Complainant v. The College of Physicians and Surgeons of British Columbia

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of British Columbia DECISION NO HPA-016(b); 2016-HPA-017(b) (GROUP FILE: 2016-HPA-G02) December 6, 2016 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT 1 A Physician REGISTRANT 2 BEFORE: L. McDowell, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on September 7, 2016 APPEARING: For the Complainant: Self-represented I INTRODUCTION [1] This complaint under the Health Professions Act (the HPA ) concerns two separate interactions with two different physicians. Registrant 1 was a psychiatrist who cared for the Complainant during an involuntary hospitalization under the Mental Health Act in The Complainant has alleged that Registrant 1 incorrectly diagnosed her with a psychiatric disorder and identified her as a drug addict resulting in the loss of her quality of life. She further complained that Registrant 1 refused to see her again once she left the hospital. Registrant 2 is an orthopaedic surgeon whom the Complainant consulted for surgery in The Complainant alleged that the Registrant insulted her looks and mistreated her. [2] The Inquiry Committee of the College investigated and ultimately dismissed the complaints finding no basis for criticizing the care of the two Registrants. The Complainant has now asked the Review Board to review this disposition. In an initial application to the Review Board she stated:

2 Because of the mistakes made by the medical profession I have lost my house, my health and quality of life as a disabled person [3] By way of relief the Complainant has asked for the Review Board to direct the Inquiry Committee to direct the registrar of the College to issue citations against the Registrants, request that the Registrants undertake not to repeat the conduct, undertake to take educational courses, consent to a reprimand, and to undertake or consent to other specified action. II THE ROLE OF THE REVIEW BOARD - STAGE 1 HEARING [4] The Review Board was set up in order to allow individuals to apply to a body which is independent of the health colleges that regulate the various health professions. The Review Board has a limited jurisdiction. It may review only two matters; namely, the adequacy of the investigation into the complaint and the reasonableness of the Inquiry Committee disposition. [5] This complaint has been referred to a Stage 1 hearing. At this stage two outcomes are possible; the disposition of the Inquiry Committee may be confirmed if the application for review can be fairly and properly and finally adjudicated without the need for submissions from the College or the Registrants, or it may be determined that the matter requires adjudication in a Stage 2 hearing. If this is the determination no decision will be made until submissions have been requested from the College and the Registrants and further reply submissions may be made by the Complainant. [6] I have decided to proceed by way of a Stage 1 hearing. Accordingly this review is based solely on the record of the investigation provided by the College (the Record ) and the submissions of the Complainant. III BACKGROUND [7] The Complainant became ill with a virus in March 2009, and after being unable to sleep for an extended period eventually attended at her regional hospital for relief. There is some dispute over her behaviour while at the emergency department but she agreed that she did smoke marijuana in the quiet room of the hospital. She was asked to leave and return when she was not impaired. She admits that she said that she was going to kill herself and cause injury to the premier and later the prime minister, but she was delirious and sleep deprived and the comments were taken out of context. In her complaint she stated: I tossed and turned until the sun came up and then decided to call 811 (the nurses help line) back to complain. I called the nurses help line with now 8 days with no sleep, my speech and lack of lucidity were very disoriented. I said on the phone that I was going to kill myself if I did not get any sleep. I was taken out of context, and labeled suicidal when I was speaking figuratively, not literally. When I mentioned about the clinic in (a nearby town) being closed, I was so braindead that I said Im going to kill Gordon Campbell for killing healthcare in BC, now I am homicidal and suicidal. I really feel that the nurses in (the hospital) failed pathology 101, as I could not control or sensor what was coming out of my mouth. I was really taken out of context. 811 decided that I

