March 1, 2011

HPRB Month Part Four: Exclusion of evidence

Administrative Law
Health Professions Review Board
Professional Regulation

The Review Board has been in place for just over two years, but is still in its “early days” of developing approaches to hearing issues.  In Part 4 of HPRB month, we look at the Review Board’s decisions on excluding information from complainants where the information is sensitive non-party information, relates to prior complaints about a registrant by someone other than the complainant, or involves settlement discussions for which confidentiality was assured, or for which settlement privilege is claimed.

Parties before the Review Board may apply under s.42 of the Administrative Tribunals Act to have information excluded from another party. The first juncture in the review process for this type of application is where each College must disclose the “record” of a proceeding.  The Review Board has defined the “record” widely to include all  records, documents, emails, and things in custody or control of the College “relevant” to the subject matter of the review, even if not put before the Inquiry committee. In practice, this definition of the “record” will capture documents the College has not disclosed to the complainant during the inquiry process, including documents concerning non-parties (such as documents containing non-party medical information or other personal information), documents or information about a registrant’s prior complaints, and documents setting out settlement proposals and responses.

In the three Review Board decisions published to date on limiting disclosure — 2009-HPA-0027(a) re College of Registered Nurses; 2009-HPA-0090(a) re College of Dental Surgeons; and 2010-HPA-0016(a) re College of Psychologists — the Review Board set out basic guiding principles in deciding applications for excluding evidence, and began developing a pattern for treating certain types of documents.  A summary of each of these cases is available for review on our blog under the category “Health Professions Review Board”, but here is a summary of the principles and results we can glean to date:

1.       The nature of excludable evidence must be “so sensitive” or “especially sensitive” that  the risk of damage to the administration of justice caused by its disclosure to one or more parties outweighs “the benefits of the usual principle of full disclosure”. This is not a lax test.  To make an order for exclusion the Review Board must be of the opinion  that nature of the information or documents requires exclusion to ensure the proper administration of justice. (2009-HPA-0027(a), paras. 20 and 71). This is illustrated by 2010-HPA-0016(a), where the records excluded were sensitive patient-therapist records of a non-party (para. 3).

2.       Names of a registrant’s  patients may be excluded from disclosure to a complainant. This is illustrated in 2009-HPA-0090(a), where the Review Board found that non-party patients whose dental charts had been reviewed had a “a clear and significant privacy interest” in not having their names disclosed to a complainant (para. 30).

3.       In a case where a registrant can demonstrate that a complainant commenced a review for “colourable purpose”, or that the complainant has “no interest in the subject matter of the complaint”, information may be excluded without it having to meet the “so sensitive” standard. (2009-HPA-0027(a), para. 64). The “standing” of a complainant was a factor in 2010-HPA-0016(a), where the complainant was not a patient, or a representative of a patient (para. 3), leading to the Review Board preventing disclosure of a non-party patient’s sensitive medical information to the complainant.

4.       Where information is “clearly irrelevant to a review”, that information may be appropriately excluded in certain cases (2009-HPA-0027(a), para. 78).  The Review Board clarified in 2009-HPA-0090(a) that applications for exclusion of evidence should not be used to obtain advance rulings on relevance “separately from any overriding confidentiality consideration” (para. 23).  The Review Board further clarified that applications for exclusion based on relevance are an “inefficient use of time and resources and a usurpation of the function of the hearing panel”… (para. 27), and stated that the Review Board should, in deciding under s. 42 of the ATA, refrain from making any “final” determination about relevance, which is a matter for the hearing panel (para.25).  That member went on to decide, however, under s. 42 that the names of a registrant’s other patients should be withheld from the complainant on the basis they were not relevant to the complaint, the investigation, or the disposition by the Inquiry Committee (paras. 30-31).

5.       The fact of a registrant’s personal information, for example, not being disclosable to “the general public” under FOIPPA is not a bar to its disclosure to a complainant before the Review Board (2009-HPA-0027(a), paras.40-45).

6.       The fact of information having been promised or maintained as confidential during the inquiry process is not a basis for the Review Board to exclude disclosure in its review process (2009-HPA-0027(a), paras.43 and 65).

7.       The results of a review of a registrant’s records relating to the treatment of patients other than the complainant may not be excluded where the review formed part of the investigation (2009-HPA-0090(a), paras. 39-40).

8.       Settlement discussions made during the investigation process that would otherwise be cloaked by settlement privilege may not, on that basis alone, be privileged as against a complainant seeking a review, and excluded under s. 42 of the ATA (2009-HPA-0027(a), paras.60-71): “If settlement privilege does apply… an exception clearly applies to the new Review Board review process” (para. 61).

The Review Board’s approach to applications raises a number of important issues for regulators, including the consequences of information not disclosable within the inquiry process becoming disclosable in the Review Board process.  Lisa C. Fong will be speaking more in depth on disclosure issues in the Review Board process at the upcoming BC CLE on Self Governing Professions on April 1, 2011.