DR. HENRY’S PUBLIC HEALTH ACT DECISIONS ARE NOT SUBJECT TO INVESTIGATIONS UNDER THE HEALTH PROFESSIONS ACT

Where registrants are fulfilling public roles under statutes apart from the Health Professions Act — such as where a physician acts as a “health officer” or “provincial health officer” under BC’s Public Health Act (”PHA”) — a college’s jurisdiction to regulate the conduct of registrants does not confer jurisdiction to regulate how they carry out their statutory duties. The Health Professions Review Board has affirmed this limit to the jurisdiction of regulatory authorities in Complainants v. College of Physicians and Surgeons of British Columbia (No. 1), HPRB-HPA-21-G013, 2022 BCHPRB 10.

In November and December 2020, several individuals filed complaints against a physician acting as British Columbia’s Provincial Health Officer (the “PHO”), relating to how she was handling the COVID-19 pandemic through a series of orders issued under the PHA. The complaints varied, but all of their elements fell into the following categories: [37]

• (a)  In making the Orders, Dr. Henry did not rely upon science, or alternatively relied upon bad science.
• (b)  The Orders are disproportionate to the harm caused by COVID-19.
• (c)  Dr. Henry failed to provide the public with information about alternative measures to combat COVID-19.
• (d)  Dr. Henry has promoted a vaccine that is experimental and not safe or effective. This may be criminal behaviour.
• (e)  Dr. Henry knowingly provided false information to the public.
• (f)  Dr. Henry is in a conflict of interest and not acting independently.
• (g)  Notwithstanding her role as the PHO, must comply with the CMA and College standards.
• (h)  If Dr. Henry is not subject to the College requirements, then the Registrant should have advised the public that she was not speaking as a physician.
• (i)  Dr. Henry inappropriately accessed the private medical records of individuals to encourage them to get vaccinated.
• (j) Dr. Henry did not respond to communications from some of the Complainants.

Without conducting any investigation, the Registrar of the College of Physicians and Surgeons of BC dismissed the complaints on the basis oversight of decision-making by persons who are exercising statutory powers — such as the Registrant in her capacity as PHO — lies with the Supreme Court of British Columbia, by way of judicial review, and not the College. The Registrar held that the jurisdiction of the College does not extend to determining if [the Registrant] has met the requirements for making orders pursuant to the PHA, nor does the jurisdiction extend to determining if [the Registrant] has improperly exercised her discretion when applying her statutory powers.”

The Complainants applied for review to the Health Professions Review Board, but the Review Board affirmed the Registrar’s disposition on the following grounds:

1. The Registrar’s “investigation” was adequate. “[67] Given the goal of using limited resources wisely, I find the Deputy Registrar’s approach of first determining whether the College had jurisdiction over the complaints to be appropriate in this case where the Registrant was acting at all material times in her capacity as the PHO….” The Registrar’s steps were sufficient to determine whether HPA s. 32(3) was applicable, without squandering resources.
2. The dispositions were reasonable. In particular, they provided a transparent and intelligible explanation, and they were also justified.
   1. The Review Board noted its own decision that complaints may be dismissed where they relate to institutional policies or decisions outside of the college’s regulatory jurisdiction: Complainant v. BCCNP, 2019 BCHPRB 10 at paras. 82 and 84.
   2. The Review Board also noted decisions by Ontario’ Health Professions Appeal and Review Board, with one confirming the dismissal of a complaint pertaining to an order made by a public health nurse under a public health statute (J.P. v. E.M., 2021 CanLII 7968), and another confirming a lack of jurisdiction over physicians working as government medical health officers (T.N. v. R.M.S., 2014 CanLII 61674 at para. 33, and J.P. v. C. Q.-T. L., 2020 CanLII 34723 at para. 80).

The Review Board also noted that the timelines for complaint dispositions under the HPA were suspended during the pandemic, under s. 7(3) of the Health Professions General Regulation, B.C. Reg. 275/2008.

Complainants v. College of Physicians and Surgeons of British Columbia (No. 1), HPRB-HPA-21-G013, 2022 BCHPRB 10