February 14, 2011

HPRB Month Two: A commentary on the HPRB mediation process

Administrative Law
Health Professions Review Board
Professional Regulation

Heather MacKay, Registrar of the College of Dental Surgeons of BC, is scheduled to give a talk at a forthcoming CLE conference on April 1, 2011 about mediation at the Health Professions Review Board. This got us thinking about some of our own views about HPRB’s mediation requirement. Here are some thoughts.

Since every application to the Review Board involves a decision of a Registration or Inquiry Committee, every review will involve a challenge to the validity of a statutory decision or process. Instinctively, mediation of  Registration or Inquiry Committee decisions seems inconsistent with these committees being statutorily mandated to make decisions that meet the public interest. To some observers, mediation by a College might seem to undermine the very purpose of these committees, as mediation creates a process which encourages or risks the appearance of agreements being made, to reach outcomes other than the original decision, in light of concerns that are arguably not in the public interest, i.e.,  risk benefit analyses involving costs, time, and likelihood of success.

It strikes us that an easy answer to this issue is to only involve a college only in the process of the review of its decision, and not in any mediation process, except on a voluntary basis.  This supports the integrity of the decisions made by Registration and Inquiry Committees, and promotes a review process which focuses on reviewing decisions for procedural fairness, adequate investigations, and reasonable decision-making, while allowing a college’s board a route for dealing with decisions that can be improved in ways consistent with the public interest. A voluntary system would help ward against any appearance of the public interest being eroded by mediation outcomes.

The Rules of the Review Board do not, however, merely allow mediation, but in effect make it mandatory. In addition to providing a mediation stream (R. 31(1)), the Rules stipulate an application “will” proceed to mediation unless the Review Board directs otherwise (R. 36(1)). While colleges are “free to raise a principled objection to mediation on any application” (PD5, p.3), colleges may not opt out of mediation as a matter of their own judgment. Unless a college can persuade the Review Board to make an order against mediation in a given case, the college must participate. The suggestion that mediation is not “mandatory” but merely “robust encouragement” (PD5, p.3) seems to be a distinction without a difference, given that R. 38 entitles the Review Board to eliminate a college’s further involvement in proceedings, should the college fail to attend mediation.

We think it is laudable for the Review Board to promote understanding and communication between parties but wonder if by making mediation de facto mandatory for colleges, the Review Board has not given sufficient attention to the importance of the integrity of Registration and Inquiry Committee decisions.