January 13, 2014

Investigative scope and HPRB deference

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

In the first significant judicial review of a decision of the BC Health Professions Review Board (the “HPRB”), the BC Supreme Court found that a registrar investigating a complaint and exercising a summary dismissal power under s. 32(3) of the Health Professions Act (the “Act”) was entitled to deference as to adequacy of the investigation in Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081.

We note that a notice of appeal for this decision has been filed.

Background: We examined HPRB Decision No. 2010-HPA-0108(b) here.

In brief, a federal prisoner complained that a physician ended his prescription for a drug without medical reason, and instead pursuant to a policy directive of Correctional Services Canada. On May 19, 2010, the Registrar wrote to the Complainant and advised that after reviewing the complaint, the College had no specific criticism of the physician. [9-10]

The HPRB decision: On review, the HPRB concluded that the investigation conducted by the Registrar was inadequate “both substantively and on jurisdictional grounds and that the decision was beyond the jurisdiction of the Registrar”. [22] The HPRB remitted the matter to the College and directed the Registrar to reconsider the matter and to interview Dr. Moore to ask certain specified questions, including how Dr. Moore would explain the complainant’s differing interpretation of an event. [1] The HPRB identified a credibility issue between the complainant and the physician that should have been explored in more detail. [83]

Subsequent HPRB decisions affecting the Registrar’s jurisdiction: On the Registrar’s finding of no specific criticism of the physician, the HPRB decided the Registrar did not have authority to dismiss a complaint on that basis, and only the Inquiry Committee could make a determination that a registrant’s conduct or competence was satisfactory. [99-100] However, a five-member panel of the HPRB decided later, in another matter, that a registrar could dismiss a complaint based on the conduct or competence of a registrant being satisfactory [101]; see Decision No. 2011-HPA-0018(a) at para. 71 (see more about that here).

The court’s judicial review decision:

Adequacy of investigation under different provisions of the HPA. The court noted the division of labour under the HPA between a registrar’s power to investigate and resolve non-serious matters under s. 32(3), and the inquiry committee’s power and duty to investigate (other) matters under s. 33(1). [41-43 and 115] The court later noted that the college “does not have unlimited resources available to process complaints,” [119] and that “not every complaint warrants a full investigation” [117].

In that context, the court reasoned that the adequacy of an investigation “must be considered relative to the matter being investigated. What might be inadequate in one case might be adequate in another.” [105]

The court also noted that while the complaint was cast as a violation of medical ethics, and in that context was a serious matter worthy of serious investigation, it also amounted (if the allegations were true) to “a physician substituting one medication for another because he knew it was not available to the complainant within the prison”, and could easily be cast as “a practical decision of the kind physicians make on a frequent basis where a particular medication or procedure is not available through the funding model available to the patient”. [107]

Deference due to the registrar’s decision about the scope of investigation. The court found that the HPRB failed to take into account the Registrar’s role under s. 32(3) of the HPA. [113] The Registrar was a specialized tribunal entitled to deference. [114] Accordingly the Board “must defer to the College in cases where the investigation, given the context of the complaint and the disposition of the College fall within a range of outcomes that are reasonable and rational”. [121] The HPRB must intervene only “where there is either no investigation or only a cursory investigation that is inconsistent with the nature of the complaint, or where even though there has been a proper, full investigation the disposition of the College is unreasonable”. [121]

Notably, the court quoted from an Ontario court decision, about an HPARB conclusion that an investigation had been inadequate, where the Ontario court stated, “[34] The question as to the adequacy of investigation that was properly before the Board was whether the investigation undertaken was reasonable in the circumstances.” [52] (quoting from McKee v. Health Professions Appeal and Review Board, [2009] O.J. No. 4112 (Ont. S.C.J.), italics added)

Finally, the Court noted that the Registrar did not need to resolve conflicts between Dr. Moore’s version of events and the Complainant’s version. [123] The court noted that, “The nature of the complaint process will frequently result in conflicting versions of events and not all of them can be fully investigated and resolved.” [120]

Although the court could have concluded that the HPRB was merely incorrect about the adequacy of an investigation relating to a complaint that did not involve a serious matter, the court seems clear in requiring deference by the HPRB in relation to both the scope and the outcome of a registrar’s investigation.

Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081, addressing HPRB Decision No. 2010-HPA-0108(b)

NB: Notably the HPRB filed a Notice of Appeal with the BC Court of Appeal on December 12, 2013 (File No. CA41430).