Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. College of Physicians and Surgeons of British Columbia DECISION NO. 2018-HPA-010(a) July 16, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) 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 BEFORE: Marilyn Clark, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on May14, 2018 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Michelle Stimac, Counsel Ericka Decker, Counsel STAGE 1 HEARING [1] This request for review of the College Inquiry Committee s decision has been referred to me for a Stage 1 hearing. At this stage the following results are possible: (a) I may confirm the Inquiry Committee disposition and finally adjudicate on the merits without the need for submissions from the College and Registrant; or (b) I may determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant. [2] I have reviewed the record of investigation (the "Record") provided by the College and submissions from the Complainant, and decided it is appropriate to adjudicate by way of a Stage 1 hearing. Accordingly, this review of the Inquiry Committee s disposition is based solely on the Record and submissions from the Complainant.
I INTRODUCTION [3] The Complainant filed a complaint with the College on February 7, 2017, with regard to the care provided to her mother by the Registrant. Her mother resided in a care facility ["Care Home"] in southern British Columbia where the Registrant provided care to the residents. [4] Subsequent to the filing of the complaint, the Complainant's mother died on March 11, 2017. I will refer to the deceased as the "Mother" within this decision. [5] The Complainant asserts the Registrant did not provide the care her Mother required. However, the focus of her complaint is that when the Complainant presented the Care Home and the Registrant with a Representation Agreement signed by the Mother naming the Complainant as the Representative, they did not accept it on the basis that the Mother was not competent to make such an Agreement. Instead, they insisted on basing end of life decisions on a Medical Orders for Scope of Treatment ( MOST ) form used within the Health Authority. The decision noted on that form was for "medical treatments available within location of care" (DNR M2). [6] The College disposition stated "the medical care provided to [the Mother] by [the Registrant] was standard and appropriate in all respects, revealing no basis for regulatory criticism." [7] The Complainant submits the investigation by the Registrar was inadequate and the disposition unreasonable and has asked in her Application for Review to have the Review Board return the file to the Inquiry Committee to make a decision they could have made in the circumstances. II BACKGROUND [8] The Mother was admitted to the Care Home on May 6, 2014. At the time, she was recorded as having the following issues: Afib, DM, dementia, pacemaker, osteoporosis, HTN, rectal prolapse is reducable, has a hx of UTI, lypokalemia, agitation. [9] It took the Mother some time to settle into her new surroundings and this was a concern for the Complainant. [10] The Registrant or a locum attended the Care Home weekly but did not see every patient every week. A Nurse Practitioner was also assigned to provide care to the patients. [11] Over the course of time, the Complainant brought to the attention of the Registrant her dissatisfaction with the care her mother was receiving. The Complainant articulated her concerns in regard to the following: her mother's hearing was affected when she was found to have a build-up of wax in her ears. When the staff were to take steps to remove the wax,
according to the Complainant this did not happen as quickly as she thought it should have; her Mother had recurrent urinary tract infections and the Registrant did not treat these in the manner the Complainant thought appropriate; her Mother, the Complainant discovered on one visit, had red welts on her back and the cream prescribed by the Nurse Practitioner was not helping; the Complainant believed her mother was over-medicated and requested some medications be discontinued and others be reduced in strength. [12] Very quickly the Registrant and the staff identified an issue as to which of two daughters, the Complainant, who lived in Alberta, or the other who lived in the same municipality of the Care Home, was the decision maker in regard to their Mother. Apparently the sisters did not communicate and had different views on the care of their mother. The Complainant did not agree with the care decisions her sister was making and took steps to establish herself as the decision maker by having her Mother name her as the Representative in a Representation Agreement. That would give the Complainant the right to make end of life decisions on behalf of her Mother if the Mother was not competent to make such decisions herself. [13] Prior to receiving the Representation Agreement, the Registrant took steps to determine whether the Mother was indeed competent at the time to name a Representative. Determination of Competency of the Mother [14] On March 16, 2015, the Complainant contacted the Registrant's office asking that an assessment of her Mother take place to determine if she was competent. [15] The Complainant's Mother was examined by a Psychiatrist on April 9, May 27 and June 22. 2015. The Psychiatrist found her to have "advanced dementia which is associated with significant cognitive and functional impairment, lack of insight and... and I do not feel that this lady has the requisite capacity to make decisions about her welfare in terms of where she should live and whether or not she should leave her current accommodation.". 1 [16] The Registrant submits in his response that, following the assessment performed by the Psychiatrist that her expert opinion was that "the Mother was incapable of authorizing such a document because she did not have the capacity to understand the implications of such decisions as is required when one undertakes to formalize a Representation Agreement Section 9." [17] On July 16, 2015, the Complainant took her Mother to a Notary Public to have her enter into a Representation Agreement naming the Complainant as her Representative. At that time, the two daughters each had Power of Attorney and were of 1 The Complainant wanted to move her Mother from the care facility to another one or, possibly, to a home where she would live with her Mother.
