The relationship between “professional misconduct”, civil wrongs like negligence, and “satisfactory conduct”: Complainant v. College of Dental Surgeons of BC, 2009-HPA-0090(b)

When a complaint alleges a mistake by a professional that essentially amounts to an allegation of negligence – a matter that a civil court would normally adjudicate as part of a claim for monetary compensation – can a regulator decline to take action with respect to such negligence? In the face of an allegation of a civil wrong like negligence, when can a college under the Health Professions Act take no further action?

The recently released decision of the Health Professions Review Board (“HPRB”) in 2009-HPA-0090(b) will have significant implications for how regulatory bodies subject to British Columbia’s Health Professions Act (the “HPA”) conduct their investigations and dispose of complaints. The direction from the HPRB in this case is essentially that where an inquiry committee does not view a complaint as trivial, frivolous, vexatious or made in bad faith, it cannot elect to take no further action under s. 33(6)(a) of the Act on the basis the registrant has not generally failed to meet professional standards (as submitted by the college), or on the basis the substandard care was an isolated incident not disclosing incompetence (as submitted by the registrant). To take no further action in such a circumstance, the inquiry committee must conclude the specific conduct was “satisfactory”. But the decision begs the question (and does not answer) whether or when negligence or some other civil wrong may be “satisfactory”.

The decision also requires that an inquiry committee seeking to audit a registrant’s practice not permit the registrant to select the files the committee will examine.

Background

The HPRB issued its decision after reviewing a disposition by the inquiry committee of the College of Dental Surgeons of BC (the “College”) concluding that a satisfactory resolution of the complaint had been reached and deciding to take no further action regarding the complaint.

The complaint at issue was with respect to a dental bridge and crown that the Registrant had installed for the Complainant. The Complainant experienced sensitivity around the crown the Registrant had installed (para. 2).  After these issues were raised with the Registrant, he referred the Complainant to an endodontic specialist who recommended and performed a root canal on her (Ibid.). The root canal did not relieve the sensitivity suffered by the Complainant so she consulted another registrant of the College who recommended both the crown and the bridge did not fit and should be removed (para. 3).  The Complainant complained to the College not only with respect to the crown and the bridge, but also regarding the unnecessary root canal recommended to her (para. 4).

The HPRB’s review was with respect to both the adequacy of the College’s investigation and the reasonableness of its disposition (para. 5).

Adequacy of the investigation

In investigating the complaint, the College received 40 pages of documents from the Registrant relating to his treatment of the Complainant, including a handwritten log of his treatment and reports from specialists to whom he referred her (para. 32). The College also obtained reports and records from the registrant who recommended the Complainant remove the crown and bridge installed by the Registrant, as well as another registrant who was a specialist in periodontics and had reviewed the Registrant’s work (paras. 18 & 34). Furthermore, the College’s Deputy Registrar attended at the Registrant’s office to review an original radiograph of the tooth on which the crown had been installed, and met with the Registrant to review the College’s concerns and the results of its investigation (paras. 35 & 36). The HPRB had no concerns with any of these aspects of the investigation (para. 37).

The College had gone further, however, and determined that it would be necessary to review more crown and bridge treatments provided by the Registrant for other patients to determine whether the complaint was the result of “an isolated incident” or if it was “a pattern of practice” (Ibid.). The HPRB found that this portion of the College’s investigation was fundamentally flawed as the College had allowed the Registrant to select records from among hundreds for which he had provided crown and bridge treatments, allowing the Registrant to potentially select those which he was satisfied did not show any inappropriate procedures (para. 38). The HPRB noted that the College should have controlled the selection of representative patient records rather than the Registrant for this aspect of the investigation to have been adequate (Ibid.).

Reasonableness of the disposition

The far more interesting and contentious aspect of this decision, however, is the HPRB’s findings on the reasonableness of the inquiry committee’s disposition.

The College took the position that it has no obligation to adjudicate “isolated cases of alleged negligence” and that “unsatisfactory performance of dental services by any registrant is a matter that should be left to the courts” (para. 40). It was the College’s view that in such isolated incidents the inquiry committee must decide to take no further action pursuant to s. 33(6)(a) of the HPA unless it determines after investigation that “the conduct or competence of a registrant constitutes a continuing danger to the public” (Ibid.). Furthermore the College submitted that “competence” in s. 33(6)(a) of the HPA refers to general competence of a registrant and does not extend to any single isolated case of improperly performed professional services such as the matter raised by the Complainant (para. 42).

The HPRB, however, did not accept the College’s submission that it had no jurisdiction to deal with an isolated incident of improperly performed professional services unless a general pattern was indicated as a result of an investigation (para. 44). On the contrary, the HPRB held that College’s under the HPA must investigate any matter raised by the complainant and there was no reason to restrict the scope of this jurisdiction to matters in which a registrant’s general conduct or competence is at issue (para. 45). The HPRB found that the inquiry committee had not determined the complaint to be trivial, frivolous, vexatious or made in bad faith under s. 33(6)(a), and that the College could therefore only decide to take no further action regarding the complaint if it concluded that the Registrant’s conduct or actions had been satisfactory (parsa. 47 & 48).

