September 7, 2015

Specific discipline hearing issues: multiple complaints, hearings in private, and use of “similar fact” evidence under the Health Professions Act

Administrative Law
Inquiry and Investigations
Professional Regulation

In British Columbia, colleges under BC’s Health Professions Act are increasingly publishing full reasons from discipline hearings. These decisions allow all of the regulators under the HPA to more efficiently address hearing issues, by looking to what other committees decide. Starting this month, we examine some recent decisions in detail, to highlight how some panels have grappled with common hearing issues.

This month, we look at decisions (here) published in June 2015 by the College of Massage Therapists of British Columbia, about a registrant whom the panel decided sexually touched or viewed four female patients.

The panel’s three decisions – two pre-hearing and one on verdict – address a number of difficult issues, including the following four issues:

  • the propriety of the hearing panel looking into several complaints at the same time (the “consolidated hearings” issue);
  • the panel’s power to hold part of the hearing in private, at the request of a complainant (the “public hearings” issue);
  • the panel’s use of evidence in one complaint as evidence in other complaints (the “similar fact evidence” issue); and
  • special considerations when assessing the credibility of complainants who assert sexual misconduct (the “complainant credibility” issue).

1. Consolidated hearings: The College’s bylaws required that the College’s inquiry committee issue separate citations for four complaints. Only the discipline committee had a power to direct that matters be heard together. When the College applied to have three citations consolidated, the respondent objected on the basis of prejudice. The panel heard arguments about “consolidation” in writing. It issued one decision to consolidate three citations, and another decision to add a fourth, later citation [PDF 113 and PDF 135], based on several factors:

  • Similar subject matter: the similar types of sexual misconduct alleged [PDF 123-124];
  • Efficiencies: the efficiencies arising from one hearing instead of separate hearings, especially if the evidence of each complainant is be admissible as “similar fact” evidence in the other complaint matters [PDF 125]; and
  • Absence of prejudice: the absence of any prejudice to the respondent [PDF 126], since the panel could still act appropriately and consider each complaint separately, despite a single hearing, should it decide against treating the evidence of each complainant as “similar fact” evidence [PDF 124].

2. Public hearings: Based on “requests” from two complainants, who asserted sexual misconduct by the respondent, the College asked that their portions of the hearing be heard in private, meaning exclusion of the public. The respondent objected at length. The Panel ordered that the evidence of the two complainants be heard in private, but also that transcripts of the closed portion of the hearing be available to the public, at the expense of the person wishing to purchase such transcripts, and with information that could identify the complainants redacted [PDF 144]. The panel addressed a number of issues raised by the respondent:

  • The authenticity of requests: The respondent challenged the authenticity of the “requests”, based on one request being an unsigned email, and alleged manufacture by the College. The panel ordered that the College confirm with the complainant during her testimony that she had requested a hearing in private via e-mail [PDF 145; also PDF 11].
  • Procedural rights relating to requests: As two complainants asserted a desire to avoid harm from them being publicly-identified as victims of sexual misconduct, and the harms were based on the alleged misconduct, the respondent asserted a right to cross-examine the complainants as part of the hearing-in-private issue. The panel rejected cross-examination for a “request” under the HPA, as a request did not require supporting evidence, and allowing a public cross-examination of a witness to decide a request for a hearing in private would defeat the intention of the legislature [PDF 146; also PDF 10-11].
  • The public interest in open discipline hearings: The panel accepted that principles of “open court” had to be adapted to address the privacy interests of complainants as recognized by the statute [PDF 146-147]. In extensive supplementary reasons, the panel accepted that the committee lacked means to protect witnesses except by private hearing [PDF 15]. The panel minimized the impact on the public interest by allowing the public to access the hearing through redacted transcripts.
  • The impact of privacy on procedural fairness: The panel rejected the respondent’s assertion that a hearing in private was contrary to the respondent’s right to procedural fairness [PDF 148; also PDF 15-16].

3. Similar fact evidence: As the citation involved four sets of incidents, all involving alleged sexual misconduct, the panel had to consider if it could use the evidence of one complainant to decide other three complaint matters. Similarity of alleged acts may demonstrate a pattern of conduct or behaviour unlikely the result of coincidence or accident. Evidence of similar events by different witnesses may prove each event occurred, and may disprove accident [PDF 63-68]. The panel considered a number of related issues.

  • Rules of evidence do not bind the discipline committee: The panel accepted that in BC, the rules of evidence of court proceedings do not bind tribunals, and the panel may consider any evidence it deems relevant without any “presumptive inadmissibility” of some categories of evidence (e.g., about character); but the panel also acknowledged its obligation to consider carefully the relevance, reliability and probative value of any evidence before it [PDF 60-61].
  • When to address similar fact evidence: As each of the four complainants was to testify about her own complaint matter, the Panel did not have to decide, during the evidential stage of the hearing, if the testimony of any one of them should be admitted as “similar fact evidence” for other complaint matters, as each complainant was clearly allowed to testify about her own complaint matter. The panel could therefore wait until final argument to hear about similar fact evidence, and if it could use the testimony of each complainant in the other three complaint matters.
  • When alleged misconduct is similar: The panel assessed, at an early stage, how the many allegations of sexual touching or viewing were similar. It looked to the specific nature of the alleged acts (e.g., touching patients’ anal and genital areas, or lifting draping sheets to look at their breasts while they turned from a face-down to face-up position), but also more generally at the sexual nature of the alleged misconduct, and at similarities of context, e.g., during treatment [PDF 123-124]. The panel noted authority that in cases of sexual assault, the similarities between the sexual acts are relevant, but often not as compelling as the circumstances surrounding the incidents (PDF 67). Although the panel ultimately made most findings without resorting to similar fact evidence, it did resort to similar fact evidence to decide that one event occurred [PDF 110].
  • When a respondent must “commit” to asserting collusion between witnesses: Prior to the hearing, the respondent alleged “collusion” between complainants, a “defence” which is – if proven – a basis for the panel to not accept evidence as similar fact evidence in other matters. However, the College’s response would have required that it spend several hearing days calling witnesses to talk about the investigation – evidence to which the respondent objected as irrelevant. The Panel resolved uncertainty about the College having to address collusion, through witnesses, by directing that the College first call the complainants as witnesses, and by directing that the respondent give notice, after cross-examining the complainants, if he would be advancing the defence of collusion [PDF 17-20]. The respondent’s decision not to pursue collusion, which allowed the College to forego calling its investigators as witnesses.

4. Complainant credibility in cases of sexual misconduct: The panel also accepted that certain factors may be especially relevant when assessing the credibility of complainants who allege inappropriate touching or sexual misconduct:

  • First, that an initial reaction to perceived improper sexual touching may be, and is likely to be, confusion or shock.
  • Second, that a female patient not objecting immediately should not be considered unusual.
  • Third, patients may try to convince themselves they have misinterpreted a professional’s conduct, or return.
  • Fourth, evidence of sexual misconduct may involve perceptions based on senses other than vision [PDF 69-70].

As of this writing, issues of penalty remain to be decided, and the respondent has a right to bring an appeal under HPA s. 40(1).

College of Massage Therapists of British Columbia v. Martin, 2015 CMTBC 01 (June 26, 2015) (click  here).

Lisa C. Fong and Michael Ng