April 23, 2012

Inquiry and Discipline: Employer (or employee) conduct vs. unprofessional conduct under the HPA

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

Health professionals who engage in arguments in their capacity as employers, or as former employers – which arguments may include profanity and the throwing if tissue boxes – are likely to fall short of “unprofessional conduct” as that term is used in the BC Health Professions Act. This was the principle underlying the decision of the Health Professions Review Board (HPRB) in The Complainant v. The College of Physicians and Surgeons of BC, 2011-HPA-0035(a) (November 22, 2011).

This case involved a complainant who had been dismissed from her position as a medical office assistant in a registrant’s office. When she confronted the registrant about his allegedly speaking poorly to patients about her performance, he allegedly used profanity, threw a box of tissues at her, and punched the counter with his fist. The registrant’s wife then allegedly told the complainant to leave, used profanity and abusive language, and pushed the complainant, causing her to trip. The registrant’s accountant withheld the complainant’s final paycheque and record of employment, which she later acquired through the Employment Services Standards office.

The College agreed with the registrant, who submitted that the College did not have jurisdiction to hear the complaint except in the clearest and most serious of cases, and that the alleged events, even if true, were not sufficiently clear and serious enough to constitute professional misconduct. The HPRB summarily dismissed the complainant’s application for review on two grounds:

  • First, the conduct was said not to have occurred in the course of practice, and while conduct might be unprofessional conduct if egregious enough, the conduct alleged here was not “egregious enough to constitute professional misconduct or unprofessional conduct within the meaning of the Act.” [13-14]
  • Secondly, due to the interaction relating to the employer-employee relationship, the HPRB agreed that “there were other forums for such disputes which is in accord with other decisions of the Review Board in a generic sense….” [15]

The HPRB took note of Li v. College of Physicians of Pharmacists of BC, [1994] B.C.J. No. 1830, 116 D.L.R. (4th) 606 (B.C.C.A.), where the short temper, intemperate language, and rude and condescending behaviour of a pharmacist was found to be a matter to be regulated by business considerations, and not the College.

This result, while unsurprising, may be contrasted with the approach of the former College of Teachers, for example, which has, historically, cast a wide net to regulate all forms of teacher conduct, including conduct by members in their capacities as administrators or employees.

The Complainant v. The College of Physicians and Surgeons of BC, 2011-HPA-0035(a) (November 22, 2011)

(Link here)