Health Professions Review Board

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: Toll Free: (within BC) Facsimile: Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 Website: DECISION NO HPA-058(b); 2014-HPA-059(b) (Grouped File: 2014-HPA-G25) In the matter of an application under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the Act ) for review of a complaint disposition made by an Inquiry Committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of BC COLLEGE AND: A Physician REGISTRANT 1 AND: A Physician REGISTRANT 2 Collectively the Registrants BEFORE: David A. Hobbs, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on June 12, 2015 APPEARING: For the Complainant: Self-represented For the College: For the Registrants: Sarah Hellmann, Counsel Julie K. Gibson, Counsel DECISION ON APPLICATION FOR REVIEW I INTRODUCTION [1] This application for review involves disposition of a complaint against Registrants 1 and 2 concerning their involvement with a youth and the representation of their roles regarding a treatment program the youth attended.

2 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 2 II BACKGROUND [2] The Complainant s then infant daughter (the Patient ) was admitted to a hospital from June 8 to 15, The Record indicates that Physician s Orders on June 14, 2010, regarding the discharge of the Patient from the hospital were: Discharge to parents care. 1. Discharge diagnosis: Irritability of Adolescence + parent-teen relational problem 2. No psychiatric meds on discharge. 3. Follow up via: + the (Program) for summer (another program) + (another doctor and program) [3] Anyone who has experienced teenage adolescence or parenting a troubled teen might well empathize with the complexity and stress in managing and addressing the difficulties such circumstances present. At the time of writing this decision I hope the Patient is doing well and the stress for the Complainant is diminished. [4] On June 16, 2010, following discharge from the hospital, the Patient was admitted to a private youth counselling and treatment program (the Program ) where the Patient remained until December 17, 2010 at a cost of $68, [5] Registrant 1 was listed as a staff member of the Program on its website and described as being the Program s Consulting Medical Director. [6] Registrant 1 s actual involvement with the Patient from June 16 to December 17, 2010 was a single intake physical examination of the Patient at an additional charge of $ [7] In the Complaint Form regarding Registrant 1, received by the College on June 29, 2011, the Complainant informed the College a civil action had been commenced against the company running the Program and the Company s owner. The Complainant said the Program was a scam. The Complainant asked the College to please investigate the misrepresentation of (the Program) as a treatment centre/program and (Registrant 1 s) role in this. [8] The College wrote Registrant 1. Registrant 1 replied by letter dated May 8, 2011, explaining he gave the Patient an intake examination on June 28, 2010 and producing a copy of his clinical note which was a plain and simple note that she looks well and her standing medication orders were filled. Registrant 1 acknowledged in this letter the Program lists him as Medical Director but, he had no role in the treatment plan of kids while they are in the Program.

3 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 3 [9] At the time of writing the May 8, 2011 letter Registrant 1 was no longer with the Program and at no time did he have an interest, financial or otherwise, in the Program. [10] On July 6, 2011, Registrant 1 wrote the Complainant explaining his intake role and apologizing for any misrepresentation by the Program as to his role. At the same time Registrant 1 wrote to the Program withdrawing his services effective immediately. Registrant 1 stated in his letter to the Program the reason for the withdrawal was that the listing of him as Consulting Medical Director was neither discussed with nor agreed to by Registrant 1. The letter also mentioned that Registrant 2 had been suddenly acquired as the new Consulting Medical Director without notifying Registrant 1. Registrant 1 asked that his name be immediately removed from the website of the Program. [11] Registrant 2 had no involvement with the Patient but had become the new Consulting Medical Director for the Program and described as such in the Program s website. [12] The Inquiry Committee considered the Complaint and provided the Complainant with its decision by letter dated March 16, 2012 (the Decision ). [13] In the Decision the Inquiry Committee was critical of Registrant 1 for not regularly reviewing the literature and website of the Program to ensure his services were correctly represented. Otherwise Registrant 1, beyond the intake examination, was not involved with the Patient during her stay at the Program. The Inquiry Committee partially sustained the Complaint, informed Registrant 1 of its Decision by separate letter and advised him to be more careful not to allow himself to be professionally misrepresented. [14] As Registrant 2 had no involvement with the Patient s care the Complaint was not sustained against Registrant 2. [15] The Record indicates the Complainant pursued her dissatisfaction with the Program and persons associated with it on many governmental, legal and regulatory fronts, including seeking review by the Review Board of the Decision. As the Complainant states in one dated March 6, 2013: And as I continue to push, it is because two years after I first started filing complaint (sic), this business is fully alive and well, continuing to operate without any government oversight or licensing and continuing to market to desperate families using deceptive and misleading means. The Complainant s opinion and mission are clear from this quote as one example from the Record. [16] As the Complainant provided further information to the College the parties consented to a Consent Order of the Review Board, dated April 16, 2013, that the Inquiry Committee would investigate the expanded Complaint and additional information, and thereafter issue a new disposition.

