May 24, 2016

How to decide about extraordinary or interim action: Scott v CMTBC, 2016 BCCA 180

Inquiry and Investigations
Professional Regulation

When screening or inquiry committees decide on interim or “extraordinary” measures pending further investigation, they need to decide how much information is enough. This question arises under BC’s Health Professions Act, when any inquiry committee may take action “necessary to protect the public” (section 35), but registrants may demand that the committee weigh evidence of their “innocence” as part of their decision-making. Must an inquiry committee engage in a mini-trial before imposing temporary practice restrictions? On April 25, 2015, the B.C. Court of Appeal spoke to how inquiry committees ought to decide that an allegation discloses a risk to the public warranting protective action: Scott v College of Massage Therapists of British Columbia, 2016 BCCA 180.

The court made its decision after hearing from the College of Massage Therapists of British Columbia (the “College”); a registrant, Scott, against whom the College’s Inquiry Committee ordered a chaperone for female patients pending investigation, and three intervenors: the West Coast Women’s Legal Education and Action Fund (“West Coast LEAF”), the College of Physicians and Surgeons of B.C. (the “CPSBC”), and the Registered Massage Therapists Association of B.C. (the “Association”).

While an order by the College’s inquiry committee’s under HPA s. 35 was initially been set aside by a judge of the B.C. Supreme Court, the B.C. Court of Appeal allowed the College’s appeal. The Honourable Chief Justice Bauman decided that  s. 35 can be used where an inquiry committee takes the (two-step) view “that there is a prima facie case and that the prima facie case, having regard to such material as is put before it by the registrant, requires that the public be protected by an interim order” [55(iv)]. As for what constitutes a prima facie case, he clarified, “There will be no ‘mini trial’ on the index allegations”, and an inquiry committee need not hear evidence about whether an allegation is or is not well-founded. The committee could, however, receive evidence from a registrant trying to show that an allegation is “manifestly unfounded or manifestly exaggerated,” or showing the effect of an interim order on the registrant. [81]

Background: In Scott, a female patient brought a complaint of sexual misconduct during a therapy session against a registered massage therapist. During the alleged misconduct, the female patient was facedown on the treatment table. She said she heard the massage therapist unzip his pants on two occasions throughout the session and masturbate while he continued to massage her with one hand. The massage therapist was also said to have placed his penis on her wrist twice, which was covered by a thin draping material. The complainant did not look due to fear, so her evidence was based on what she heard and felt, not on what she perceived visually. Based on this information, the inquiry committee ordered “extraordinary action” under HPA s. 35 while its investigation continued, in the form of a chaperone requirement while he treated female patients.

Scott appealed to the B.C. Supreme Court under HPA s. 35(5). The superior court reversed the order and determined that no reasonable person could have concluded a risk to the public based on what the court identified as insufficient evidence. The court also decided the complainant’s account was implausible because it was not based on what she saw when she could have “easily” looked to confirm her suspicions. You can find our blog summary of this decision here.

The College appealed to the Court of Appeal on several grounds, including that the chambers judge failed to apply a reasonableness standard of review while improperly re-weighing the evidence, and erred in finding the decision unreasonable by improperly requiring the inquiry committee to weigh the respondent’s version of events.

The Court of Appeal’s approach: In allowing the appeal, and ordering the matter remitted to the Inquiry Committee, the court adopted the approach of the English Court of Appeal in Perry v. Nursing and Midwifery Council, [2013] EWCA Civ 145. The court first noted that guidelines noted by the court in Perry, established by the professional body in that case, were apt for interim orders under HPA s. 35:

(i) “For an order to be necessary for the protection of the public the inquiry committee must be satisfied that there is a real risk to patients, colleagues or other members of the public if an order is not made. It is not enough for the panel to consider that an order is merely desirable.

(ii) “The inquiry committee should consider the seriousness of the risk to members of the public if the registrant were allowed to continue practicing without restriction. This includes consideration of the seriousness of the allegation, the nature of the evidence and the likelihood of the alleged conduct being repeated if an interim order were not imposed.

(iii) “The inquiry committee should take into account the impact which an order may have on the registrant: an order will impact upon the registrant’s right to practice his or her profession and may also impact financially and on the registrant’s reputation. The inquiry committee must balance the need for an interim order against the consequences for the registrant and satisfy itself that the consequences of the order are not disproportionate to the risk from which the panel is seeking to protect the public.

(iv) “When considering an interim order, the inquiry committee is not making findings of fact or making findings as to whether the allegations are or are not established. It is sufficient for the inquiry committee to act, if it takes the view that there is a prima facie case and that the prima facie case, having regard to such material as is put before it by the registrant, requires that the public be protected by an interim order.

