May 28, 2019

The inability of registrants to access “their” quality assurance documents under FIPPA

Administrative Law
Freedom of Information
Professional Regulation

Where a health professions college collects information about a registrant for “quality assurance” purposes, and the information includes feedback about the registrant’s performance from colleagues and patients, the information is not accessible by the registrant under freedom of information law. This lack of access was confirmed in a recent decision where a B.C. court quashed an order of the Information and Privacy Commissioner (“IPC”) that would have required the College of Physicians and Surgeons of British Columbia (the “College”) to disclose, to a registrant, information about the registrant collected under its Physician Practice Enhancement Program (“PEPP”): College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354.

The College established the PEPP program as part of its quality assurance mandate. The program solicits feedback on the performance of community-based physicians from each physician’s medical and non-medical colleagues and patients. All reviewers are assured their comments are anonymized and their colleagues or treating physicians will not know of their participation. The College submitted this anonymity is “vitally important to the integrity and the efficacy of the PEPP” to ensure frank and candid feedback. [14] Without a guarantee of anonymity, patients in relationships of “dependence and vulnerability” with their physicians will be hesitant to offer negative feedback. [15] Sections 26.2 of the Health Professions Act (“HPA”) also protect the confidentiality of information a quality assurance program gathers, despite the Freedom of Information and Protection of Privacy Act (FIPPA).

Notwithstanding these factors, the IPC decided the HPA only prohibited disclosure “beyond the circle of individuals who have a right to know” and served to protect the privacy of registrants. The IPC justified disclosure on the basis the claimant requested their own records, such that disclosure raised no privacy issues. The College applied for judicial review.

The court decided that the standard of review for a review of a decision by the IPC was reasonableness, where the IPC was interpreting a “statute closely connected with its function”. The HPA’s disclosure provisions were sufficiently connected to the IPC’s function. [71] The court applied jurisprudence deciding that the IPC was entitled to reasonableness review when interpreting confidentiality provisions in the Police Act.

The court went on, however, to find the IPC’s interpretation unreasonable.

More specifically, the court recognized that “as long as the decision of a tribunal is a reasonable interpretation, there is no basis on which a court can interfere when reviewing that decision on a reasonableness standard.” [75] But it went on to note that “an interpretation that is not rooted in the proper approach to statutory interpretation may be unreasonable”. [76] An interpretation may be absurd if it is incompatible with other provisions or with the object of the legislative enactment. [76] The College argued that the IPC’s interpretation of the HPA “is not reasonable when viewed through the lens of the Legislature’s clear intention”, as it defeated the purposes of the HPA and was at odds with the express confidentiality and assessment goals of the College’s quality assurance program. [87] Even though the actual words of HPA s. 26.2 were somewhat unclear, the legislative intent behind the provision was crystal clear. [89]

The court agreed with the College. The IPC did not pay sufficient attention to the scheme of the HPA, its object, or the intention of the legislature. [108] The legislature “clearly intended s. 26.2 to shield QAP records from disclosure to assessed registrants, and any reasonable interpretation of that provision must give adequate weight to that intention, as well as the confidentiality and public protection objectives of the QAP provisions and the HPA as a whole.” [108] The IPC gave “undue priority to the interests of the FIPPA applicant, which in my view must be secondary to the public interest in the HPA context”. [108]

Accordingly, while the court found the IPC entitled to reasonableness review in relation to statutory privacy provisions, the IPC’s interpretation was unreasonable, given a contextual and purposive interpretation of the provisions. The legislature intended that HPA ss. 26.2(1) and 26(6) protect the confidentiality of quality assurance records from all persons, including registrants, and not merely from persons outside the “circle of individuals who have a right to know.”

College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354

Lisa C. Fong and Michael Ng