October 3, 2010

HPRB Summaries: Exclusion of information from the record

Administrative Law
Health Professions Review Board
Professional Regulation

A complainant under the Health Professions Act does not have access to ongoing investigation evidence. As an applicant for review, however, a complainant has a prima facie right to access the “record” in a matter. Under s. 42 of the Administrative Tribunals Act, the Review Board may receive evidence in confidence to the exclusion of a party, in order to “ensure the proper administration of justice.” The approach of the Health Professions Review Board to ensuring complainant access to registrant information was addressed in The Complainant and the College of Registered Nurses of B.C. and A Registered Nurse (December 22, 2009), HPRB Decision No. 2009-HPA-0027(a)).

In this review, a registrant and the College each applied to exclude two sets of communications from the record. One set involved confidential communications between the College and the registrant after the College received the complaint, including personal registrant information exempt from disclosure under FOIPPA. The second set involved settlement discussions under an alternate dispute resolution process where the College promised confidentiality. The Review Board declined to withhold the information from the complainant.

The Review Board explained that a complainant-applicant for a review is a full party, and should ordinarily have access to the full record, to advance the review. Any s. 42 application must show the Board why, to ensure the proper administration of justice, certain information should be excluded: “Unless that test is met, the ordinary rule applies – full and equal disclosure of all relevant evidence to all parties.” [21] Recent reforms to the Health Professions Act reflected legislative goals of promoting transparency and accountability by making complainants active parties in reviews. [30] Both the decision in Allen v. College of Dental Surgeons of B.C., [2007] B.C.J. No. 221 (C.A.) and the legislative goals expressed in reforming the HPA were found to shape how s. 42 of the ATA should be understood and applied. “Section 42 should only be used to bar access to relevant information where there are clearly definable justice considerations in a case that outweigh the justice requirement that a complainant should have a meaningful opportunity to exercise his or her statutory right of review by way of equal access to all relevant information.” [44]

Confidentiality would not warrant exclusion without the information also being of a sensitive nature. Further, information being exempted from disclosure under FOIPPA did not suffice to prevent disclosure under s. 42, as FOIPPA was not meant to limit information available to a party in a legal proceeding. The settlement process between the College and the registrant was not a private matter, but to be understood in the context of the College’s duty to protect the public interest. Any negotiated resolution had to accord with the College’s paramount obligation of protecting the public – a basis for consensual dispositions being subject to review by complainants on the record.

In dismissing the exclusion applications, the Review Board mentioned criteria for excluding information from disclosure to a party, such as the relevance of information being outweighed by its highly sensitive nature [78], the case of a complainant commencing a review for a colourable purpose [64], a complainant having no interest in the subject matter of the complaint [64], or information being clearly irrelevant to the review [78].

The Review Board emphasized that documents disclosed to parties “can only be lawfully used in this process” [83].

Editorial Note: The access a complainant may have to communications between college and registrant may not extend to confidential patient documents where, for example, the complainant differs from the patient relating to the complaint.

The Complainant and the College of Registered Nurses of B.C. and A Registered Nurse (December 22, 2009), HPRB Decision No. 2009-HPA-0027(a).