Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of BC DECISION NO. 2016-HPA-183(a) February 1, 2017 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 1 and Complainant 2 COMPLAINANTS Collectively the Complainants AND: The College of Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT BEFORE: Brenda L. Edwards, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on December 23, 2016 APPEARING: For the Complainant: Self-represented DISPOSITION AND DECISION RE: AN APPLICATION FOR AN ORAL HEARING I INTRODUCTION [1] On January 4, 2016, the Complainants wrote to the College with their concerns regarding the care that the Registrant provided to them at an office visit on November 17, 2015. After an investigation, the Inquiry Committee of the College disposed of the matter without regulatory criticism of the Registrant. The Inquiry Committee s disposition was conveyed to the Complainants by a letter dated September 2, 2016, from the Senior Deputy Registrar of the Complaints and Practice Investigations Department of the College, on behalf of the Inquiry Committee (the Inquiry Committee Disposition ). [2] On September 8, 2016, the Complainants filed an application with the Review Board (the Application for Review ) seeking a review of the Inquiry Committee Disposition. In their Application for Review, the Complainants indicated that the relief they were seeking was for the Review Board to either send the matter back to the Inquiry Committee for reconsideration with such directions as the Review Board determines are appropriate or convene an oral hearing in order to adequately investigate the complaint.
[3] On January 9, 2017, this matter was assigned to me by the Chair of the Review Board for a "Stage 1 hearing." At a Stage 1 hearing I may decide to: (a) confirm the Inquiry Committee disposition under s.50.6(8)(a) of the Health Professions Act. R.S.B.C 1996, c 183 as amended ( the HPA ) if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or (b) 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. [4] I am satisfied that this matter may appropriately be dealt with at Stage 1, based solely on the record of investigation provided by the College (the Record ) and the Complainant's Application for Review. I am, further satisfied that an oral hearing before the Review Board is not required for reasons which I will set out later in this decision. II BACKGROUND [5] In February 2015 Complainant 1 was a 65-year-old retired university professor who had recently been diagnosed with Stage 3 colorectal cancer and advised that he had a predicted 5-year survival rate of 60-70%. Shortly after receiving this diagnosis, Complainant 1 and his common law spouse, Complainant 2, moved from the major urban centre where they had been living to their new retirement home in a smaller community on a small island. [To avoid confusion and for ease of reading, I will reference Complainant 1 as the Complainant and Complainant 2 as his Wife or the Wife as appropriate]. The Registrant had a family practice in the town nearby and he agreed to accept the Complainants as patients. [6] As previously planned, in March 2015 the Complainant returned to the urban centre and began chemotherapy and radiation treatment with the goal of shrinking his tumor prior to surgery. Treatments were concluded in May and he underwent a colectomy and ileostomy in June 2015. Following surgery, the medical oncologist recommended six further cycles of chemotherapy which he could undertake back in his local community. On July 6, 2015, the Complainants visited the Registrant; the Complainant reported stress and depression and the Wife reported feeling isolated. The Registrant prescribed an antidepressant to the Complainant who, subsequently reported an improved mood. [7] The Complainant commenced his post-operative chemotherapy in August 2015. On August 7, 2015, the Registrant received an ultrasound report for the Complainant that was suspicious for metastatic disease. [8] In October 2015 during his fourth cycle of chemotherapy, the Complainant became very ill and on October 21, 2015, he was admitted to the local hospital for severe diarrhea and dehydration and his chemotherapy was stopped. At the time, the Registrant was on vacation and a locum assumed care for the Complainant while in hospital. The Complainant remained in hospital until November 14, 2015 when he was
discharged by the locum with several prescriptions (including Nabilone ) and advised to see the Registrant within a week. [9] On November 17, 2015, both Complainants visited the Registrant in his medical office. Both Complainants were distressed following the visit and complained to the College. III DECISION [10] In reaching my decision, I considered all the information that was before me whether specifically referenced in this decision or not, including: (a) the Complainants Application for Review; (b) the 795-page Record; and (c) the Complainants Statement of Points filed December 23, 2015, and entitled Complainants (names redacted) Stage 1 submissions. IV APPLICABLE LEGISLATION [11] The HPA governs the College's oversight of applications for registration and the supervision of registrants. It also provides for the investigation of complaints regarding the conduct or competence of registrants. In addition, the HPA provides the Review Board with authority to review Inquiry Committee dispositions of complaints. [12] The HPA provides in s.32(1) that a person who wishes to make a complaint against a registrant is to deliver the complaint in writing to the registrar of the College (the "Registrar"). Section 32(2) of the HPA requires that the Registrar deliver a copy of the complaint to the Inquiry Committee together with the Registrar's assessment of the complaint and any recommendations that the Registrar has for disposing of the complaint. The Registrar may dismiss a complaint without referring it to the Inquiry Committee in certain situations which are provided for in s.32(3). 