May 28, 2019

The discretion of colleges to decide when to consider (or ignore) past disciplinary action

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

Colleges under the Health Professions Act “may” consider any past action previously taken by the College respecting a registrant. This means in substance that the College “may” consider a registrant’s past misconduct or incompetence for purposes of deciding (on a provisional basis) if acts or omissions alleged by a complainant occurred at all, or for purposes of deciding on suitable outcomes. Colleges may, however, also decline to consider past action, if for example a registrant’s past misconduct is too dissimilar to a current complaint matter. Indeed, whether a decision-making should consider or ignore past conduct is the purpose of several court evidentiary rules, such as the “rule” against admitting bad character evidence, and an “exception” to that exclusionary rule for “similar fact” evidence. The Supreme Court of BC recently upheld an exercise of discretion by a college – the College of Physicians and Surgeons of BC (the ”College”) – to decline to consider a registrant’s past ethical misconduct, based on its dissimilarity to a current clinical complaint matter, in College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, 2019 BCSC 539 (“Feldman”).

In the Feldman case, a patient’s family complained about a physician who did not physically examine a nursing home patient who ordinarily suffered from tremors, and was later admitted to hospital from a further illness. The college was critical of some aspects of the physician’s conduct, but did not consider his previous one-year suspension for having an intimate relationship with a patient. On a review by the Review Board, the complainant raised the physician’s previous discipline. The public notice of that discipline included a statement that the physician’s future conduct “is required to be above reproach in every respect….”

The Review Board decided that the college acted unreasonably in failing to consider the registrant’s previous suspension. The court decided, however, that the Review Board patently and unreasonably erred by failing to afford deference to the College.

First, the court confirmed that the Review Board’s function is to “determine if the College acted reasonably in conducting its investigation and in rendering reasons”. [59] The Review Board’s deference extends to how the College “characterizes an allegation” [61] and to the College’s exercise of discretion in relation to the scope of a complaint investigation. [61]

Second, the court confirmed the Review Board “should grant deference to the College in relation to questions of fact, discretion, or policy; in relation to questions of mixed fact and law; and in relation to questions where the College is interpreting its home statute, in this case the HPA.” [58]

Third, the Review Board substituted its own view, [79] such that if failed to conduct a reasonableness analysis. [81]

Fourth, the court found that the College had discretion under HPA s. 39.2(1) to consider past actions. [57] In particular, the College had discretion “to make a finding on the degree of similarity, if any, between [the registrant’s] sexual misconduct in 2003 and clinical conduct matters in 2015”. [78] The court agreed with the College’s assessment that “the two [matters of sexual misconduct and the clinical issue[ are not similar in time, type of conduct, context, or the standards breached.” [78]

College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, 2019 BCSC 539 (“Feldman”)

Lisa C. Fong and Michael Ng