December 2, 2010

Limiting access to “the record” of HPRB complainant-applicants

Administrative Law
Health Professions Review Board
Professional Regulation

Complainants under the Health Professions Act are not parties at the inquiry committee stage, but acquire party status upon seeking a review before the Health Professions Review Board. A complainant may not, however, be the patient receiving the services subject to complaint. Significant confidentiality concerns can therefore arise where, for example, the complainant is adverse in interest to the patient whose health records came before the inquiry committee addressing the complaint, and consequently before the HPRB.

Such a scenario arose in Complainant v. The College of Psychologists of British Columbia, HPRB Decision No. 2010-HPA-0016(a) (December 30, 2010), where the applicant for review had filed a complaint with the College of Psychologists, alleging misconduct by a psychologist who had assessed the complainant’s adult child, and included in her report patient comments about the complainant which the complainant said were patently false. Upon the complainant applying for review, which would normally lead to the entire record being disclosed to the complainant, both the College and the member applied for the complainant’s access restricted under s.42 of the Administrative Tribunals Act, S.B.C. 2004, c. 45.

The HPRB decided the complainant’s interest in disclosure were outweighed by the adverse consequences of full disclosure on the administration of justice, where the complainant was not the patient, did not represent the patient, did not have the patient’s consent to see the patient’s medical records, and only saw the assessment report because it had been left in a drawer. The panel noted the patient’s confidentiality interest was entitled to great weight where the patient had not given consent, and had entrusted her personal information to a professional for medical purposes. The complainant did not, by seeing the original report, acquire a greater right to see related clinical records, and she could still advance her case based on what she had seen and recorded. The balance of the record to be disclosed would provide her opportunity to challenge the investigation process, and the reasonableness of the inquiry committee’s decision.

Lisa C. Fong represented the College in this matter.

The College of Psychologists of British Columbia, HPRB Decision No. 2010-HPA-0016(a) (December 30, 2010)