the belief they both had to agree to any actions they took with regard to their rights as an Attorney. [18] The MOST agreement, referenced in para. [5] above, at the time of admittance to the Care Home was signed by the daughter who lived locally and provided on-going care and oversite. [19] In the new Representation Agreement, the Mother named the Complainant as her Representative and indicated her choice of end of life care as: I want a trial period of life support with medical interventions, such as a feeding tube, intravenous fluids, a ventilator (breathing machine), CPR, or kidney dialysis. Etc. If the trial period does not help me recover, then I want these interventions stopped to allow natural death to occur. [20] The Registrant's office was first advised on July 21, 2015, of the recently completed Representation Agreement and received it by fax a week later. [21] There was concern among staff of the validity of the Agreement and a patient care conference was scheduled on August 4, 2015. [22] The Care Home's Health Record of that meeting which was attended by the Complainant's Mother, the Complainant's sister and her husband, the Registrant, the Nurse Practitioner, the interdisciplinary team and the Complainant by teleconference reflects the following: The Registrant provided information as to the meaning of the MMSE (Mini Mental State Examination) assessment and clarified the significance of the Deceased's score of 9/30. The Registrant explained the MOST document and end of life decisions. The outcome of the care conference was that the MOST would remain the same: DNR M2, "keeping in mind the 'best interest' of the resident"; the first person contact would continue to be the sister who lived locally and the Complainant would be second. There was clarification with respect to medications that would be used when the Deceased was emotionally upset. [23] It was noted the Complainant did not agree with the Registrant, the interdisciplinary team or the professional referral assessments. The Registrant offered to meet with the Complainant the next time she was in town and the Complainant refused. The sister who lived locally agreed with the clinical team. [24] On August 5, 2015, the Ethics Committee met and agreed to clarify the status of the Representation Agreement with the Health Authority's Adult Guardianship specialist. In addition, they established that contact should be made with both the local sister and the Complainant in regard to the Mother's care, preferably by teleconference; that end of life decisions should be based on the medical status of the resident; that the responsibility for that decision is with the Most Responsible Practitioner, the Registrant, and that it is not the role of the Care Facility to determine competence.
[25] In regard to the referral to the Health Authority, the Registrant states in his response to the College as follows: The validity of the Representation Agreement with Section 9 was questioned and the suggestion to refer to the Public Guardian and Trustee's office was made. I am unsure whether this formally occurred. They did concur with the physician's autonomy in decision making regarding resuscitation as needing to be both in the patient's best interests and consistent with the patient's health status. III LEGISLATIVE ROLE [26] As stated earlier, the Senior Deputy Registrar responded to the complaint on behalf of the Registrar under s.32(3)(c) of the Act. Such a disposition is considered a disposition of the Inquiry Committee under s.32(5) of the Act. [27] As the panel chair, I derive my authority to conduct this review from the Act, which stipulates in s.50.6(5) and s.50.6(8) that: 50.6(5) On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) (b) the adequacy of the investigation conducted respecting the complaint; the reasonableness of the disposition. 50.6(8) On completion of its review under this section, the review board may make an order (a) (b) (c) confirming the disposition of the inquiry committee, directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or sending the matter back to the inquiry committee for reconsideration with directions. [28] If I find the investigation was adequate and the disposition falls within a range of reasonable outcomes, then I must confirm the decision of the Inquiry Committee. [29] At this Stage 1 hearing, I have determined I can fairly, properly and finally adjudicate on the merits without the need for submissions from the College or the Registrant. I will base my review on the Complainant s Application for Review, the Record and submissions from the Complainant. IV THE INVESTIGATION [30] As noted above, my role is to assess the adequacy of the investigation and the reasonableness of the disposition, not to replace the disposition of the Inquiry Committee with one that I might consider more appropriate. If I determine in all the circumstances the investigation was adequate, keeping in mind it need not be perfect,
and the disposition reasonable then I must confirm the disposition of the Inquiry Committee. [31] The Senior Deputy Registrar had extensive information on which to base his investigation. This included, in addition to the considerable documentation provided by the Complainant: a nine page letter from the Registrant with copies of health care records from the Care Home from May 13, 2014; Social Work progress reports; a document summarizing the "history of ongoing dispute between sisters since admission to [Care Home]"; an Advance Care Planning Record and Confirmation of Substitute Decision Maker; and the consultations with the Psychiatrist. This thorough submission from the Registrant provides a different view of the care provided to the Mother than does the documentation provided by the Complainant. Care Home health care records for the period from June 3, 2014 until date of death, March 11, 