4 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 4 [17] By letter dated August 1, 2013 the Deputy Registrar posed further questions to Registrant 1 and Registrant 2 either directly or via their legal counsel. [18] In January, 2014, the College investigators met with Registrant 1 and 2. [19] After interviewing Registrants 1 and 2, the expanded Complaint was reviewed by the Inquiry Committee on February 20, The memos summarizing the interviews of the Registrants were sent to the Complainant who provided further submissions. [20] When the Inquiry Committee met on February 20, 2014 they had an expanded document package including various documents created during 2011, 2012, 2013, and 2014 involving the Program, legal counsel, taxing authorities, medical history of the Patient, Registrants 1 and 2, and correspondence to and from the Complainant. [21] The Inquiry Committee communicated its second disposition regarding Registrant 1 to the Complainant by letter dated March 5, 2014 (the Second Decision R1 ). The Inquiry Committee was comprised of two senior physicians and a public representative. [22] The Second Decision R1 states the College has jurisdiction over the Registrant s conduct, but not the Program. [23] The Inquiry Committee acknowledges in the Second Decision R1 the fact of overstatement by the Program of Registrant 1 s role in the website and printed materials, and further, was critical of Registrant 1 in this regard. In the Inquiry Committee s view Registrant 1 s actual role was akin to a camp physician. [24] The Inquiry Committee concluded Registrant 1 s examination of the Patient met the standard of care for such an intake examination in all the circumstances. [25] The Inquiry Committee noted that the criticism of Registrant 1 had been comprehensively canvassed with him in a meeting. [26] The Complaint against Registrant 1 was concluded on the above basis and the Inquiry Committee directed an article be published in the College s quarterly online newsletter as mandatory reading, emphasizing primary care roles should not be exaggerated in treatment facility or program promotional materials such as brochures or websites. [27] A separate second Inquiry Committee decision was prepared regarding Registrant 2 and communicated to the Complainant by letter dated March 5, 2014 (the Second Decision R2 ) [28] In the Second Decision R2 the Inquiry Committee was critical of Registrant 2 for appearing to practice in association with a non-registrant and for allowing himself to be portrayed as a member of a program team when in reality his role was limited to general practitioner services, albeit never provided to the Patient.

5 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 5 [29] The Inquiry Committee directed Registrant 2 to remedy his recordkeeping and tax letter writing practices in accordance with appropriate standards. [30] As Registrant 2 had been interviewed and compliance was anticipated, the matter was concluded on that basis, with the directions comprising part of Registrant 2 s permanent record. [31] Following the Second Decisions R1 and R2 the Complainant continued to express concerns and arguments to the College. The College wrote the Complainant by letter dated March 20, 2014 stating that in the College s opinion, having reviewed the Program s website, there was at that time no reference to any service that might reasonably be construed as the unauthorized practice of medicine so as to engage the College s mandate to protect the public against same. [32] By letters dated March 20 and 29, 2014, the Complainant applied to the Review Board to have the Second Decisions R1 and R2 reviewed under s. 50.6(1) of the Act. [33] The two applications for review were directed by the Review Board to be combined pursuant to s. 37(1)(2) of the Administrative Tribunals Act ( ATA ) by letter dated August 27, [34] By letter dated October 2, 2014 the Complainant made an application for exclusion of certain evidence under s. 42 of the ATA. [35] By decision dated November 24, 2014 [Review Board Decision No HPA- 058(a); 2014-HPA-059(a)], I partially allowed and partially dismissed the Complainant s s. 42 ATA application. The Complainant asked that s. 42 ATA decision be reconsidered and that request was denied by letter dated December 9, [36] The Complainant provided her Statement of Points on January 7, With it the Complainant sought to add evidence to the Record in the form of a disk with approximately 900 pages of documents on it. The Complainant stated the list of additional evidence was a work in progress. [37] By letter dated January 21, 2015, I advised the Parties that I had completed the Stage 1 hearing in this matter and directed the matter proceed to a Stage 2 hearing with directions as to delivery of the further Statement of Points and final reply. [38] The College provided its Statement of Points on March 20, [39] By dated April 20, 2015 the Complainant sought to add to the Record a decision of another body and related correspondence. [40] The Statement of Points of Registrants 1 and 2 were received by the Review Board on May 1, [41] The Complainant provided her final reply by letter dated May 13, 2015.

6 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 6 [42] By letter dated May 20, 2015 I notified the College and Registrants of the Complainants April 20, and additional evidence request offering one more opportunity to make further submissions. [43] The College and Registrants provided further submissions by letters dated June 5, [44] By letter dated June 12, 2015 the Complainant provided further final reply submissions. III DISCUSSION AND ANALYSIS [45] The jurisdiction of the Review Board in this review is to consider the adequacy of the investigation and reasonableness of the dispositions. [46] The Complainant submits the College has jurisdiction over the practice of medicine and this extends to situations where a business assesses and treats youth dealing with mental illness and/or addiction issues. The Complainant also argues the investigation was inadequate and disposition unreasonable. [47] Much of the Complainant s submissions turn on an argument repeatedly made that the Program was offering medical services such that the College should exercise its jurisdiction over the business of the Program. [48] The Complainant raises the applicability of the Medical Practitioners Regulations. [49] The Complainant asks the Review Board to make orders and directions to clarify jurisdictional boundaries for the College regarding businesses such as the Program wherein youth with mental illness and/or addiction issues are receiving treatment. [50] In the College s Statement of Points they cite the Medical Practitioners Regulation (the Regulation ) which defines medicine as: the health profession in which a person provides the services of: (a) assessment and management of the physical and mental condition of an individual or group of individuals at any stage of the biological life cycle, including the prenatal and post mortem, (b) prevention and treatment of physical and mental diseases, disorders, and conditions, and (c) promotion of good health. [51] The Regulation provides only a registrant of the College may provide a service of medicine.

