January 8, 2013

2012 Professional Regulatory Round-Up

Administrative Law
Health Professions Review Board
Human Rights
Inquiry and Investigations
Professional Regulation
Registration and Fitness

Since professional regulatory bodies are creatures of statute, one might mistakenly think that all their duties are expressed within the four corners of their enabling statutes. 2012 was, however, a year when courts emphasized in various contexts the need for regulators to be increasingly sophisticated, by dealing with less obvious but nonetheless binding external requirements, such as Charter rights and human rights, as well as with “internal” procedural fairness rights, and a possible need for health regulators in BC, at least, to deal with single-instances of “negligent” conduct as an aspect of competence.

1. Tribunals and Charter values: For example, the decision in Doré makes clear that professional regulatory bodies making decisions or exercising powers that collide with Charter values, such as freedom of expression, are responsible for understanding those Charter values, respecting them, and balancing them with statutory objectives. In exchange for the weight of that responsibility, courts will review discretionary decisions by regulators with deference as to how they may justify infringements of Charter rights and freedoms. Courts have accepted the premise, but also create a corresponding expectation, that regulatory boards or committees have expertise in how to reconcile Charter values with competing considerations relating to their professions. These were the principles underlying Doré v. Barreau du Quebec, 2012 SCC 12 (March 22, 2012), where a lawyer received discipline for writing a letter that sternly took a judge to task. The court upheld a reprimand (issued in conjunction with a suspension) as a reasonable outcome, where the discipline infringed the lawyer’s freedom of expression guaranteed under section 2(b) of the Charter, but gave effect to a professional requirement that lawyers respond to criticism with “dignified restraint”. (See our blog here.)

2. The Charter and regulatory laws: Of course, as the investigatory powers of regulatory bodies see increasing scope or application, one can expect that registrants will increasingly test the validity of such powers. Such testing can be seen in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, where after some considerable delay (due to concurrent criminal proceedings), a college looked into allegations of a registrant’s historic, off-duty sexual involvement with a number of young boys. The registrant tested both the fairness of the delay (based on procedural fairness) and the constitutionality of the college investigator’s “summons” powers (based on the Charter right of everyone to be secure against unreasonable search and seizure). The court found the delay did not impair his right to make full answer and defence, and that the delay (as distinct from the criminal proceedings) did not expose him to significant personal prejudice. The court also found the summons power to be constitutional, given it was limited to duly authorized investigations into specified misconduct (although such investigations could extend to off-duty conduct, as well as to professional conduct). (See our blog here.)

3. Tribunals and human rights: As with Charter rights, professional regulatory authorities are also responsible for understanding human rights, respecting them, and balancing them with statutory objectives. An instance of a regulatory body – and a court – grappling with the human rights implications that arise from drug addictions of registrant was illustrated in Wright v. College and Association of Registered Nurses of Alberta, 2012 ABCA 267 (September 18, 2012) [application for leave to appeal to the SCC filed Nov 16, 2012]. The Alberta Court of Appeal split in its decision in this matter. The two different judgments, each written by a majority and a minority of the justices of the appeal panel, show different approaches to how a human rights analysis may play a part in a professional disciplinary proceeding. They also show different approaches to how a registrant can prove (if ever) that an addiction was the cause of her misconduct.

The Wright case, when seen in light of Doré, also raises the interesting legal question: should regulatory bodies receive any deference when deciding human rights issues in the context of registration and discipline matters? Under Doré, they receive deference on Charter issues at least where they relate to professional regulation. But all the justices in Wright agreed the regulator, which had expertise on professional standards and on its home statute, did not have expertise on human rights law, and therefore should receive no deference on human rights issues. [34 and 94] (See our blog here.)