3 needed to go to the psych ward, and the RCMP were called to my house because I am a supposed threat to national security now. [8] Once the Complainant arrived at the hospital this second time, Registrant 1 was contacted by the emergency department physician. She examined the Complainant and admitted her to the psychiatric ward under the Mental Health Act. Registrant 1 prescribed the use of medication to stabilize the Complainant. The Record shows that the Complainant vociferously disagreed with Registrant 1 s diagnosis and alleged she was force fed antipsychotic drugs. [9] The Complainant submitted: I was force fed Olanzapine an anti psychotic, for 6 days as I was involuntarily admitted. (Registrant 1) decided that I was Bipolar without speaking to me, and also said that I threatened the Prime Minister when in the psych ward, where I had no sleep for 14 days. I did say that I was going to bite Stephen Harper s leg, which I did not mean it, I am vegan, and was so out of it from lack of sleep, and the only reason I said it was because that I had been waiting for over 3 decades for my Hep C settlement. (all sic) [10] Registrant 2 originally saw the Complainant for a knee replacement in The Complainant was happy with the results of the surgery and her treatment by Registrant 2. When she was again experiencing difficulties in 2013 she returned to him for further treatment. She alleged that he asked why she was haunting him, insulted her looks by writing that she appeared older than her chronological age in her records and did not help her: By the time I saw him again in December 2013, I could no longer bend my right knee and had a major burning sensation. I went for another x-ray and when I saw (Registrant 2), he told me I was faking a knee injury, and that he couldn t help me anymore. Who fakes a knee injury? After this discrimination, lack of professionalism, and lack of empathy, I decided to switch knee doctors, which resulted in an 11 month wait for a credible orthopedic surgeon. The second opinion of the new orthopedic surgeon, states that I need a total knee replacement (TKR) which I am still waiting on. IV ADEQUACY OF THE INVESTIGATION [11] The HPA states that a Complainant is entitled to an adequate investigation. The Review Board has examined what an adequate investigation means in a number of cases. Three principles have evolved: first, the investigation does not have to be perfect or exhaustive; second, adequate steps must have been taken to obtain key information; and third, the question of adequacy will depend on the facts of each case with reference to the seriousness of the harm alleged and the complexity of the investigation. [12] Applying these considerations to this application the harm alleged was substandard care and unprofessional treatment, and the investigation did not need to be overly complex. [13] On receipt of the complaint the Inquiry Committee notified the Registrants and asked for their responses to the allegations and the Complainant s medical records. The

4 Inquiry Committee also requested a response from the Complainant s general physician from 2009 to 2011, and her hospital records. [14] Registrant 1 responded that when she saw the Complainant in the emergency room she exhibited pressured speech, impaired judgment, tangentiality, irritability and dysphoria. The Complainant met the criteria for the diagnosis of Bipolar Affective Disorder - Hypomania. The Registrant s response noted: The contribution of substance abuse (marihuana, and by history heroin) did not appear to be a major contributing factor and a distant history of depression indicated primary mood disorder. Because of the risk of harm to herself and a specific other, the apparently rapid onset of symptoms and her refusal to accept any diagnosis other than insomnia she was certified under the Mental Health Act and transferred to the Inpatient Psychiatric Unit. From her presentation in the ER, through her hospital stay and in subsequent contacts with the mental health system (the Complainant) displayed symptoms compatible with a diagnosis of hypomania. Her continued rejection of the diagnosis is not unusual in patients with this disorder and she was encouraged to retain supportive contact with Mental Health as a precaution against relapse. In view of her acknowledged past heroin addiction and current marihuana use, substance abuse was considered but dismissed as a likely contributing factor. She was asked about drug use for this reason and was never accused of being a drug addict. The on line assessment tool used by the Intake team contains questions about drug use as it pertains to psychiatric illnesses. The Mental Health and Addictions program is a coordinated program that acknowledges that concurrence of these issues is high and the programs are sensitive to this. For a number of years I worked as a consultant to a program designed to address the needs of patients with serious and persistent mental illness and substance use/abuse. I do not dismiss patients with concurrent disorders as druggies. [15] Registrant 1 continued: It is clear from the records provided that (the Complainant) is and has been under a great deal of stress and has successfully overcome a narcotic addiction. She has been offered and has made use of various supports for her difficulties. She is to be congratulated for her efforts in that direction. However, from the records of her attempts to see me in 2010 and early 2011 she is reported on at least two occasions as saying she neither needed nor wanted psychiatric care. It seems her desire to be seen was not for assessment or treatment but to have her medical record altered retroactively. This cannot be done. [16] Registrant 2 responded that he had seen the Complainant for the surgical repair of her knee in 1984 and was again consulted for similar care in Registrant 2 advised that rather than further surgery, he had recommended a brace and injections to

