What is ‘adequate’ investigation of complaint? | Sara Blake
Tuesday, November 29, 2022 @ 1:26 PM | By Sara Blake
The patient applied for review by the Health Professions Review Board, which has statutory authority to review the adequacy of the investigation conducted with respect to the complaint and the reasonableness of the disposition of the complaint. The review board ordered the college to conduct further investigation because of the seriousness of the patient’s medical conditions and the consequences or potential consequences of those conditions.
The college applied for judicial review — the patient was self-represented. The B.C. Supreme Court quashed the order. The Court of Appeal granted the review board standing to appeal and reinstated part of its order for further investigation: The College of Physicians and Surgeons of British Columbia v. The Health Professions Review Board 2022 BCCA 10. The review board’s application for leave to appeal to the Supreme Court of Canada was dismissed on Nov. 24, 2022.
Adequacy of investigation
The B.C. Court of Appeal, sitting as a five-judge panel, overruled its decision in Moore v. College of Physicians and Surgeons of British Columbia 2014 BCCA 466, which had followed a decision of the Ontario Divisional Court in McKee v. Health Professions Appeal and Review Board  O.J. No. 4112.
In Moore, the court ruled that the review board should apply a reasonableness standard to determine what investigation is adequate. It recognized the wide variety of circumstances raised by patient complaints, including the nature and seriousness of the patient’s medical conditions and the extent of the doctor’s co-operation in the investigation of the complaint. The review board had applied Moore to find that this patient’s complaint was an “objectively serious” one that merited “an investigation at the more extensive end of the investigative spectrum”.
The Court of Appeal noted the “purposeful ambiguity” in the statutory use of the term “adequacy.” I would have characterized this term as intentionally general because a statutory ambiguity is a bad thing that leads to litigation. Legislative drafters rarely draft ambiguities. Rather, the legislature enacted a general term with the intention that the review board determine its meaning on a case-by-case basis. And, as the court noted, the legislative use of the term “reasonableness” in the same provision means that an assessment for “adequacy” means something else. A legislature enacts different words with the intention that they have different meanings.
The court ruled, first, that the decision as to what investigation would be undertaken was for the college to make and that the review board should not interfere just because it would have done the investigation differently had it been assigned that role. The question for the review board was whether the investigation that the college did was “adequate.”
Second, the Court of Appeal ruled that the review board’s focus must relate to the purposes of investigation, which it listed to include public accountability, to uncover the truth and to gather sufficient information to craft an effective remedy. It also noted that the scarcity of resources dictates a goal of obtaining necessary information without squandering resources. These are typical purposes of any investigation. I note that the court did not discuss the purposes of investigation in the context of broader principles relating to the public interests served by regulation of the medical profession and the purposes of allowing the profession to regulate its members, rather than establishing an independent regulator.
The court ruled that the review board should first identify the goals of a particular investigation and then assess whether the investigative efforts were commensurate with those goals. What does this mean? It is necessary to review the court’s analysis of the investigation of this patient’s complaint to understand it.
The court ruled that the review board erred in focusing on the seriousness of the patient’s medical condition and its potential consequences. It should, instead, have focused on whether and to what extent the doctor’s care of the patient fell below acceptable standards. Thus, the proper question was whether the college’s investigation was adequate to find the facts as to what the doctor did in diagnosing and treating the patient’s medical conditions and to determine the applicable standards of care.
This requires a review of the sufficiency of the facts disclosed in the complaint, the doctor’s response and the medical records, and to ask whether witness interviews would be necessary to address deficiencies in the evidence. The court overturned the review board’s order to interview medical specialists seen by the patient because the facts were adequately disclosed in their medical records. Similarly, the adequacy of the doctor’s record keeping of prescriptions and his recommended “complementary therapies” were documented requiring no further investigation. The court ruled it was not necessary to interview a friend who had had discussions with the doctor on the patient’s behalf because those discussions were documented; nor to interview the patient’s acquaintances who could speak about his medical conditions. However, as the credibility of the patient and his doctor as to their discussions regarding treatments were in issue, the court upheld the order to interview the patient’s wife who had attended many of his medical appointments. It also upheld the order to interview a forensic psychiatrist whose report to the criminal court said the patient should have been given a “clinically proven treatment” without identifying what that was.
To summarize my understanding of the ruling, gleaned from what the court did, rather than the test it articulated, the goal of the investigation is to determine what the doctor did when diagnosing and treating the patient’s medical condition and whether the applicable standards of care were met. The investigation is “adequate” if it gathers sufficient evidence to obtain the facts relevant to these issues. To the extent that the key facts are documented, there is no need to interview witnesses unless there are key factual gaps or issues of credibility between the doctor and the patient.
Stacking of statutory review standards of reasonableness
In obiter, the court discussed the “unwieldy and unnecessary” statutory stacking of reasonableness standards of review. The Health Professions Act empowers the review board to review the “reasonableness” of the college’s disposition of a complaint. This standard requires deference to the college’s decision. The Administrative Tribunals Act prescribes a “patently unreasonable” standard of judicial review, adding a stronger layer of deference by the court to the decision of the review board as to the reasonableness of the disposition.
The court noted the obvious — that it would be patently unreasonable for the review board to give no deference to the college’s disposition. Aside from that unlikely circumstance, the court chose not to try to untangle the statutory stack of reasonableness, ruling that to apply a patently unreasonableness standard to a reasonableness standard would be an “empty mechanical exercise.” Instead, the court ruled that a shortcut should be taken. It authorized courts to explicitly ignore the patently unreasonable judicial standard of review and, instead, to analyze directly the reasonableness of the college’s disposition, even though that is the job of the review board. The court has no authority to disregard a statutory requirement.
The court then said that the reasonableness standard is intended to yield a single, predictable result. Under the Health Professions Act, the deference is to be accorded to the college. The court said, “The Review Board, in characterizing the College’s decision as unreasonable (or as reasonable), will either have reached the one acceptable outcome, or it will have reached a characterization that is patently unreasonable.”
On my read, the court applies a correctness standard, though it denies it. Its approach evades the statutory direction to apply a patently unreasonable standard and to give deference to the review board. It fails to conduct a proper analysis of the review board’s statutory mandate, a significant part of which is to review the disposition of complaints by health profession regulators. It is an independent supervisor of self-regulation by the professions. The review board likely has more experience in the subject than does the court.
There is no reason why the court could not apply the Vavilov approach to the review board’s reasons for finding the disposition to be reasonable (or unreasonable), with a bit more deference to reflect the higher statutory standard requiring that the unreasonableness be patent (Canada (Minister of Citizenship and Immigration) v. Vavilov  S.C.J. No. 65). The Vavilov approach respects the statutory mandate, institutional context and demonstrated experience and expertise of the review board while requiring that its decisions be justified, intelligible and transparent to affected persons. Does the review board decision contain an error of logic, a fundamental misapprehension of the evidence or a failure to meaningfully consider a central issue raised by the parties? The court’s analysis of the review board’s decision does identify a misapprehension of one part of the evidence. There was no reason for the court to say the statutory standard of judicial review could not, and therefore, need not be applied.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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