July 14, 2011

The first judicial review of the HPRB: disclosure of past conduct history in the record

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

A court will defer to any finding of fact or law, or any exercise of discretion, by the Health Professions Review Board (the “HPRB”), unless the finding or decision is patently unreasonable, by operation of the HPRB’s privative clause under section 50.63 of the Health Professions Act, and section 58 of the Administrative Tribunals Act, S.B.C. 2004, chapter 45 (the “ATA”).

This high standard of review – higher than reasonableness – was recently confirmed by the B.C. Supreme Court in RM v. the College of Physicians and Surgeons of British Columbia, 2011 BCSC 832, the first decision on a judicial review of an HPRB decision.

In that case, which involved an HPRB review of a disposition concerning a 2009 complaint against a physician (the “Registrant”), the HPRB decided that letters which referred to the Registrant’s past complaint history should be disclosed to the complainant-applicant, over the objections of the Registrant and the College of Physicians and Surgeons of BC (“the College”).

The court noted HPRB’s Decision No. 2009-HPA-0027(a), where the HPRB stated “one of the purposes of the reforms [of the Health Professions Act] was to grant complainants a new statutory right to challenge certain health college complaint dispositions” and to “ensure that colleges and registrants did not insulate their actions from challenge by a complainant in a fair and independent process.” The HPRB reasoned that “the legislation made the complainant an active party to the review and that it would undermine the intent of the legislation and the ability of the complainant to be an active and meaningful participant if documents, generally speaking, were not made available to the complainant.” [26] The HPRB further decided that it would not use s.42 of the ATA to bar access to relevant information without “clearly definable justice considerations in a case that outweigh the justice requirement that a complainant should have a meaningful opportunity to exercise his or her statutory right of review by equal access to all relevant information….” [27]

In applying those principles, the HPRB found that while past conduct history was not relevant to whether particular conduct took place, it was relevant to what the inquiry committee might have done, had it been aware of the past conduct history. Further, the balance of the interests of the complainant and the registrant favoured disclosure; the complainant could not address the issue without the information, but if disclosed, the information only described past complaints generally, rather than in specific terms.

The registrant challenged the HPRB’s decision to require the complaint history disclosed, including advancing an argument that the HPA does not contemplate a complainant participating in the review process as a full-fledged litigant [43], but the court found the decision was not patently unreasonable. [48] The court did confirm, however, an HPRB exercise of discretion will be patently unreasonable if it is (a) exercised arbitrarily or in bad faith, (b) exercised for an improper purpose, (c) based entirely or predominantly on irrelevant factors, or (d) fails to take statutory requirements into account. [39]

The court went on to note that if a complainant-applicant were to breach the implied undertaking of confidentiality, “a party can seek relief by way of an application for injunctive relief… or an application by the tribunal to invoke the aid of a superior court”. [47]

The HPRB’s exclusive jurisdiction extends to “all those matters and questions of fact, law and discretion arising or required to be determined in a review or an investigation and disposition under this Part.” This jurisdiction includes the role of the complainant in the review process: “This type of question goes to the core of the Review Board’s home statue and is exclusively for the Review Board to determine. It cannot be disturbed on judicial review unless the determination is patently unreasonable.” [49]

Case comment – the need for ICs to consider past conduct history: In R.M., the College wrote to the registrant advising that due to the registrant’s complaint history of 16 complaints with 8 adjudicated valid and 3 adjudicated partially valid, the College would closely monitor the registrant’s future conduct. The registrant’s past conduct history was not, however, put before the inquiry committee.

Under section 39.2 of the HPA, an inquiry committee “may” consider any action previously taken under Part 3 respecting the registrant. The provision does not require an inquiry committee to consider past conduct history; it merely authorizes the committee to look at such history without worrying about any rule against similar fact evidence. In this case, the HPRB reasoned, however (according to the court) that while past conduct history was not relevant as to whether particular conduct took place “except in exceptional circumstances,” the information was nonetheless relevant “to what the inquiry committee might have done, in terms of outcome, had it been aware of the past conduct history and whether the inquiry committee would have pursued any other action under s. 33(6) in terms of remedy….”

While R.M. does not establish a complainant’s right to receive a registrant’s past conduct history if it has not already gone before the inquiry committee, the decision implies that an investigation may be inadequate, if a committee has not reviewed past actions, but a complainant can show the committee might have acted differently if that history had been before it. Accordingly, if any part of a record has or will refer to past actions, and therefore be disclosed to a complainant, the inquiry committee should also consider past actions in relation to a registrant, if only to prevent challenge to the adequacy of its decision-making.

RM v. the College of Physicians and Surgeons of British Columbia, 2011 BCSC 832