The HPRB specifically rejected the proposition that the College could determine to take no further action simply because the Registrant’s overall conduct or competence was generally satisfactory, and held that the conduct or competence at issue in the matter raised by the complaint must be specifically found satisfactory (paras. 48 & 49). The HPRB noted that the inquiry committee in this matter did not come to such a conclusion on review of all the evidence compiled during its investigation, but instead had found that a “satisfactory resolution had been reached” as no general issues of conduct or competence were found (paras. 50-52).

As a consequence of this analysis, the HPRB found the College’s disposition unreasonable and for this reason, as well as the defects found with the adequacy of the investigation, the HPRB ordered that the matter be sent back to the inquiry committee for reconsideration with directions. In closing, the HPRB noted that the inquiry committee could have recommended reimbursement to the Registrant for all or part of the cost she incurred for corrective dental surgery as a result of the bridge and crown the Registrant had provided (para. 54).

Discussion

On its face, the HPRB’s decision defines a “matter” which must be investigated and disposed of by an inquiry committee expansively enough to capture not only isolated incidents of negligence or incompetent provision of professional services, but also issues such as overbilling that many professional regulatory bodies treat as outside their jurisdiction.

In support of the HPRB’s ruling, the language of s. 33(6)(a) of the HPA does appear, at least on its surface, to limit the situations where an inquiry committee may take no further action to matters that are trivial, frivolous, vexatious or made in bad faith, or where “the conduct or competence to which the matter relates is satisfactory”. On such a reading of the HPA, if a complaint of overbilling, for example, was delivered to the inquiry committee under s. 33(1), an inquiry committee would appear to have little room to take no further action on the matter without first determining the merits of the complaint itself.

There remains, however, the question of how s. 33(6)(a), and the term “satisfactory”, ought to be interpreted in the context of the HPA as a whole.

For example, 32(3)(b) allows a registrar, if authorized by the board, to dismiss a complaint that “does not contain allegations that, if admitted or proven, would constitute a matter subject to investigation by the inquiry committee under section 33(4)”. Section 33(4) sets out various grounds on which an inquiry committee can investigate a registrant on its own motion, including fitness to practice issues, conviction for an indictable offence, professional misconduct or unprofessional conduct, and competence to practice the designated health profession. This section does not, however, expressly support investigation of a registrant for “unsatisfactory conduct”, or for any violation of the law generally, or for any conduct that giving rise to civil remedies such as negligence or overbilling.

If s. 33(4) reflects the jurisdiction of a college under the HPA, it remains unclear whether an “isolated incident of improperly performed professional services”, as identified by the College in this case, would fall within the concepts of “professional misconduct” or “competence to practise the designated health profession” as set out in section 33(4)(c) and (d).

In favour of the arguments advanced by the College in this case, a finding of incompetence with respect to professional disciplinary proceedings has generally been held to require “a pattern of work that does not live up to a certain standard” rather than isolated incidents (see Reddy v. APEGBC, 2000 BCSC 88, paras. 9-11, and Mason v. Registered Nurses of British Columbia (1979), 13 B.C.L.R. 218 (B.C.S.C.)). Likewise, there is case law in support of the view that “professional misconduct” will not include isolated incidents of negligence unless they involve blatant disregard for a patient’s well-being (see Reddoch v. Yukon Medical Council, 2001 YKCA 13, para. 60) or the negligence is of such a degree that it is “to be regarded as deplorable by a [registrant’s] fellows in the profession” (see Laba v. Manitoba Dental Association, [1988] M.J. No. 673, para. 18).

Accordingly, the reference to “satisfactory” conduct or competence in section 33(6)(a) may refer to conduct that is satisfactory from a professional regulatory perspective. For example, a professional who calls non-vegetarians “meatheads” on her private time might not be engaging in “satisfactory” conduct, in the most general sense of that word, but neither might such conduct be labelled as “unprofessional conduct”. Similarly, an instance of professional negligence might or might not amount to professional misconduct.

This decision does not require that a college treat professional negligence as equivalent to professional misconduct. But it also does not favour a college being able to categorically dismiss complaints of negligence. At a minimum, an inquiry committee can decline to take action respecting negligence if it affirmatively concludes “satisfactory” conduct by inter alia excluding professional misconduct, unprofessional conduct, and incompetence.

From a practical standpoint, the prospect of colleges assessing “negligence” claims, or other civil wrongs, may result in operational issues. For example, patients with potential negligence claims may be strongly motivated to lodge complaints, in order to use colleges for their investigative services, the results of which they can access through the HPRB document disclosure process. An inability of complainants to “use” investigative documents disclosed to them through an HPRB review does not prevent any complainant from using their knowledge of such documents to guide civil discovery requests, or focus their civil claims. Similarly, a complainant may seek to use, in court, any disciplinary findings that certain acts of negligence amount to professional misconduct (although this possibility has existed since before this HPRB decision).

This HPRB decision will, in any event, likely force colleges to develop a more nuanced understanding of the relationship between different forms of negligent acts or other civil wrongs, and professional misconduct.

Complainant v. College of Dental Surgeons of BC, 2009-HPA-0090(b) [Sept 27, 2012]

Lisa Fong, Benjamin Ralston and Michael Ng