4. Negligence and the scope of conduct or competence issues: Health regulatory bodies in BC also face the potential responsibility of regulating “negligent” acts by registrants. In BC, the Health Professions Review Board hears reviews by complainants who have full party-status to challenge regulatory actions (or inactions) falling short of a hearing. In the matter of Complainant v. College of Dental Surgeons of BC, 2009-HPA-0090(b), the HPRB refused to accept a regulator’s dismissal of a complaint alleging what the college found to be an isolated incident of negligence; the HPRB determined that the regulatory body could not decide to dismiss the complaint with no further action unless it could conclude that the conduct or competence of the registrant which formed the basis of a complaint had been “satisfactory”. That finding highlights, but does not answer, the question whether one instance of substandard care (or “negligent” care) is a matter that a health professions regulatory body in BC must address as either a conduct or competence issue. The college filed a petition for judicial review of this decision on November 21, 2012.

Historically, incompetence has required a pattern of substandard work, rather than an isolated incident. Similarly, the BC Court of Appeal has stated a regulatory body’s interpretation of its own professional standards (e.g., whether such standards extend to singular instances of substandard care) deserve deference, as long as a decision is justified, transparent and intelligible: Salway v. Association of Professional Engineers and Geoscientists of BC, 2010 BCCA 94 at para. 32. But the HPRB might not defer to any single college’s interpretation of what “professional misconduct” or “satisfactory” conduct means under the Health Professions Act. In any event, whether a college must or should choose to treat a single instance of substandard care as being a conduct issue, or a competence issue, may have a serious impact on the number of complaints the college may receive. For example, anyone intending to sue a professional for malpractice would have a strong motive to put the matter before that professional’s college, in order to obtain free investigation and document discovery at the hands of the college (and, hopefully, a finding the claimant can use against the professional in court). (See our blog here.)

5. Adequacy of reasons: As statutory decision makers, registration and discipline committees continue to have duties to adequately justify their decisions in reasons.

5A. For example, when a registration committee assess substantial equivalence when addressing foreign-trained applicants, a finding that an applicant has failed to show substantial equivalence demands sufficient reasons for why an applicant’s qualifications are not substantially equivalent, as illustrated in Saba v. Ontario College of Teachers, 2012 ONSC 1734. (See our blog here.)

5B. Similarly where a discipline panel finds against a registrant by favouring a complainant’s version of events, and finding that the registrant is not credible, it cannot merely set out its conclusions; it faces the difficult but necessary task of explaining why it has rejected a registrant’s testimony, preferably by going beyond the often-unreliable factor of witness demeanour. The need for reasons that meaningfully address credibility findings is illustrated in College of Physicians and Surgeons of Ontario v. Noriega, 2012 ONSC 4084. (See our blog here.)

6. Procedural fairness: No review of regulatory law is complete without covering developments on the ever-present requirements of procedural fairness.

6A. The importance of confidentiality within regulatory processes is underscored by Clark v. Alberta (Institute of Chartered Accountants, Complaints Inquiry Committee), 2012 ABCA 152, where a complaint alleged that a member, Clark, had disclosed confidential client information to third parties. Ironically, the investigator asked Clark to send information for the investigation to his wife’s email account. An appeal panel concluded that the unacceptable disclosure of confidential information amounted to an abuse of process (and a breach of the statute) warranting a stay of the proceeding – an approach with which the Alberta Court of Appeal agreed. (See the case here.)

6B. Procedural fairness may be codified or modified by statute, and this includes the right of a respondent to receive notice of a complaint, or to have opportunity to respond to a complaint, where a regulatory bodies’ enabling statute provides for such a right at the investigation stage. This is illustrated in the Ontario case of Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541. The court on Volochay also usefully noted that even where a complainant withdraws a complaint, a regulatory authority need not stop an investigation, given its public interest mandate, especially where a member may have influenced the withdrawal of the complaint. (See our blog here.)

7. Investigations and “ungovernable” registrants: Finally, we note a panel of the Law Society of Upper Canada revoking a member’s licence, not for the conduct for which he was investigated, but for his failing to respond to investigative communications, which (according to a majority of the panel) indicated the registrant’s unwillingness to abide by the authority of the regulatory authority. Law Society of Upper Canada v. Slocombe, 2012 ONLSHP 22 (February 6, 2012). The majority said a failure to cooperate could result in a range of penalties, with the total lack of co-operation in that case warranting revocation. The dissenting panelist recommended a three-month suspension, with revocation if the member had not provided all requested documents by the end of that period.

