April 4, 2011

HPRB and Registration: Standard of Review and Adequacy of Reasons

Administrative Law
Health Professions Review Board
Professional Regulation
Registration and Fitness

The Health Professions Review Board has confirmed the standard of review for registration decisions is reasonableness, but subject to adequacy of reasons. Accordingly, the Review Board remitted examination results involving different assessments by three examiners back to a Registration Committee to consider inconsistent findings of examiners, in the absence of reasons showing it had addressed such inconsistencies.

In Applicant v. College of Denturists of British Columbia, HPRB Decision No. 2009-HPA–0039(b), a College administered examinations including the Complete Denture Evaluation (“CDE”), consisting of three components: laboratory, clinical and treatment planning and patient records. The College required a passing score of 65 percent. An applicant wrote the CDE for a second time, and the Registration Committee failed the applicant on the laboratory component, as two of three examiners disagreed with his assessment during a case presentation that the bite for a wax try-in denture was off. The Board examined the examiners’ notes, but none of the examiners testified as witnesses. The notes of the Registration Committee did not elucidate why it approved the clinical examination score.

The applicant sought to tender demonstrative evidence, in the form of the patient and the wax try-in denture from the 2009 examination. The College tendered an expert report by a denturist as to why the Review Board should reject demonstrative evidence, and the Review Board declined to accept that evidence. The College proved, through expert evidence, the wax forming the try-in denture was a “very unstable material,” such that the accuracy of the centric could be altered through air temperature, the try-in procedure, and force applied by the patient. [46]

The Review Board accepted a deferential standard of reasonableness, but the minutes of the Registration Committee meeting did not show the Committee considering or investigating discrepancies in the three examiners’ markings and notes. The reasons for the decision were therefore inadequate:

[60] Conversely, where the registration decision is discretionary and involves a complex examination process with conflicting, and in some instances, potentially confusing examination markings and notes, as is the case here, a reasonable decision will in our view require a more careful and detailed explanation of the process and consideration given as to how the decision was arrived at to meet the legal requirement that the decision to be reasonable demonstrates “justification, transparency and intelligibility within the decision-making process.”

[61] It is not the role of the Review Board to tell the Registration Committee what things to consider in making its decision to register or not register the Applicant but, upon review of the Record the Review Board should be able to determine that some consideration has been given to discrepancies, inconsistent findings and possible explanations for outcomes where more than one explanation may exist. (emphasis added)

The Review Board remitted the matter to the Registration Committee to consider and investigate, as it deemed appropriate, any discrepancies, and to interview the examiners, as it deemed necessary, “to better understand any discrepancies in their notes or markings and further to consider whether there are any probable explanations for any change in the wax try-in denture during the examination process….” [69]

Applicant v. College of Denturists of British Columbia, HPRB Decision No. 2009-HPA–0039(b).