HPRB Summaries: The test on review, plus extending time, new evidence and costs

When the Health Professions Review Board reviews a disposition of a complaint by an inquiry committee under the Health Profession Act, it may review the adequacy of the investigation, and the reasonableness of the disposition: HPA s. 50.6(5). Decisions 1 to 4 (from 2009) were the first rulings to address the Board’s duties under s. 50.6(5): The Complainant and The College of Registered Nurses of B.C. and A Registered Nurse, Registrant No. 1, A Registered Nurse, Registrant No. 2, A Registered Nurse, Registrant No. 3, A Registered Nurse, Registrant No. 4 (March 17, 2010), HPRB BC  Decision No. 2009-HPA-0001-0004.

Overview: The four dispositions under review concerned complaints by one complainant against four registered nurses who were instructors in a three-year certificate program offered by Langara College, the “Integrative Energy Healing Practitioner Certificate Program”. The complainant made several allegations against each registrant, e.g., a registrant did not supervise clinical exercises properly by allowing students to take responsibility for treatment; a registrant was not aware of results of treatment, putting patients at risk; registrants did not act properly as nurses when aware of the risks the complainant posed to others; the complainant’s confidentiality was breached; and a registrant acted outside her authority as a Langara College instructor.

Like the inquiry committee, the Board reviewed all four dispositions at the same time, including three preliminary requests: firstly, the complainant’s request for an extension of time to apply for a review of one disposition; secondly, the complainant’s request to introduce new evidence; and thirdly, the college’s request to introduce new evidence. The Board ultimately concluded each investigation was adequate, and each disposition was reasonable. As the first reviews dealing engaging s. 50.6(5), the Board explained its interpretation in detail.

Extending time to apply for a review: The complainant sought an extension of time to seek a review of the disposition on Registrant No. 3. HPA s. 50.61(4) permits an extension of time if special circumstances exist. Following a recent appellate decision, Clock Holdings Ltd. v. Braich Estate, [2009] B.C.J. No. 2464 (C.A.), the Board looked at certain factors for extending time: “(1) was there a bona fide intention to appeal? (2) when were the respondents informed of the intention? (3) would the respondents be unduly prejudiced by an extension? (4) is there merit in the appeal? (5) is it in the interest of justice that an extension be granted?” The onus of proof is on the party asserting special circumstances. The Board expressed that these factors could not be applied mechanistically. On the facts, the Board declined to extend time. The Board found no evidence the complainant had a bona fide intention to request a review before the deadline. Further, the particular disposition at issue, essentially made on jurisdictional grounds, was bound to be confirmed, and thus the substantive issue lacked merit.

Introduction of new evidence: The Board may hear evidence not part of the record as reasonably required for a full and fair disclosure of all matters related to the issues under review: HPA s. 50.6(7). Pursuant to that power, the complainant sought to introduce affidavit evidence from Registrants 2 and 3 and a Dean of Langara College, policy documents from Langara College and the Integrative Healing Energy program, the Code of Ethics for Registered Nurses, and disciplinary decisions from the Ontario College of Registered Nurses. The College also sought to introduce the College Practice Standard on confidentiality, and the preliminary decision of the Human Rights Tribunal on the complainant’s human rights complaint on the same matter.

The Board determined s. 50.6(7) allows it to admit new evidence more broadly than the traditional legal “fresh evidence” rule. If new evidence is relevant, the Board will then ask how relevant the new evidence is to the matters under review, whether it would be fair to all parties to admit that evidence, and whether the admission renders a more complete disclosure so as to enable the Board to make a fair decision. The Board admitted some but not all of the new evidence.

Adequacy of Investigation: Complainants are entitled to adequate investigations but not perfect investigations. In determining whether an investigation was adequate, a Board should consider the nature of the complaint, seriousness of harm alleged, complexity, availability of evidence and resources available to the College. These will vary from complaint to complaint.

Disposition review: The Board reviewed Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12, noting that “reasonableness” requires deference to specialized decision-makers, and applied Dunsmuir v. New Brunswick 2008 SCC 9: “The Review Board’s focus is not to step into the shoes of the inquiry committee, but to determine whether the Inquiry Committee’s disposition falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained.”

The complainant could provide no evidence necessary to the theories underlying the complaints, namely, that a nurse-patient relationship had developed and was violated; that a registrant believed in fact the complainant was a threat to others; and that no consent was given to speak to the complainant’s therapist. The Board found the dispositions were reasonable, and the invest­ig­at­ions adequate for all four complaints.

Costs: While the Board was concerned the applications for review reflected assumptions with no basis in reality, the Board decided it would award costs only in exceptional circumstances. Given these were the first reviews by the Board, and no improper purpose or bad faith by the complainant, the Board did not award costs.