5 help improve the aching and catching of her right knee. He also noted there had been problems with the Complainant s interactions with his staff: As witnessed by my MOA, patient literally bought a duffle bag of pot to pay for her brace from our Brace Department - understandably upset that such was not accepted and then began verbally abusing our office staff. [17] He continued: Her complaints that she was discriminated insulted by my precise accurate description of her September 17/13 as being old looking middle aged female walking with limp favouring right leg After her follow up visit of December 5/13 she literally wanted me to find and go after the photographer who apparently caused her right knee injuries and give him the bill for her brace and knee injections - again very verbally abusive to myself and the office staff when such was refused. [18] The Complainant disagreed with this description of their interactions. She submitted a photograph to demonstrate that she did not look older than her age and wrote that she was only carrying a small bag of marijuana that she grew organically and legally. [19] The Inquiry Committee also secured the records and a response from the Complainant s general physician from 2009 to She stated: On November 10, 2009 she informed me that she had been assessed at the (regional) hospital and diagnosed with Norwalk virus. She had not slept for a week and was hoping for a prescription for sleeping pills. She was upset about having been admitted to the psychiatric ward and having been given olanzepine against her will. She stated that the police were also called to her home. She did admit to growing marijuana at home for herself and other people for treatment of medical conditions. She subsequently obtained a prescription from another doctor for medical marijuana for her arthritic pain. In November, 2010 (she) requested a referral to (Registrant 1), the psychiatrist who had looked after her during her hospitalization, as she wished to put the record straight. She felt that she could no longer go to the (regional) hospital for treatment as she was perceived as a drug seeker. The referral was declined as it was not for clinical reasons. I also referred her to our local mental health for clarification of any mental illness. I have enclosed their assessment. [20] The Complainant submitted a letter from her clinical counsellor as part of her complaint. The letter may have been prepared for another proceeding. However, it offers the following assessment of the Complainant s health: During the 3.5 years I provided counselling to (the Complainant), this writer never witnessed any evidence of bi-polar disorder. I.E. She exhibited neither manic, hypomanic nor cyclical mania-depression symptoms. She did appear to be struggling

6 with anxiety and depression regarding major losses in her life, including a long term relationship break up, chronic severe health problems and an inability to work, caused by Hepatitis C due to receiving tainted blood during an operation, as well as osteoarthritis, chronic pain and insomnia stemming from the aforementioned work and motor vehicle accidents. In this writer s opinion, (the Complainant) is neither mentally ill nor dangerous to her self or others. In fact, in spite of her difficulties, (the Complainant) presents as empathic and gentle. Like most people, however, she becomes defensive if she feels threatened or mistreated. She has had to deal with a tremendous amount of stress due to her problems with chronic pain and physical disabilities. I suspect this stress - combined with feeling threatened and misunderstood - have played a large role in her recent dealings with authorities that have led to problems with the criminal justice system. [21] Registrant 1 addressed this in her response: (The Complainant) provides a letter dated September 15th, 2014 from a Registered Clinical Counselor who reports that During the 3.5 years I provided counselling to (the Complainant) this writer never witnessed any evidence of bi-polar disorder. i.e. she exhibited neither manic, hypomanic nor cyclical mania-depression symptoms. This statement displays a lack of knowledge of mood disorders and their natural pattern. Patients may go for years or even decades without showing symptoms and be found to be completely euthymic in the intervals between episodes. This does not discount the diagnosis (however unpalatable) at the time of an acute event. [22] The hospital records for her involuntary admission included a consultation document prepared by another physician. It notes that the Complainant was easily irritated with mildly pressured speech. It continues that she denied any suicidal ideation but that she had poor insight. It also noted that the Complainant had escalated and security needed to restrain her down. Finally the document stated that the Complainant had attacked a hospital security officer. [23] The hospital records also included a medical certificate for involuntary admission. The form signed by another physician references pressured speech and ongoing threats to the premier, RCMP and medical doctors. There is a second medical certificate signed by Registrant 1 that is mostly illegible but I can discern references to pressured speech and threats to the Premier. [24] The hospital record discharge summary completed by another health care worker includes the following: This 47-year-old lady was brought to the emergency room by the RCMP and certified under the Mental Health Act, having called 911 because she was having difficulty sleep. (sic) She had come to the emergency room, then left and came back and was found smoking marijuana in the quiet room. She made some statements threatening harm to the Prime Minister, was irritable, uncooperative with history providing and therefore certified under the Mental Health Act and detained in seclusion. It emerged through the clinic that she had attended in Vancouver that she had a distant history of substance use and a hospitalization for depression, but no other psychopathology. She insisted that she required medical marijuana: however, when the RCMP attended her home apparently