(v) “As regards the amount of evidence before the inquiry committee, one would expect the allegation to have been made or confirmed in writing, whether  or not it has yet been reduced to a formal witness statement. The inquiry committee will need to consider the source of the allegation and its potential seriousness. An allegation that is trivial or clearly misconceived should not be given weight.

(vi) “If the inquiry committee decides that an interim order is necessary it should not automatically impose an interim suspension but should first consider whether an interim conditions of practice order would be sufficient and proportionate.” [55]

Next, the court followed the approach in Perry that a committee must consider the nature of the evidence and, in doing so, can discount evidence inconsistent with objective or undisputed evidence, or which is manifestly unreliable. A registrant may also give evidence on the effect of an interim order on the registrant, or evidence to establish that the allegation is “ manifestly unfounded or manifestly exaggerated”. A committee is not, however (and this may be the most important aspect of the decision), “otherwise required to hear his evidence as to whether or not the substantive allegation against him is or is not well-founded; that is not the issue on the application for an interim order.” [56] The court also quoted the view in Perry that a committee “must not and cannot decide disputed issues of fact in relation to the substantive allegations,” and “must also be extremely cautious about rejecting or discounting evidence on the basis that it is incredible or implausible.” [56]

The test under section 35: The court decided that a statement in Hannos that the threshold for extraordinary action is “a prima facie case that the member poses an immediate risk to the public” inadvertently conflated (i.e., accidentally combined) two separate questions: the strength of the case supporting the index allegations, and the case for immediate risk of harm to the public: Hannos v. Registered Nurses Association of British Columbia, [1996] B.C.J. No. 138 (S.C.)). [67-68] These are separate questions.

Step 1: A prima facie case for the allegations. In terms of deciding when allegations disclose a case for misconduct or incompetence, the court applied the Perry approach directly to HPA s. 35:

“The inquiry committee should discount evidence that is inconsistent with objective and undisputed evidence or which is manifestly unreliable. The committee should consider any evidence led by the registrant to establish that the allegation is manifestly unfounded or manifestly exaggerated. But the committee is not otherwise required to consider the registrant’s evidence as to whether or not the substantive allegation against him or her is or is not well founded; that is not the issue on the s. 35 application.” [75]

The court reiterated that an inquiry committee is not to engage in a “mini-trial” of the allegations. [81] The court confirmed that under HPA s. 35, an inquiry committee should be satisfied of a prima facie case, meaning a case for allegations which, if believed, is sufficient to justify a verdict “in the absence of an answer”, and that the public requires protection through an interim order. [80-81] It disapproved of a more burdensome “strong” prima facie case standard, where an inquiry committee may consider more onerous conditions, like a suspension. [77-78]

Step 2: An immediate risk of harm to the public. In terms of deciding when a case for misconduct or incompetence discloses a risk of harm to the public, the court decided that the Inquiry Committee properly instructed itself on the correct approach when it considered the following factors to assess an immediate risk to the public safety:

  • “the seriousness of the alleged unprofessional conduct;
  • “whether any measures are currently in place to protect the public; and
  • “the probability of harm.” [61-63]

The error by the lower court: The Court of Appeal decided that the judge below made errors when she set aside the order of the inquiry committee. She improperly weighed the evidence to decide if it was sufficient to establish that the registrant had engaged in sexual misconduct, which is “not the job of the inquiry committee… and… not the job of the court on an appeal….” [86-87] The judge below also erred by suggesting that the inquiry committee was to decide between the two versions of events. Rather, the task of the committee was to consider the reliability of the evidence, its internal and external consistency, the plausibility of the complaint, and motivation, in aid of determining if the complaint is manifestly unfounded or manifestly exaggerated. [88]

Due to its findings that the judge below erred, the Court of Appeal did not have to address the reasoning of the judge below that the complainant’s non-visual senses was insufficient to “substantiate” the complaint. The court did, however, note the College’s argument that non-visual evidence has been accepted in criminal cases of sexual assault, and in regulatory cases involving allegations of sexual misconduct by health professionals. [29]

Procedural fairness issues: The inquiry committee made its first order for extraordinary action without notice to the Registrant, but it provided him with an opportunity to request that the inquiry committee reconsider its order, and make submissions. While the court below did not find that the decision of the inquiry committee lacked procedural fairness, the Court of Appeal noted that, “in the circumstances of this case,” the inquiry committee “should have ensured that Scott had a reasonable opportunity to attend the initial s. 35 hearing in person with or without counsel.” [37] While this statement does not preclude an inquiry committee from taking extraordinary action without notice in appropriate cases, a committee should be cautious about deciding on extraordinary action without first giving a registrant an opportunity to provide input, “with or without counsel”.

Scott v College of Massage Therapists of British Columbia, 2016 BCCA 180 (April 25, 2016)

Lisa C. Fong, Michael Ng and Kassie Seaby