant attended at the office of a dental surgeon (the Dentist ) where the Registrant was employed. Subsequently, on November 6, 2014, the Complainant filed a complaint with the College against the Dentist ( First Complaint ). The First Complaint was not made against the Registrant who is the subject of this hearing. During the course of the investigation of the First Complaint the Registrant provided a document ( Registrant s Response ) to the Inquiry Committee as part of the Dentist s response to the First Complaint in which she described her recollection of the events related to the First Complaint. [4] Apart from the First Complaint, on June 26, 2015, the Complainant filed a second complaint with the College (the Complaint ) alleging that the Registrant s Response was not a factual account of what had occurred and that the Registrant appears prejudicial in her comments in favor of her employer (Dentist) The Complainant referenced the following sentence in the Registrant s Response, She (the Complainant) didn t want x-rays because she had some recently taken so we didn t take any that day. [5] The Inquiry Committee of the College received the Complaint, determined that The differences in the recollections are not so significant as to warrant intervention and assigned the Complaint to the Registrar on the basis that it would be immediately dismissed pursuant to s.32(3) of the Act. [6] 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 colleges of British Columbia. These are reviews of dispositions and not fresh examinations of complaints. In completing a review I examine the entire Record of the matter pertaining to the complaint. My mandate in this case is to determine whether the Inquiry Committee conducted an adequate investigation and if it did, then I am to determine whether the disposition of the matter was reasonable. [7] In the event that I find that the Inquiry Committee disposition was either not adequate or not reasonable then the Act provides me with the authority to direct the Inquiry Committee to make a disposition that it could have made or (more typically) to send the matter back to the Inquiry Committee with specific directions. III DISPOSITION LETTER [8] In the disposition letter the Inquiry Committee summarized the Complaint and described their reasons for dismissing it without further investigation. The Inquiry Committee noted that the Registrant s Response was that the Complainant did not want x-rays taken while the Complainant submitted that she did not refuse to have x-rays taken. The Inquiry Committee concluded that not wanting is not equivalent to

DECISION NO. 2015-HPA-166 (a) Page 3 refusing and while there may be differing recollections of what occurred they could not conclude that the Registrant was willfully dishonest or inaccurate in her (Registrant s Submission). [9] In her application for review the Complainant alleged that the investigation was not adequate and/or not reasonable and asked that the Review Board send the matter back to the Inquiry Committee. IV COMPLAINANT S STATEMENT OF POINTS [10] In her Statement of Points ( SOP ), the Complainant made numerous claims all of which I have considered. She noted her concern regarding exposure to x-rays, her questions during the appointment with the Dentist about the receipt of x-rays taken by another dentist, the presence or not of various assistants during the appointment and her assertion that At no time did I state that I would not allow them to take another x- ray. [11] The Complainant clearly reflects in her SOP that she believes that the Registrant reported a false statement in the chart about (her) refusal of x-rays and that this led to numerous other issues which were negative to her. The SOP contains numerous other references to concerns the Complainant has which are not relevant to this decision as they refer to issues she has with the Dentist. V RELEVANT LEGISLATION, RULES AND POLICY [12] The disposition in this matter was made by the Registrar in accordance with the provisions of s.32(3) of the Act which in turn becomes a decision of the Inquiry Committee in accordance with s.32(5) of the Act. [13] 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. Section 50.6(6) of the Act stipulates that a review under this section is a review on the record. 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

DECISION NO. 2015-HPA-166 (a) Page 4 (c) sending the matter back to the inquiry committee for reconsideration with directions. VI APPLICABLE CASE LAW AND EVIDENCE [14] The Supreme Court of Canada ( SCC ) in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65 (CanLII) at para. [3] set out that it had 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. [15] The Complainant s SOP contains many allegations that are tangential to the Registrant s Response as well as numerous references to her concerns regarding the Registrant. I have considered the Complainant s SOP in its entirety; however, I rely on the SCC decision in para. 20 above and will not comment upon every issue raised. [16] Prior to dealing with the adequacy and reasonableness of the disposition it is necessary to unbundle the Complainant s submissions. The Complaint was in regard to the Registrant s Response dated November 27, 2014. This is the subject of the disposition provided by the College on August 5, 2015 for which the Complainant filed an application for review. Therefore, the focus of this decision is properly the adequacy and reasonableness of the August 5, 2015 disposition. [17] In the Complaint there is reference to a chart entry dated October 21, 2014 which was allegedly made by the Registrant and is included as Appendix 4 of the Complaint. The context of this reference in the Complaint is with respect to concerns the Complainant has with the Dentist and not to the Registrant s Response. It is my decision that the Inquiry Committee properly focused on the Registrant s Response and was not required to respond to the chart entry reference in their disposition. [18] In the SOP filed in conjunction with her application for review, the Complainant provides little information in support of her concerns regarding the disposition of the Complaint. The SOP is focused almost exclusively on chart notes that were made or not made during the course of treatment by the Dentist in contrast to the Complainant s recollection of the events which are the subject of the chart notes. [19] I note in her SOP that the Complainant referenced a chart note and attached the same October 21, 2014 record referenced in para. [23]. In the SOP this chart note is referenced in the context of the Complainant s concerns regarding other communications and chart notes and not in the context of the Registrant s Response. [20] I am not to ascribe meaning where none is attributed or implied by the parties. For greater clarity, this decision has not considered the Complainant s submissions except as they relate to the application for review of the August 5, 2015 disposition.