7 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 7 [52] The College submits that under s. 52 of the Act the College may pursue injunctive relief against a non-registrant practicing medicine but, the Review Board has no jurisdiction or authority over the College s implementation of its jurisdiction under s. 52 of the Act. [53] The College submits that the Complainant is entitled to an adequate investigation which standard does not entail a perfect investigation of exhausting all avenues of possible investigation. The College points out its resources are not limitless. [54] The College submits adequate steps were taken in the investigative process yielding the key information necessary to properly assess the Complaints. [55] The College submits a reasonable decision was reached supported by a tenable explanation. Every issue raised does not have to be commented on. The Second Decisions R1 and R2, viewed as a whole in the context of the Record, are submitted to be reasonable. [56] The College notes the role of the Review Board is to review whether the disposition is within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [57] The College submits the Complainant is seeking systemic and legislative reform given the volume of material contained in the Record and the various entities mentioned therein including the Ministry of Health, Ministry of Education, Ministry of Children and Family Development, the Premier of the Province, Members of the Legislative Assembly, and Interior Health Patient Care Quality Office. [58] The College submits the complaint process should be directed at and confined to the conduct of the two Registrants, not concerns for systemic reform. [59] The Registrants make many of the same submissions as the College and say that the Complainant s ongoing concern is with the Program whereas the complaints are directed at Registrants 1 and 2. [60] The College and the Registrants submit that the additional evidence sought to be admitted should not be added to the Record as it contains records from different agencies with different mandates and is not material to this review under the mandate of the Review Board. [61] The Registrants say it is prejudicial to permit the Complainant to continue to add materials to the Record as a work in progress exercise. [62] The Complainant, in her final reply, says the additional evidence is required for full and fair disclosure of all matters related to the issues under review. [63] In my view the investigations of the Complaints against Registrants 1 and 2 were adequate, and in particular:

8 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 8 (a) the Inquiry Committee re-opened its investigation and interviewed both Registrants; (b) the facts regarding both Registrants conduct were relatively straightforward in that Registrant 1 examined the Patient once and permitted his role to be exaggerated in promotional material of the Program. Registrant 2 did not treat the Patient and also permitted the representation of his role and record keeping standards to be handled in an inappropriate manner; and (c) the Inquiry Committee considered the Complaints twice with significant investigative effort and documentation, albeit not exhaustive. [64] I am also of the view the Second Decisions R1 and R2 were reasonable. The Registrants were criticized for allowing the representations of their roles to be exaggerated in the Program promotional material and Registrant 2 s record keeping and association with non-registrant businesses practices were addressed. [65] The Inquiry Committee s direction to have its quarterly online newsletter warn registrants generally to be vigilant to avoid exaggerated representation of their roles in connection with promotional material of private treatment businesses was in my opinion a reasonable step as it created awareness of the issue for all registrants thereby enhancing protection of the public. [66] The Complainant s multi-faceted effort to address concerns regarding businesses treating youth with mental illness and/or addiction issues is also commendable, but the Complaints as they relate to Registrants 1 and 2, which is the scope of complaints before the College, have been adequately investigated and reasonably disposed of in my view. [67] It is not my role to adjudicate whether the Inquiry Committee correctly defined its jurisdiction as it relates to the Program as my role in this review is set out in s. 50.6(1) of the Act. [68] I note that the Program involved many different types of practitioners in the health care field including psychologists, counsellors, and therapists who are not registrants of the College and either are un-regulated or regulated by other Colleges. IV CONCLUSION [69] I confirm the Second Decisions R1 and R2. [70] I do not consider the evidence from the Complainant contained in the disk or attached to the dated April 20, 2015 reasonably required for a full and fair disclosure of all matters related to the issues under review and decline to admit same. I agree with the College s and Registrants submissions that it is prejudicial to simply continue adding new evidence as a work in progress as other agencies with different mandates generate decisions and correspondence. Had I decided to admit this

9 DECISION NO HPA-058(b); 2014-HPA-059(b) Page 9 additional evidence it would not have changed my decision to confirm the Second Decisions R1 and R2. [71] I have considered the Record, evidence sought to be added and all the submissions of the Parties though not specifically referred to in this decision. David A. Hobbs David A. Hobbs, Panel Chair Health Professions Review Board August 5, 2015