July 25, 2016

Letters of direction under B.C.’s Health Professions Act

Administrative Law
Professional Regulation

The B.C. Supreme Court recently upheld the power of an inquiry committee under B.C.’s Health Professions Act to issue a non-disciplinary letter of direction (or expectation) — one that a respondent could not seek review by a court — under HPA section 33(6)(b). Section 33(t6)(b) empowers each inquiry committee to take any action it considers appropriate to resolve a matter between a complainant and a registrant: Ridsdale v. Anderson, 2016 BCSC 942.

In the Risdale case, a nurse left her assignment in a care unit to attend a meeting provided for by her collective agreement. She gave the charge nurse and manager notice, but a program manager thought she left the unit without authorization, and issued a letter of discipline, which her union (BCNU) grieved. An arbitrator found no cause for discipline and ordered the letter removed from her file. The program manager later made, however, a complaint to her college (the CRNBC), alleging again that she left the unit without authorization, resulting in safety concerns.

The inquiry committee initially offered resolution under s. 33(6)(c), through (among other things) an undertaking that she not repeat the conduct relating to leaving clients without adequate notice for administrative meetings. The registrant declined this request. The inquiry committee then rescinded its request for an agreement, then issued a letter under s. 33(6)(b). It said that, “The Inquiry Committee has directed that the following expectations of Registrants be highlighted and reiterated to you,” including an expectation that when a registrant makes commitments for activities other than direct care, they should consider various questions, such as “1. […] have I provided the manager sufficient notice as outlined in my employer’s policies and have I received formal confirmation of approval from the manager/designate?”

Ordinarily a resolution under s. 33(6)(b) is subject to a complainant applying for review by the Health Professions Review Board (HPRB). In this case, the registrant sought judicial review by a court. But the court dismissed her application, on the basis the committee did not make or purport to make a final decision on whether she failed to meet professional standards. [57] The court noted that, “[58] … CRNBC does not consider that Ms. Ridsdale has ever been reprimanded. It does not consider the letter of March 3, 2015, to be a reprimand.” The disposition “[61] … did not impact Ms. Ridsdale’s ability or right to practise nursing.” It later concluded that the letter was not a reprimand. [80] Accordingly, the committee did not exercise a statutory power of decision, and its decision disposing of the complaint “is not amenable to judicial review”. [84]

NB: We caution that if the letter had been a reprimand in substance, rather than letter of direction, the outcome of the case would likely have been different.

Ridsdale v. Anderson, 2016 BCSC 942

Lisa C. Fong and Michael Ng