Professional regulatory bodies do not owe a private law duty of care to patients, and cannot be liable for determining a treatment meets an acceptable standard of practice

Professional regulatory bodies protect the public interest by ensuring practising members are capable and qualified, but such a statutory mandate does not result in regulatory bodies owing a private law duty of care to individual members of the public. This principle was affirmed in the recent case of Nette v. Stiles, 2010 ABQB 14.

In this case, the plaintiffs alleged they suffered severe injury from specific form of spinal manipulation. In addition to claiming negligence against the individual chiropractor, the plaintiffs sought to have their claim certified as a class action suit against the chiropractor and the Alberta College and Association of Chiropractors (ACAC). The plaintiffs alleged the chiropractor had provided treatments without scientific foundation, and alleged ACAC failed to properly supervise and impose standards on the chiropractor. [11]

To sustain a claim against ACAC, the plaintiffs had to show sufficient proximity between themselves and ACAC to justify a duty of care. [13] The plaintiffs sought to rely on Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, in which the Supreme Court of Canada found a proximate relationship between a plaintiff and a statutory regulator (namely, the Barreau du Québec) based on the regulator’s failure to act on specific complaints made by the plaintiff respecting one of the Barreau’s registrants. In this case, however, the Court of Queen’s Bench found that Finney did not create a new general category of proximate relationships applying to the public generally. [52] Moreover, even if a proximate relationship could be found, this fact would be outweighed by residual policy considerations. In the Court’s view, recognizing a private law duty of care “would have a chilling effect on [ACAC’s] decision-making role and expose it to indeterminate liability as it would become the virtual insurer of chiropractic within the Province.” [54] For these reasons, the plaintiff’s claim against ACAC failed.

In addition, the Court found the plaintiffs could not proceed against the individual chiropractor on the basis the treatment was not scientifically sound, given two important principles concerning the legitimate scope of the court’s authority and expertise. First, quoting from ter Neuzen v. Korn, [1995] 3 S.C.R. 674, the Court confirmed that individual physicians cannot be held liable for treatments that meet accepted standards of practice:

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent. [66]

Second, the Court recognized the legislature conferred the power to determine acceptable standards of practice within the field of chiropractic medicine on ACAC, and to challenge this authority would essentially amount to an attack on the Province’s legislative competence. [68]

Ultimately, the Court found the plaintiffs had failed at every step of the test necessary in order to have their proceeding certified as a class action. For this reason, it dismissed the application. [102]

NB: In British Columbia, the BC Supreme Court found against a duty of care being owed by a college in Allen v. College of Dental Surgeons of British Columbia, 2005 BCSC 842 (reversed for other reasons 2007 BCCA 75 but affirmed on this point [50]), applying Rogers v. Faught (2002), 212 D.L.R. (4th) 366 (Ont.C.A.).

Nette v. Stiles, 2010 ABQB 14