2017, including medication reviews, complete reports from the consulting psychiatrist and various iterations of the representation agreement and other end-of-life documents. The local hospital to which the Complainant's Mother was referred also provided records of her admission through emergency, the treatment course in hospital and a discharge summary. [32] The investigation identified the difficulty presented by the lack of communication between the Complainant and her sister and their differing views with respect to the care of their Mother. This fact, well described in the Record, was, indeed, a complicating factor for the care givers who received opposing instructions in regard to the Mother's care. V DISPOSITION [33] The Senior Deputy Registrar reviewed and commented on the various complaints of the Complainant in the disposition including the stated concerns with respect to the Mother s medications, ear wax, rash on the back, sores on the feet and recurrent urinary tract infections. [34] The disposition recognized the fact that the documentation maintained by the Care Home corresponded with the response of the Registrant. [35] The disposition summarizes the frequent differences that arise between the care team and a family when a loved one suffers from dementia, is uprooted from the community and is no longer able to make decisions for themselves: Unfortunately, it is not uncommon for family members and healthcare teams to disagree significantly on an appropriate care plan for an elderly patient who is unable to make their own health care decisions. The first obligation to the health care team is to consider the well-being of the patient, and the College expects the physician to make treatment decisions consistent with what the physician believes is in the best interests of the
patient. Our review has concluded that the medical care provided to [the Mother] over the years she was admitted to the [Care Home] were consistent with standard and appropriate medical practice. [36] The disposition, considered to be a disposition of the Inquiry Committee, concludes with the statement: "Our review has concluded that the medical care provided to [the Mother] by [the Registrant] was standard and appropriate in all respects, revealing no basis for regulatory criticism." VI COMPLAINANT'S STATEMENT OF POINTS [37] In her Statement of Points, the Complainant attempts to retry the complaint with the College and does not clarify the reason for her Application for Review. The role of the Review Board is not to rehear the complaint but rather to review the adequacy of the investigation and the reasonableness of the disposition. [38] The Complainant submitted an additional package of information to be considered as part of her Statement of Points but the information in that package is already in the Record. [39] She argues that her sister did not always communicate with her so she did not always know what was going on with the care provided to her mother. Neither the College nor the Review Board can take any action to solve that family issue. VII DISCUSSION [40] My role, as stated above, is to determine whether the investigation was adequate and the disposition reasonable. The Review Board articulated in Review Board decision No. 2009-HPA-0001(a) - 2009-HPA-0004(a) at para. [97] the extent to which a college must investigate a complaint: A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the inquiry committee s assessment of the complaint. [41] It is my view that the investigation was adequate and the Senior Deputy Registrar had sufficient information in the Record to make a reasonable disposition. [42] In para. [92] of the same decision referenced above, the Review Board clarified the approach the Board ought to take in applying the reasonableness test: the review board's focus is nonetheless not to step into the shoes of the inquiry committee, but rather to determine whether the inquiry committee's disposition falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained. The investigation was adequate based on the Senior Deputy Registrar having sufficient information to make a reasonable disposition. The disposition of the Inquiry Committee is justified, transparent and intelligible.
[43] The family dynamic changes when a loved one suffers from dementia and is no longer able to live independently, make their own decisions and manage their affairs. It is so terribly difficult to see that person who you have relied on for most of your life as a care giver, sounding board and mentor and find the roles reversed. It is not just difficult for the failing individual but it can also be terrible for the family members. [44] In this review, it is evident that much of the difficulty appears to relate to the communication breakdown between two sisters who not only did not communicate, but also had very different ideas about the appropriate end of life care of their Mother. [45] It is not the role of the College or the Review Board to respond to the unfortunate dynamics in this family. The investigation was adequate and the disposition reasonable. The fact is that the Registrant, on the basis of three consultations by a psychiatrist, determined the Mother was not competent to make decisions with respect to her ongoing care and end of life wishes. The Registrant's position is corroborated by documentation in the Record provided by the Care Home staff and the hospital. That documentation supports the actions of the Registrant and does not provide credence to the complaints filed by the Complainant. VIII DECISION [46] Pursuant to s.50.6(8)(a) of the Act, I confirm the disposition of the Inquiry Committee. In making this decision I have considered all of the information and submissions before me whether or not I have specifically referred to them. Marilyn Clark Marilyn Clark, Panel Chair Health Professions Review Board