February 21, 2011

HPRB Month Part Three: Reasonableness of Decisions

Administrative Law
Health Professions Review Board
Professional Regulation

The Health Professions Review Board (HPRB) has confirmed reviews of inquiry dispositions are on a standard of reasonableness. (For our summary of HPRB Decision No. 2009-HPA-0001-0004, click here.) But what does the test in Dunsmuir v. New Brunswick (2008 SCC 9) mean in the context of health professions? To date, HPRB has not found any inquiry decision unreasonable. Some illustrations can, however, be found in decisions of the Ontario Health Professions Appeal and Review Board (HPARB).

The following cases illustrate that a reasonable decision may fall within a range of possible, acceptable outcomes, but may be unreasonable if it falls outside of such range. The decision must also be supported by some reasons that can stand up to a somewhat probing examination. Although a decision need only be defensible on the facts and the law, it will be unreasonable if its reasoning is so flawed that no line of analysis could lead from the evidence to the conclusion, including where the reasons fail to reveal such a line of analysis, e.g., by failing to address main relevant factors.

EXERCISE OF PROFESSIONAL JUDGMENT: In M and P.D. v. B.D., DDS, HPARB File 08-CRV-0130 (May 13, 2009) [for the decision, click here], a Complaints Committee took no action where a dentist exercised professional judgment in treating a four-year-old patient who was upset, crying, screeching and kicking. HPARB found the decision unreasonable; the committee did not also decide if the respondent reasonably exercised his clinical judgment. In accepting the member felt he was continuing treatment in the patient’s best interests, the committee “failed to address the main relevant factors associated with the issue of carrying on with treatment. […] It… appears to have fettered its obligation to address the key issues with an uncritical reliance on professional judgment.” HPARB concluded, “…the next question it should have undertaken was whether it was reasonable for the Respondent to have exercised his clinical judgement as he did, given the particular circumstances outlined.”

FAILURE TO KEEP PROFESSIONAL RECORDS: In H.B. v. M.M.B., MD, HPARB File No. 07-CRV-0547 (December 11, 2009) [for the decision, click here], a patient complained about treatment by a plastic surgeon concerning a breast reduction. One issue involved the physician failing to appropriately document his office visits with the patient. The committee declined to chastise the member for failing to record matters in the medical chart, as it was unable to determine the significance of the patient’s visits and conversations with the physician (e.g., during a post-surgery examination) for which no records were kept. HPARB found the decision unreasonable, as a “follow-up” examination following surgery “cannot reasonably be characterized as insignificant.” HPARB also noted “accurate and thorough documentation of information in the patient record plays a critical role in the provision of quality health care.” It further noted that,

“[57] …Documentation in the patient record serves a number of functions.  It is required to record important facts, findings and observations about an individual’s health, including outcomes of surgical interventions. The patient record also provides a chronological record of the patient’s care. Moreover, it facilitates the ability of health care providers to assess, plan and monitor care over time, and it enhances communication and continuity of care among health professionals involved in the patient’s care.  In the absence of appropriate documentation, health care can be seriously compromised.”

FAILURE TO ANALYZE COMPLAINT ISSUES IN REASONS: In H.A. v. O. R.S., DDS, HPARB File 09-CRV-0401 (July 6, 2010) [for the decision, click here], an elderly widow complained that a dentist recommended extracting all her teeth for $12,700, only to tell her after extracting them she would receive a second invoice for $14,200 for her bottom dentures. In addition to complaining of poor work which led to her having no teeth for a year, she complained of discrepancies in the accounting of her payments in financial statements she received from the dentist’s office. The committee could not locate the dentist, who had retired, but reviewed patient charts and concluded the respondent had provided necessary work at appropriate fees, within practice standards. HPARB found the committee had inadequately investigated, and unreasonably decided to take no further action. The patient charts did not indicate a discussion on fees before the patient began her payments, and the committee did not analyze the concern about the dentist failing to address additional charges until after the patient’s teeth were extracted. The committee also failed to analyze discrepancies in the dentist’s account of payments.