32(3) Despite subsection (2), the registrar, if authorized by the board, may dismiss a complaint, or request that the registrant act as described in section 36(1), without reference to the inquiry committee if the registrar determines that the complaint (a) (b) (c) is trivial, frivolous, vexatious, or made in bad faith, does not contain allegations that, if admitted or proven, would constitute a matter subject to investigation by the inquiry committee under section 33(4), or contains allegations that, if admitted or proven, would constitute a matter, other than a serious matter, subject to investigation by the inquiry committee under section 33(4). [13] The HPA requires that the Registrar deliver a written report to the Inquiry Committee about the circumstances of any disposition made under s.32(3), and if the Inquiry Committee approves of the proposed disposition it is considered to be a disposition by the Inquiry Committee.
[14] The Registrar disposed of the complaint in this matter under s.32(3)(c) of the Act. [15] Under s.50.6(1) of the HPA, a person may apply to the Review Board for a review of the disposition of the Inquiry Committee. The Complainants applied for such a review. [16] Section 50.6(5) sets out the responsibility of the Review Board when conducting a review: 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. [17] Section 50.6(8) sets out the powers of the Review Board after completing the review: 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. [18] My task, on behalf of the Review Board, as described in s.50.6 (5) of the HPA, is to review the College's disposition of the complaint and to consider one or both of the adequacy of the investigation and the reasonableness of the disposition. In their Application for Review and Statement of Points, the Complainants submits that the investigation was inadequate because it did not include an oral hearing allowing crossexamination and that the disposition was unreasonable as it was a non sequitur and because it contains a reasonable apprehension of bias. V THE INVESTIGATION PROCESS The Complaint: [19] As noted above, on December 30, 2015, the Complainant sent the College an 11-page complaint letter, co-signed by the Wife and attaching 133 pages of medical records and a number of emails regarding the care the Complainant received from the Registrant. (While both the husband and wife signed the complaint the only medical care discussed is regarding the husband and only his medical records were included).
[20] One of the emails was written by the Wife to a friend the same day as the office visit that is the subject of the complaint. I set it out, in part, below because it provides a different perspective on that visit than was subsequently portrayed in the letter of complaint: our GP, who was away during all of (the Complainant s) hospitalization, told us today that he feels that (the Complainant) will never pull out of this. Part of me denies it (the Complainant s) blood work is normal, his kidneys are working fine, and he is eating. But he is desperately thin and cold, even though he is under many blankets and the heat is turned way up. Now our doctor did say there is a chance (the Complainant) can pull out of this. The problem is with fluid balance more is going out through the ostomy than he is taking in. But even with all my pleading and tears I cannot get (the Complainant) to drink enough water. He just won t. It s the only thing that will save him and he just won t do it. So I have no idea whether he will make it or not. It sounds as though this would be a decline over a few weeks (?) though the doctor did not really say. I will find out. And as I say, if he would only cooperate he might pull out of this tailspin, but I can t see it. He isn t thinking straight and hasn t been for weeks. (emphasis added) [21] In the complaint letter, the Complainant asserted that at an office visit on November 17, 2015, the Registrant initiated a conversation about death and dying with the intent to care for the well-being of the Wife by steering the Complainant toward the prognosis of death, with the idea that palliative care would give them time to say their goodbyes. The Complainant asserted that the Registrant wanted to prevent the Wife from having to care for the Complainant when (he) stopped chemo and began the process of dying. The Complainant alleged that the Registrant physically prevented the Wife from comforting him during the visit. [22] In summary, the Complainant identified four specific complaints regarding the November 17, 2015, visit with the Registrant: (a) The Registrant did not review the Complainant s medical records prior to expressing the opinion that the Complainant should not resume chemotherapy and should seek palliative care; this action constituted malpractice; (b) The Registrant had a duty to inform the Complainant and the Wife of the entire range of physicians opinions concerning the risks and benefits of possible treatments but, instead, he presented only the option of palliative care despite no evidence that the Complainant was dying; (c) The Registrant did not review the medications prescribed to the Complainant while he was away on vacation, specifically the Nabilone prescription and did not comment on the appropriateness of the prescription, thereby implicitly continuing it; and (d) The Registrant acted in a conflict of interest by recommending a course of action for one patient at the expense of another patient (recommending that
