January 4, 2012

Professional regulators and human rights duties to the general public

Administrative Law
Human Rights
Professional Regulation

As shown in our recent series on human rights and regulators, human rights tribunals have jurisdiction to consider whether the acts and policies of professional regulatory bodies may be discriminatory in their effects. However, as with any human rights complaint, a person who seeks to bring a complaint against a regulator must meet the criteria set out in the applicable Code in order to have a reasonable prospect of success. Specifically, a complainant must show that they have been discriminated against, and that the discrimination occurred in the context of one of the relationships covered by the Code; for example, in the provision of a service normally available to the public. This raises the question of whether such a relationship exists between regulators and the members of the public in whose interests they act.

In British Columbia, registrants and applicants for registration in occupational associations are specifically protected by s.14 of the BC Human Rights Code (click here), but this provision does not extend to the general public.

In a recent decision, the Ontario Human Rights Tribunal considered a complaint brought by the spouse of a cancer patient, who claimed that the College of Physicians and Surgeons of Ontario had discriminated against his wife by denying her access to pain-alleviating medication: Fucile v. College of Physicians of Ontario, 2011 HRTO 2008. The physician responsible for the patient’s treatment had required her to undergo a drug test before agreeing to provide her with a prescription for opioids, in keeping with the College’s general policy, and as specifically required by an undertaking that the registrant had given to the College following an investigation of his practice. As a result of the drug testing, the registrant refused to prescribe any additional drugs. The complainant alleged that his wife had since been forced to rely on alternative pain management treatments, none of which had been fully effective. [6]

The complainant argued that the College’s policy was discriminatory in its effect on his wife, who was being treated unfairly despite having done nothing wrong. [6] However, the Tribunal observed that it “lacks the authority to provide remedies for unfair treatment generally and does not have the general power to decide whether the respondent treated the applicant fairly and appropriately.” [14] The Tribunal found that the complainant had not provided particulars as to how the College’s policy treated his wife differently from other patients. In fact, Tribunal found that the College’s policy is in keeping with a national protocol on opioid use, which applies to all citizens equally, and is intended to protect the health and well-being of Canadians. For this reason, the facts alleged by the complainant did not amount to discrimination per se. [11]

In addition, the College had argued that, while the patient may have received a “service” from her own physician, there was no nexus as between the complainant and the respondent that would trigger the Code. Specifically, the College noted that it is not involved in patient care, that it had not prevented the patient from seeking a second opinion, and that it had not acted in bad faith. [8] The Tribunal agreed with the College’s submission, and found the College was not in a “service” relationship with the complainant’s wife. [12]

For all of the above, reasons, the Tribunal dismissed the Complaint as having no reasonable prospect of success. [15]

Fucile v. The College of Physicians and Surgeons of Ontario, 2011 HRTO 2008