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on the Health Professions Act, Criminal Records Review, Discipline Hearings and Case Updates

one: Is your College ready for mandatory publication?

On November 1, 2008, new sections of the British Columbia Health Professions Act came into force, including section 39.3 which requires professional regulatory colleges under the Act to notify the public of certain actions taken by their Inquiry Committees and Discipline Committees.

To comply with these new requirements, Inquiry and Discipline Committees must revise their deliberation processes to provide procedural fairness to respondents and complainants to make submissions on publication, develop approaches for ascertaining when publication should or should not occur, and develop a process for drafting adequate reasons for publication.

On an administrative level, Colleges must develop publication policies to address what, when, where, and how they publish. Considerations on publication should include the extent of public summaries, a sun-setting or archiving practice, and the relationship of publication to the register of each College.

two: Is your Inquiry Committee ready for the 120-day timeline?

On October 17, 2008, the Health Professions General Regulation was passed under the Health Professions Act. Section 7 of the regulation sets a 120-day period, from the date a registrar receives a complaint or the date on which an Inquiry Committee starts an investigation on its own motion, within which the complaint or investigation is to be disposed.

Non-compliance with this and subsequent timelines set out in the Act and the Regulations may result in the suspension of an Inquiry Committee’s jurisdiction over a matter in favour of the forthcoming Health Review Board.

Given that, sometimes, the complex or voluminous nature of a complaint or involved negotiations may lengthen the time needed for alternate resolution of a matter prior to citation, Colleges may wish to streamline their inquiry and investigation processes, and enhance the process by which they document steps in inquiry matters, so that they may more easily meet timelines and document matters in the event they must explain delays during reviews by the Health Review Board.

three: Registrants Who Don’t Authorize Criminal Records Review

Under the British Columbia Criminal Records Review Act (the “Review Act”) every registrant of a College under the Health Professions Act, as well as every member or registrant under the Chiropractors Act, the Dentists Act, the Medical Practitioners Act, the Optometrists Act, the Podiatrists Act, the Social Workers Act, and the Teaching Profession Act, must now provide a criminal record check authorization to his or her College at least once every five years.

If a registrant fails to provide an authorization as required, the Review Act stipulates that the registrant “must not work with children until the registered member has provided the criminal record check authorization” (section 15(2)(a)).Furthermore, the body “must” investigate or review the registration of the member “and take appropriate action under the Act that governs the governing body” (section 15(2)(b)).

Under the Health Professions Act, the need for a body to “investigate or review” may reasonably entail a three-step process: first, an investigation to determine why the registrant has not complied with the Review Act, which may involve a question of whether the registrant has engaged in criminal conduct; secondly, an investigation to determine if a registrant has violated the restriction against working with children after failing to provide an authorization; and third, concurrent action by the registration committee to limit the registrant’s practice in accordance with the restriction imposed by section 15(2)(a) of the Review Act.

In the event a regulatory body taking action under section 15(2)(b), the body must also provide notice of its action to the registrant’s employer, if any (section 15(3)).

four: The burden of proving misconduct has been reduced in misconduct cases

For more than two decades, the “burden” on professional regulatory bodies when proving misconduct has been to show “something more” than misconduct being “more probable than not”, as set out by Madam Justice McLachlin in Jory v. College of Physicians and Surgeons of British Columbia (1985, BCSC).

This higher standard was premised on the seriousness of any professional being charged with misconduct. This prosecutorial burden has, however, been changed by the decision of the Supreme Court of Canada in F.H. v. McDougall (2008 SCC 53).

The court rejected the “higher” standard of historically applied to civil allegations of a particularly grave nature, such as “fraud, professional misconduct, and criminal conduct, particularly sexual assault”.Instead the court decided “there is only one civil standard of proof at common law and that is proof on a balance of probabilities,” or in other words, “whether it is more likely than not that the event occurred.” The court reasoned that the seriousness of a case does not attract greater scrutiny because this implies that other cases demand less care, when evidence should always be scrutinized with care.

The reasoning of the court in McDougall clearly governs all civil cases, including professional misconduct cases. The decision has an impact not only upon discipline hearings, but also upon decisions of Inquiry Committees which must decide whether to order the issuance of a citation or notice of inquiry, based on the likelihood of the College proving misconduct at a formal hearing or inquiry.

five: Case Updates

Regulatory Investigations:
Power of investigator to examine a registrant’s practice including a power to observe procedures

The power of the Ontario College of Physicians and Surgeons to "inquire into and examine the practice of the member to be investigated" was found to include a power to compel observation of surgeries in Gore v. College of Physicians and Surgeons of Ontario, [2008] O.J. No. 3757 (Ont.Sup.Ct.).