DECISION NO. 2015-HPA-166 (a) Page 5 VII ADEQUACY OF THE INVESTIGATION [21] The Review Board must, on review, determine the adequacy of the investigation. The investigation that was undertaken by the Inquiry Committee need not have been a perfect investigation but it must have been adequate. What is considered adequate will differ from case to case depending primarily on the seriousness of the issues raised in the complaint and the findings of the investigation. [22] 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] which reasoning I have adopted herein: [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. [23] 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. [24] In this matter I find that, upon receipt of the Complaint, the Inquiry Committee: (a) Considered the precise wording in the Complaint in comparison to the wording used in the Registrant s Response; (b) Determined that they could make a decision on the disposition without further investigation; (c) Made a decision; and (d) Provided a disposition letter to the Complainant with a copy to the Registrant attached to a separate letter to the Registrant. [25] The Record demonstrates that the Inquiry Committee considered that the normal process of investigation would not be followed in this case based on their interpretation of the facts already before them. The disposition was based on the information in the Complaint and in the Registrant s Response. [26] It is unusual for an Inquiry Committee to not follow a process of investigation that includes receiving the medical records related to a complaint. The Registrar in a memo

DECISION NO. 2015-HPA-166 (a) Page 6 to the Inquiry Committee dated June 30, 2015 wrote that the Complaint essentially involves differences in recollection of what was said and that the differences are not sufficient as to warrant further investigation. [27] The Complainant in her SOP, page 6 item 7, submits that the summary referenced in para. [32] prejudiced the Inquiry Committee and deprived the Committee of information that would have been uncovered by a more fulsome investigation. The Complainant challenged the investigation as if it was a normal practice which allowed fabrications to persist to her detriment. [28] I find no evidence that the summary referenced in para. [33] prejudiced the Inquiry Committee and the Complainant has provided no evidence in support of her allegation. [29] I have considered the entire Record and find that 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 [30] The Review Board is provided by legislation with the jurisdiction to define and apply reasonableness within the context of the reforms of the Act which created the Review Board whose purpose it is to ensure an appropriate degree of accountability on the part of the Inquiry Committee. The Review Board is not to ignore what the Inquiry Committee has done. Rather the Review Board is to determine the degree of deference to the Inquiry Committee that is appropriate in particular circumstances and, as it is not a court, the test of reasonableness will necessarily reflect the Review Board s specialized role and expertise. [31] In my view, a functional 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 or not the Inquiry Committee s disposition was reasonable. [32] The issue in the Complaint that was before the Inquiry Committee was solely the allegation by the Complainant that the Registrant s Response was untruthful in asserting that the Complainant didn t want x-rays because she had some recently taken so we didn t take any that day. The Complainant submitted in her Complaint that the Registrant s Response meant that the Complainant had refused to have x-rays taken and she submitted that At no time did I state that I would not allow them to take another x-ray.

DECISION NO. 2015-HPA-166 (a) Page 7 [33] Given the absence of investigation and the non-technical, summary nature of the disposition, I find that I must make an assessment of the alleged facts in order to form an opinion on the reasonableness of the disposition. Having reviewed the relevant facts as alleged, I find that the Registrant s Response does not have the meaning attributed to it by the Complainant. To write that someone didn t want x-rays, especially in the context of a particular day, does not translate to or mean that person has refused to have x-rays taken. There is no medical issue in this interpretation. The only issue is the interpretation of the words used in the Registrant s Response and I find that those words do not have the meaning ascribed to them by the Complainant. [34] From the basis of my own conclusion on the facts, I am able to determine that the Inquiry Committee disposition is consistent with the facts and law and meets the test of a reasonable disposition. IX CONCLUSION [35] In the course of this review I have considered all of the information before me whether I specifically referenced it herein or not. [36] 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 therefore confirm the disposition of the Inquiry Committee. Lorne R. Borgal Lorne R. Borgal, Panel Chair Health Professions Review Board January 7, 2016