It is interesting to note that many professional regulatory bodies do not appear to utilize ungovernability as a basis for discipline. But ungovernability is a powerful basis for revoking registration where a registrant continually refuses to be regulated, such as by repeatedly failing to be responsive, or by showing a complete disregard for professional standards. (See our blog here.)

What we are watching for in 2013

As we reflect on the many interesting decisions of 2012, it is also worth mentioning the various cases that we anticipate may bring important new developments in 2013.

Death and health care – Although the assisted suicide case of R. v. Carter is not a professional regulatory case per se, its outcome will have significant implications as to how certain health care professionals’ conduct will be regulated in the future. This controversial decision of the BC Supreme Court held that the absolute prohibitions against assisted suicide in the Criminal Code violated sections 7 and 15 of the Charter (the Charter right to “life, liberty and security of the person” and the Charter guarantee of equality, respectively). Since this decision was issued on June 15, 2012, the Government of Canada has appealed which means the BC Court of Appeal will have the next opportunity to weigh in on this important issue. If the decision on appeal is to uphold the BC Supreme Court decision, the regulators of the health professions should be prepared to start engaging with government as to the best model for regulating in this ethically divisive area.

Another case with important ramifications for the regulation of health care professionals will be the decision of the Supreme Court of Canada in Cutherbertson v. Rasouli. This case also deals with policy on death and health care, but addresses a patient’s right to live rather than die. It started with a successful application to the Ontario Superior Court of Justice by the litigation guardian of a patient alleged to be in a persistent vegetative for an order to prevent two physicians and a hospital from terminating life-sustaining treatment to this patient. The application was successful at the lower court and upheld before the Ontario Court of Appeal. On December 10, 2012, the Supreme Court of Canada heard a further appeal in this matter and its decision should be forthcoming later this year. As with the Carter case, health care regulators will want to pay attention to this decision in order to understand how the standards of conduct for their members may need to be adapted in its wake.

Our previous blog entry on the Ontario Court of Appeal decision is here.

Regulating negligence – As mentioned above, one of the more interesting and controversial cases from the Health Professions Review Board this past year was the decision in Complainant v. College of Dental Surgeons of BC, 2009-HPA-0090(b). On November 21, 2012 a petition was filed by the College of Dental Surgeons to judicially review this decision on the basis of the Review Board’s interpretation and application of the Health Professions Act. Regulators operating under the Health Professions Act will surely be interested in the outcome of this BC Supreme Court action as it may have implications for what conduct and competence issues need to be addressed by the regulator and how these can be addressed by a regulatory body’s inquiry committee. In particular, it will be of interest to BC’s health professions to hear from the courts as to whether the HPRB is justified in its position that complaints of isolated incidents of negligence must invariably be addressed by regulatory bodies.

Business arrangements – Another interesting case to note moving forward into 2013 is the Ontario Superior Court of Justice decision in Takhar et al. v. Zellers Inc. et al., 2012 ONSC 2546. Although this case did not make it into our top cases for 2012, it does have important ramifications as to how professionals are allowed to do business and with whom. It involved an application to the court by several pharmacists working in Zellers stores in Ontario for injunctive relief preventing Zellers from transferring patients’ health records to Loblaw and Target upon their agreement to purchase the Zellers pharmacies. The pharmacists unsuccessfully sought to oppose this transfer of health records on the basis that it would cause them to breach their professional obligations as well as applicable privacy legislation. The court found that there was no basis for injunctive relief as Zellers was acting within its rights in transferring the patient records. This case raises interesting policy issues as to what business arrangements between health professionals and non-health professionals will be condoned by regulators and the courts. As corporations increasingly look to offer professional services in novel settings such as supermarkets, department stores, gyms, spas and hotels, regulatory bodies will need to continue to grapple with issues such as who owns patients’ medical information and what are the unique obligations of professions working in these settings.

A link to our previously blog entry on this decision is here.

For our 2011 Regulatory Round-up, click here.

For our 2010 Regulatory Round-up, click here.

Lisa C. Fong, Michael Ng and Benjamin Ralston