Inquiry: Courts will not judicially review letters of criticism

Under B.C.’s Health Professions Act, some inquiry committees will issue letters of criticism to resolve complaints (under HPA s. 33(6)(b)) — letters that do not constitute formal disciplinary measures, like reprimands, but nonetheless warn registrants that their conduct is substandard, based on a provisional assessment of their conduct. While complainants may take issue with such outcomes by applying for reviews to the Health Professions Review Board, registrants who receive such criticisms have no recourse, as such outcomes do not impact their rights. Such was the decision of the B.C. Supreme Court in Maroofi v. College of Physicians and Surgeons of British Columbia, 2017 BCSC 1558.

The case involved reports to the college’s registration staff about the performance and conduct of an educational clinical trainee. Shortly after receiving these reports, the college also discovered that he had not maintained his liability insurance coverage, and it immediately cancelled his registration. The registration committee then referred the matters raised by the reports, and his failure to maintain insurance, to the inquiry committee. After investigating the matters, and given that the registration committee was only allowing the respondent to register as an educational clinical trainee for another 70 days (as part of a supervised clinical traineeship in a non-hospital setting), the inquiry committee decided it was “critical” of his conduct, and concerned about his “unprofessional conduct,” his “substandard clinical skills” and his contravening the bylaws regarding liability insurance, but otherwise taking no further action.

The respondent sought judicial review of the inquiry committee’s disposition by way of a letter of criticism (under HPA s. 33(6)(b)). The court decided, however, that a letter of criticism is not amenable to judicial review, applying the court’s previous decision in Ridsdale v. Anderson, 2016 BCSC 942 (which we blogged about here). [53-54] It held that although the inquiry committee had directed staff to convey its criticisms to the respondent, the “conveyance of criticisms is not a ‘decision’ about misconduct.” [67] Accordingly, the disposition had “no impact” on the respondent’s registration. [68] The inquiry committee sending a ‘caution’ or a ‘criticism’ “did not decide or prescribe his legal rights” [70].

Further, the court decided that since the judicial review, no matter what its result, would not alter the respondent’s right to practice medicine, the issue was a “moot” issue. The court followed its previous approach in Zucchiatti v. The College of Dental Surgeons of British Columbia, 2013 BCSC 1736. [75-79]
Finally, the court decided that even if it were wrong, and the disposition was both amenable to judicial review and not moot, the inquiry committee reasonably decided that the respondent’s conduct was not “satisfactory” (under HPA s. 33(6)(a)). [88-91]

Maroofi v. College of Physicians and Surgeons of British Columbia, 2017 BCSC 1558

Lisa C. Fong and Michael Ng