March 29, 2012

BC HPRB: Investigation and dismissal powers of registrars under the Health Professions Act

Health Professions Review Board
Inquiry and Investigations
Professional Regulation

A five-member panel of the HPRB examined the practice of one health college allowing complaints to be dismissed, apparently following review and assessment by its Inquiry Committee, but in fact dismissed by the Registrar, in Complainant v. College of Physicians and Surgeons of BC, Decision No. 2011-HPA-0018(a) (January 6, 2012). The HPRB stated that College letters should accurately represent who makes a decision and the statutory authority for that decision, but went on to uphold the Registrar’s investigation and disposition.

Facts: In that matter, a complainant asserted that her husband’s illnesses (and his eventual death from lung and respiratory problems) resulted from a registrant misplacing a long term gastrostomy tube (a feeding tube) following a surgical procedure in 2009. She asserted the tube was misplaced with its tip protruding into her husband’s chest area, such that medications administered through the tube caused significant pain and bleeding. She asserted the misplacement was not discovered until three days later.

College disposition: The Registrar, purportedly writing and acting “on behalf of the Inquiry Committee, dismissed the complaint, concluding that misplacement was a “common occurrence” which was, in this case, corrected before any damage was done. The Registrar determined that no medication and no food went through the tube while it was misplaced.

On review, the complainant asserted the disposition should be set aside because the College failed to consider all pertinent information.

A decision by the Registrar: The disposition was apparently by the Inquiry Committee. But while the investigative record ran nearly 500 pages, only a single page was put before the Inquiry Committee. [24] The substantive disposition was in fact made by the College’s Registrar, which the College identified to the HPRB as being made under s.32(3)(c) of the Health Professions Act. [25] The HPRB looked closely to the Registrar’s jurisdiction to dismiss the complaint, “as a disposition made without jurisdiction cannot be reasonable.” [5]

Transparency of decision-making. The HPRB determined that for transparency and accountability, [30] the College’s letters should “accurately represent who actually made the decision and the authority under which it was made. A complainant should be told who made the disposition (the Registrar or the Inquiry Committee) and on what basis his or her complaint was disposed of under s.32(3)(a)-(c) or 33(6)(a)-(d).” [29] This enables a complainant to “fairly assess whether… the Registrar even had the authority to make the decision under s.32(3)….” [31] A disposition made without authority is unreasonable because it has no legal justification. [31]

The jurisdiction of the Registrar to investigate. After considering the interplay of various provisions of the Health Professions Act (HPA), the HPRB concluded that under one process stream available under the HPA, “the Registrar has room to conduct those investigations he or she considers necessary to fulfill his functions, including the ‘reporting and recommendations’ function, and then to recognize that when the matter comes before the Inquiry Committee under s.33(1), the Inquiry Committee is itself still under a statutory duty to investigate the complaint.” [48] After assessing the information it is given, the Inquiry Committee must give the Registrar whatever instruction it considers necessary to further investigate, although the additional work may be extensive in some cases and minimal in others. [48] the Inquiry Committee assumes ownership and responsibility over the investigation, and is not “a rubber stamp”. [48]

As for a second process stream under the HPA (under s.32(3)), the HPRB noted that in a previous decision (2009-HPA-0045(a)), it determined that only the Inquiry Committee could dismiss a complaint on the basis that conduct or competence is satisfactory (s.33(6)(a)). Thus, while the Registrar could make follow-up inquiries with the complainant and registrant for purposes of a decision under s.32(3)(a), or a request under s.36(1), if the proper disposition of the complaint required an investigation, the Registrar had to write a report to the Inquiry Committee under s.32(2), proceed with the investigation, and have the matter decided by the Inquiry Committee.

In this matter, the HPRB decided to depart from its prior view that the Inquiry Committee has exclusive jurisdiction to investigate complaints. [50] The power of a Registrar under s.32(3) to request that a registrant consent to measures under s.36(1) implies investigation. [53] “It is not possible to make a meaningful request under s.36(1) without having concluded, on the merits, that such a request is in order.” [53] Further, an investigation power seemed warranted by the Registrar’s power to dismiss a complaint as trivial etc. [54], and by the power to dismiss where a matter is not (if admitted or proven) a serious matter, which implies a power to determine if conduct or competence was satisfactory. [69 and 71]

Conclusions on the Registrar’s jurisdiction. The HPRB found that the Registrar here did have jurisdiction to dismiss the complaint under s.32(3)(c). The allegation involved a single event and a common occurrence, as opposed to constituting ongoing neglect, incompetence and improper care. [73] The alleged behaviour would not ordinarily result in an order being made under s.39(2)(b) to (e). [72]

Conclusions on adequacy of investigation and reasonableness of disposition. The HPRB found the investigation adequate, and the disposition reasonable. The Inquiry Committee had resolved contradictory evidence by reviewing nursing notes in detail, and by concluding that a transfer note was in error. [78]

Complainant v. College of Physicians and Surgeons of BC, Decision No. 2011-HPA-0018(a) (January 6, 2012)