February 4, 2011

HPRB Month Part 1: The meaning of “adequacy” in complaint investigations

Administrative Law
Health Professions Review Board
Professional Regulation

As the Health Professions Review Board has jurisdiction to review the adequacy of investigations by Colleges under the Health Professions Act, Colleges can take some guidance from the following propositions which establish the meaning of “adequacy” applied by the Ontario Health Professions Appeal and Review Board:

  • A review board’s task is to examine an investigation and the information put before a committee, to consider if the committee had sufficient and relevant information to consider the complaint.
  • An adequate investigation need not be exhaustive by obtaining all available information, or extensive. Its extent will vary depending upon the nature of the allegations.
  • An adequate investigation need not be conducted to the preferences of the parties involved.
  • For an investigation to be adequate, the investigation must provide sufficient relevant information to the committee – whether that information be contained records, reports, documents, or the knowledge of witnesses – on which the committee can ground a reasonable decision, or in other words, reasonably assess the complaint and any other related issues raised by the complaint.
  • An investigation will be adequate if there is no indication of further information that might reasonably be expected to have affected the decision, should the Committee have acquired it.
  • Conversely, if information clearly might have been obtained which, if secured, might have changed the outcome of the committee’s decision, the investigation will not be adequate.
  • A committee may not need to interview a witness if that person would not likely have any additional  information which would assist the Committee, e.g., information likely to change the outcome of the decision.
  • Adequacy may require that a complainant be given an opportunity to reply to the responses of a respondent.
  • Adequacy may require information about other investigations into the conduct of the registrant, apart from any statutory requirements entitling the committee to such information.

Accordingly, an investigation has been found to be inadequate where, for example,

  • The investigation fails to investigate all misconduct issues (e.g., where an investigation is adequate concerning two issues, but inadequate respecting two other issues, as in A.C.H.H., M.D. v. J.N., D.C., HPARB File # 8804 (April 7, 2009));
  • The investigation fails to gather all relevant evidence concerning an essential issue (e.g., informed consent, as in K.P. v. D.R., DDS, HPARB File # 9070 (January 17, 2008));
  • The investigation fails to involve a review of all relevant documents (e.g., a complainant’s complete medical charts, as in V.J. v. College of Physicians and Surgeons of Ontario, HPARB File # 07-CRV-0391 (January 27, 2009)); or
  • The investigation fails to look into the veracity of a respondent’s factual assertions made in response to a complaint (e.g., of discriminatory conduct against refugees, as in L.B. v. V.G. R.Ph., HPARB File # 09-CRV-0070 (January 25, 2010)).