May 24, 2016

Inquiry Committees and Inadequate Investigations

Health Professions Review Board
Inquiry and Investigations
Professional Regulation

In the recent case of College of Chiropractors of British Columbia v. Health Professions Review Board, 2016 BCSC 391, the B.C. Supreme Court addressed the duties of an inquiry committee under the Health Professions Act, when a complainant asserts injury caused by alleged negligence, but the committee dismisses the complaint based on the treatment having been appropriate, regardless of evidence from other health professionals bearing on whether the treatment caused the injury.

Background: A complainant obtained treatment on her hip and ankle from a chiropractor whose treatment she asserted caused her injury. She alleged “negligence” by the registrant. During the Inquiry Committee’s investigation, the complainant offered documentation from other health care practitioners whom she has consulted after her asserted injury. The investigating committee member (who was also a registrant) declined her offer, advised the Inquiry Committee of the offer, and recommended that the complaint be dismissed. The investigating committee member opined that while the complainant may have suffered ill effects from the treatment, that was a civil matter. The committee decided to take no further action. The complainant applied to the HPRB for review of the decision.

The HPRB concluded the investigation was inadequate, on the basis the Inquiry Committee failed to consider if the registrant provided an appropriate treatment technique, failed to assess the competency of the registrant, and did not review information available from other health care professionals who cared for the complainant’s asserted injury. The HPRB disagreed with the investigator’s statement that the case was a civil matter, and said the Inquiry Committee was responsible for obtaining evidence from relevant collateral sources.

The HPRB as a party on judicial review: On judicial review, the registrant and the complainant were not in attendance, but the Review Board  sought to be heard on the Court’s role in a judicial review in cases under Health Professions Act. The Court heard from the Review Board, to ensure it fully appreciated statutory roles and the standards of review engaged. A review of the case itself indicates, however, that the Review Board addressed the merits of its own decision, which is unusual on judicial review.

Issue 1: The appropriateness of treatment. The College argued that the HPRB ignored the Inquiry Committee’s disposition, which specifically set out that it considered the registrant’s treatment of the complainant’s hip and ankle and found it justifiable.  In response, the Review Board acknowledged the finding of the Inquiry Committee that the treatment was appropriate and within scope, but argued that this was not adequate, as the Committee did not investigate the specific treatment technique.

Issue 2: The irrelevance of evidence about what caused the complainant’s injury. The College also argued that information available from other health care professionals was irrelevant to the inquiry committee assessing the appropriateness of the treatment. The Review Board argued that relevant collateral sources of information should be investigated, and the fact of injury or its causation may be relevant to substandard practice and the accuracy of registrant’s version of events.

A finding that the HPRB’s decision was patently unreasonable: The Court set aside the HPRB’s decision. The Court found that the HPRB’s review decision patently unreasonable (which is the standard set by the Administrative Tribunal’s Act) for various reasons. These reasons included the fact that the Inquiry Committee did consider the appropriateness of the treatment  [91]; that documentation from other health care professionals post-injury is not relevant as it would not assist the Committee in assessing the appropriateness of the treatment [95-96]; and that the comment about the injury being a civil matter was simply one comment plucked out of committee’s internal discussions and wrongly transformed into the raison d’etre for the Inquiry Committee dismissing the complaint. [98]

For regulators under the Health Professions Act, the Court helpfully confirms that inquiry committees (in making final dispositions) may critically evaluate conflicting evidence but that is not the same as determining matters of credibility [93]; and that the HPRB owes deference to the inquiry committee, and must conduct reviews of inquiry committee matters on a standard of reasonableness [98].

College of Chiropractors of British Columbia v. Health Professions Review Board, 2016 BCSC 391

Lisa C. Fong and Michael Ng