The court noted the ordinary meaning of "inquire into and examine the practice" meant a power to observe a member in his or her practice, and could include observation of surgical procedures. The College was also found able to compel interviews with physicians, but the Health Professions Procedural Code confers on investigators the power of a commission under the Ontario Public Inquiries Act.

In that same case, an application for judicial review during an investigation of the registrar's decision to investigate, based on a lack of reasonable and probable grounds to believe the member had committed an act of professional misconduct or was incompetent, was refused by the court as being premature.

Under the BC Health Professions Act, while an inquiry committee does not acquire special powers during an investigation, every health professions college has a power, during any investigation and also otherwise, to appoint inspectors (s. 27(1)) in addition to its registrar (s. 27(1)). Inspectors are empowered to "investigate, inquire into, inspect, observe or examine" (a) premises, equipment, and materials, (b) records and (c) "the practice of the designated health profession performed by or under the supervision of the registrant" (s. 28) (emphasis added).



Consent Agreements:
A regulatory body’s power to enter contracts includes a power to settle discipline matters through an alternative consent “Stipulated Orders” process

The jurisdiction of APEG to enter into Stipulation Orders to settle discipline matters through agreements with members was confirmed as within APEG’s power to enter contracts in Salway v. Association of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 803.

That case involved a member who, after being issued a Notice of Inquiry following an investigation, entered into a Stipulated Order with APEG in which he consented to a reprimand, one year of peer review and a practice review. After several breaches of the Stipulated Order, APEG made a Supplemental Determination under the Stipulated Order which restricted the member from placing his seal on any product of his professional services without peer review of those services. The member challenged APEG’s statutory jurisdiction to enter into the Stipulated Order as an alternate discipline method.

The court confirmed that the Stipulated Order process was within the governance powers of the Council, that the Stipulated Order was a contract between the member and APEG, and that APEG had jurisdiction to enter into contracts.

Discipline Hearings:
Discipline panel showing possible bias where panelist referring to her personal knowledge of an issue bearing on a respondent’s credibility

The chair of a hearing panel was found to have raised an apprehension of bias when she asked a respondent during a hearing about an unrelated event bearing on his credibility and about which she had personal knowledge in Joyce v. Newfoundland and Labrador Chiropractic Board, 2008 NLTD 144.

The event involved the chair asking the respondent about an incident where she referred a patient to the respondent, the patient spoke to the respondent, and the respondent apparently advised the patient that he had spoken to the chair, when he had not.

The chair asked why the respondent would tell a patient he had made contact with the chair when he had not. When the chair was asked to identify the patient to be cross-examined, the chair withdrew her question, and said she would not use that information with all the evidence she had heard.

The court found nonetheless that the chair’s comments gave the impression she had drawn conclusions about the respondent’s credibility based on her personal experience with him in an unrelated matter and that she would not be able to ignore her views in making a determination, especially where an assessment of his credibility was likely a critical issue. The court ordered a new panel.

Let us help you meet the changes under the Health Professions Act and the Criminal Records Review Act. We can provide legal advice, process charts, legal guidelines, decision trees, templates, and workshops. Contact Lisa C. Fong at lisa@ngariss.com or (604) 331-1155.

The next edition of FIVE: Inquiry Matters and Discipline Hearings.

Read about us: check out our website at www.ngariss.com. We practice professional governance law, legal research and drafting, and commercial litigation.

In October, Lisa Fong and Michael Ng attended the 5th Annual National Forum on Administrative Law and Practice, organized by Osgoode Hall Professional Development in Toronto.

The two-day conference focused on the elimination of the “patent unreasonableness” standard of review in Dunsmuir v. New Brunswick, 2008 SCC 9, and the consequences to the meaning of the reasonableness standard. The other topics covered at the conference included excellent presentations on the independence of tribunals, the application of bias in tribunal proceedings, and best practices in judicial reviews.

In October, Lisa Fong gave a lecture on “Conduct Unbecoming: balancing intrusion into the private lives of professionals” at Queen’s University in Kingston, Ontario, and at Lakehead University in Thunder Bay, Ontario.

In November, Lisa Fong attended the 48th Annual Meeting of the Association of State and Provincial Psychology Boards (the “ASPPB”) in Nashville, Tennessee. She presented a discussion on Difficult Issues in Disciplinary Supervision.

Our firm’s aeroponic garden, tended by Deborah Britton, has sprouted its first crop of arugula.



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