October 2, 2011

HPRB: Robustness of reasons when resolving complaints through remedial education under HPA s.36(1)(b)

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

The Health Professions Review Board has signaled to Inquiry Committees resolving complaints by way of an undertaking that includes taking educational courses that they must set out reasons that justify the appropriateness of the remedial work. Fulsome reasons include details of the particular courses, desired learning outcomes, and processes for measuring learning.

In a recent case, the mother of a stillborn child complained of misconduct by her obstetrician to the College of Physicians and Surgeons.  The Inquiry Committee obtained and accepted an expert opinion that the Registrant had failed to meet the required standard of care based on her failure to recognize abnormalities in the fetal heart rate, and failing to take the appropriate steps that were called for in response. The Inquiry Committee did not, however, find conclusively the stillbirth could have been prevented if the correct standard had been followed. [12] The Inquiry Committee ultimately resolved the matter under s. 36(1) of the Health Professions Act with a term that the Registrant undertake remedial education for the purposes of minimizing the risk of recurrence. [15]

The Inquiry Committee reported the resolution to the registrant, setting out its view that the Registrant’s acts were good faith clinical judgments and not the result of negligence or a cavalier attitude in her practice or to her care of the Complainant [14]. The Complainant subsequently requested a review of the Inquiry Committee’s decision on the grounds the Committee’s reasons did not mention the discrepancies in the report on the resolution. [18]

The questions considered by the Review Board were whether the College’s investigation was adequate, and whether its resolution was reasonable. Ultimately, the Board answered both questions in the negative. With respect to the investigation, the Board criticized the Committee for making reference to evidence without commenting on the substance or utility of the evidence in the reasons provided. [37] In addition, the Board noted the reasons did not address the six points raised by the Complainant:

The Complainant raised six issues critical to the complaint. In establishing the design and parameters of its investigation, the College is not bound to adhere precisely to the issues as articulated by the complainant. However, if it chooses not to address the complainant’s issues directly, it should at the very least explain why it has chosen a different course, and provide a defensible rationale for the different course based on its professional assessment of what it sees as the critical issues arising from the substance of the complaint. In this case, it is at best unclear as to how the College pursued its investigation regarding the complainant’s questions. The process is certainly not transparent and thus, is difficult to uphold. [38]

The Board further criticized the Inquiry Committee for making references to further education pursued or to be pursued by the Registrant in the wake of the incident, without explaining how this would serve a remedial purpose. In particular, the Inquiry Committee’s reasons referenced a program taken in the past without mentioning whether the Registrant had taken it in the time since the incident, which meant that it was not clear that the program was undertaken as a remedial measure. Similarly, the Board found the Registrant’s desire to take a course not currently being offered in her area could not be considered a remedial measure. [53] The Board found that the reasons offered by the Inquiry Committee as “evidence of its fulfilment of its mandate to safeguard the public” were “unsatisfactory” [55], and in summary concluded that “[n]either the investigation nor the disposition fit comfortably with the principles of justification, transparency and intelligibility”. [58] Accordingly, the Board remitted the matter to the Inquiry Committee for reconsideration, with direction to provide more comprehensive information and more fulsome information in support of its ultimate decision. [62]

2010-HPA-0090(a) re: The College of Physicians and Surgeons of British Columbia