7 they found a grow-op and expressed interest in having continued contact with her on discharge. Her mood stabilized on olanzapine; however, she retained absolutely no insight, insisting that all the difficulties related to her need for marijuana and her lack of sleep. Her interactions normalized to the point where she was transferred voluntary status, at which time she indicated she did not wish to remain in hospital and the RCMP were advised of her discharge. Prior to discharge discussion was held with the patient that she would benefit from ongoing mental health monitoring, give at least two episodes of mood disturbance, probably both in the context of substance abuse; however, (the Complainant) indicated she had no interest in this. [25] The Complainant wrote on this last paragraph of copy of the letter she submitted: Why? All I needed was to go to sleep. [26] The Record also includes two letters from another psychiatrist, again apparently in relation to a different matter. The first, dated February 26, 2015, states that the writer does not believe that the Complainant is a danger to herself or others at this time. On June 11, 2015, the same psychiatrist wrote, It is my professional opinion that (the Complainant) does not have a Bipolar Affective Disorder. She is not a danger to herself or others at this time. [27] The Record also includes a letter from her recent general physician, again apparently in relation to another legal matter, that includes the following: (The Complainant) does not have a mental illness. She was treated as an out patient at the age of 33 for reactive depression when she was diagnosed with Hepatitis C. She required 8 months treatment with Prozac at that time. In March 2009 she experienced a prolonged period of insomnia and became agitated and manic. The RCMP became involved and she was admitted to hospital for assessment from March 3rd to the 10th. Her symptoms resolved fully, and she feels that the episode was likely related to side effects of a traditional Chinese Medicine she was taking at the time. She has had no similar episodes since then and has not been under psychiatric care nor has she required any psychiatric medication. [28] The physician also stated: (The Complainant) has encountered many challenges in her life and has overcome them, but these recent events have been overwhelming for her. She says that she has lost her business her house, her reputation and her independence at the hands of her ex partner [29] There is no specific reference to either of the Registrants however in this letter. [30] In summary, the Inquiry Committee secured and reviewed detailed responses from both Registrants, the relevant medical and hospital records, a response from her general physician from 2009 to 2011, and reviewed the extensive submissions and

8 documents filed by the Complainant. The Complainant also had an opportunity to respond to the Registrants submissions. [31] It is clear that the Inquiry Committee sought, obtained and examined the key information necessary to make its disposition. I find there was an adequate investigation. V REASONABLENESS OF THE DISPOSITION [32] The HPA requires that the disposition be reasonable. The Review Board has analysed this criteria on many occasions. The Review Board has concluded in earlier cases that the disposition must fall within a range of outcomes that are defensible on the facts and law; be sufficiently intelligible in that it is clearly understood; be transparent in that it is clear how the Inquiry Committee arrived at its conclusion; and be sufficiently justifiable so that a reader can understand it. [33] The Inquiry Committee reviewed the background of the complaint and the responses from the Registrants. Regarding Registrant 1, the disposition notes: The authority of the College derives from the Health Professions Act. The Mental Health Act is a different statute, administered separately. Section 22 of the Mental Health Act sets out the requirements of involuntary admission. When physicians, based on their clinical assessment determine that a patient is suffering from a mental disorder with potential to pose a danger to themselves or other people or to cause serious deterioration in their health, the physicians have the legal authority to detain the patient in hospital against their will. There are circumstances under which patients require physical or chemical (medication) restraints for their protection of themselves, the protection of staff, and the protection of other patients. While this is generally a last resort, at times physical restraint is a practical necessity. Involuntary admission under the Mental Health Act allows for patients to be treated against their will. We understand that you were dissatisfied with the medications with which you were treated. However, our review has shown that your medications were consistent with standard psychiatric practice in the treatment of psychotic disorders. The College must respect the process of involuntary review under the Mental Health Act. Our role in reviewing complaints like yours is limited to ensuring that the physicians involved have documented appropriate initial and ongoing assessments. It would be inappropriate for us to second guess a well-founded decision of this nature, made by the doctor at the bedside. (Registrant 1 s) assessments are consistent with requirements set out in the Mental Health Act and standard medical practice. We acknowledge your belief that her assessment was incorrect. (Registrant 1) may not alter your previous medical records unless she believes she has erred. [34] The Inquiry Committee concluded that it had no criticism of the care provided by Registrant 1.

9 [35] Regarding Registrant 2 the Inquiry Committee decided that the records indicated that the assessment and medical care was consistent with standard orthopaedic management. It did not find any fault with the standard of care. However, the disposition stated: We acknowledge that you are dissatisfied with the terminology (Registrant 2) used in his consultation letter. We acknowledge that the phrase old-looking is perhaps severe. However a similar phrase, such as who appears older/younger than his/her chronological age is considered standard medical terminology, commonly used in consultation letters. While we acknowledge this language may appear harsh to the general public, there are certain aspects of medical terminology that share this characteristic. [36] The Inquiry Committee concluded that while a physician s clinical impression of a patient s physical appearance is a relevant aspect of the assessment it would suggest to Registrant 2 to consider amending his future consultations to employ phrases that are perhaps more neutral. It advised that it was not appropriate for Registrant 2 to amend the consultation letter unless he believed he had made an error. The Inquiry Committee found that there was no indication that the Complainant had been discriminated against based on the description of her appearance. It emphasized that its observation regarding the language used by Registrant 2 did not rise to the level of regulatory criticism. [37] It appears that the Complainant alleged that the disposition was unreasonable because it did not support her version of events. However, the disposition was based on an adequate investigation and addressed the main elements of her complaints. [38] The Complainant submitted that Registrant 1 misdiagnosed her. Registrant 1 maintained that she based her diagnosis on her observations, the Complainant s medical history and presentation as well as her own expertise. Her decision to certify the Complainant under the Mental Health Act was based on the legislation and met its requirements. The fact that other health care providers determined, years later, that the Complainant did not suffer from any mental disorders does not negate the original diagnosis. Registrant 1 addressed this phenomenon in her response. Furthermore, Registrant 1 did not refuse to treat the Complainant after she left the hospital. The documents show that she was available if the Complainant wished to consult her regarding her mental health. However, Registrant 1 could not revise her medical records because she believed them to be accurate based on her supported diagnosis. Registrant 1 addressed the Complainant s complaint. The Complainant simply does not agree with the Registrant s findings based on her personal experiences and her own interpretations. [39] Registrant 2 also responded to the concerns raised by the Complainant. He submitted that his choice of words accurately reflected his observation and was relevant to her medical history. He also defended his recommendation that the Complainant did not require further surgery but would benefit from other medical supports such as injections and a knee brace.

10 [40] The Inquiry Committee found that Registrant 2 s care met the standard expected of an orthopaedic surgeon but that his phrasing was severe. The disposition suggested that he use a more neutral phrase such as appears older/younger than his/her chronological age in the future if that is his observation. [41] The Review Board has neither the jurisdiction nor the expertise to substitute its opinions for that of the Inquiry Committee on matters of professional standards or penalties. This disposition was well within the range of outcomes that would be defensible on the facts and law. It was intelligible, transparent and justifiable. VI CONCLUSION [42] I must consider whether, on a reasonableness standard the disposition of the Inquiry Committee falls within the range of acceptable outcomes that are defensible based on the facts obtained through the investigation. Taking these factors into account I find that the disposition of the Inquiry Committee is reasonable. [43] This being the case, I confirm the disposition of the Inquiry Committee. This decision should in no way suggest that the Complainant should not have felt aggrieved, particularly given her losses and the degree of pain with which she experiences everyday life, but only that the Review Board has no jurisdiction to accede to her request. [44] I have made two observations from my review of the Record that I wish to note here. First, the submissions from the Complainant are full of handwritten comments from the Complainant referring to various health care professionals as a big fat pig, obese drug pusher, braindead inbreds, stupid morons. These characterizations were difficult to read, particularly given how frequently they appeared. [45] In addition, the Record contains many references to the physical pain and the trauma the Complainant has suffered as a result of her injuries and life circumstances. The fact that I have no mandate to interfere with the Inquiry Committee disposition is in no way intended to disrespect her current situation. I sincerely hope that the Complainant is able to find some relief. [46] In making this decision I have considered all the information and submissions before me whether I specifically referenced them or not. L. McDowell L. McDowell, Panel Chair Health Professions Review Board