the Wife agree to admitting the Complainant to palliative care at the expense of the Complainant). The Investigatory Process and the Results of the Investigation: [23] On January 15, 2016, the Clinical Manager, Complaints and Investigation Department of the College (the "Clinical Manager") wrote the Complainant and the Wife acknowledging receipt of their complaint and advising that the College would provide a copy of the complaint to the Registrant and seek his response and that it might make further inquiries after that such as obtaining copies of his medical records, hospital charts etc. The same date, the Clinical Manager wrote the Registrant and provided him with a copy of the complaint and sought his response and that of a Cancer Agency in the urban centre where the Complainant had been treated, requesting medical records regarding the Complainant. [24] On January 20, 2016, the Cancer Agency provided the requested medical records. On February 5, 2016, the College received an undated letter from the Registrant in response to the complaint. The Registrant stated that he was very saddened to receive the complaint and summarized the care that he had provided to the Complainant and the interactions that he had with the Complainant and his wife as follows: (a) met the Complainant on March 12, 2015, who advised that he had recently moved to the area, had been having abdominal symptoms since August 2014 and had a colonoscopy on March 3, 2015, which showed a mass in his rectum; he was subsequently seen by a general surgeon who reported the mass as a carcinoma; a radiation oncologist advised that it was a locally advanced rectal carcinoma stage 3 and the Complainant underwent a colectomy and ileostomy on June 1, 2015; (b) the Complainant and his wife saw the Registrant on July 6, 2015, and the Complainant reported feeling stressed and the Wife reported that she felt very isolated since moving to the small island from the urban centre where they had previously lived. The Registrant discussed depression with the Complainant and prescribed an anti-depressant. The Registrant noted that the Complainant s oncologist encouraged him to continue to see the Registrant about his depression; (c) the Registrant was copied on an ultrasound report on Aug 7, 2015, which showed the possibility of metastatic disease as a liver lesion with an unusual appearance was noted; chemotherapy was started; and the oncologist described the Complainant as a higher risk as the rectal lesion had invaded the pelvic side wall. The Complainant advised the Registrant that his mood was much better since he had started the anti-depressant; (d) at about the same time as the Registrant went on vacation, on October 21, 2015, the Registrant received an oncologist s report that noted that the 4 th cycle of chemotherapy had caused the Complainant to suffer severe diarrhea and a low sodium level. He was admitted to hospital and placed on intravenous fluids and his 5 th cycle of chemotherapy was delayed and it was
noted that if he had more difficulties it would be stopped early. The Registrant arranged for a local family physician to care for the Complainant in his absence; and that physician transferred care to the Registrant s locum; (e) on November 10, 2015, an Internal Medicine Specialist saw the Complainant in hospital and noted his medical conditions including acute kidney injury and malnutrition and that he was prescribed Nabilone. The Registrant noted that the Complainant had been seen by an Internal Medicine Specialist, was being seen regularly by his General Practitioner (Locum), Oncologist and Palliative Care Physician and that none had recorded any change to the dosage of Nabilone; (f) the Registrant noted that his locum discharged the Complainant from hospital on November 14, 2015, with a discharge diagnosis that included reference to the post-chemotherapy diarrhea, urinary tract infection, hypokalemia, hypomagnesaemia, hyponatremia and stage 3 rectal cancer undergoing chemotherapy; (g) the Complainant and the Wife attended at the Registrant s office for the last time on November 17, 2015; the Wife advised that she and her husband were under severe stress and can t handle it anymore. She noted that the Complainant s ostomy care took up a considerable amount of time, he was quite weak requiring a walker, had a very poor appetite and was nauseous. She stated that both were severely depressed, that she felt very alone and isolated and that she didn t want to live if something happened to the Complainant; and (h) the Registrant discussed that the Complainant had a 70% chance of survival for 5 years, which was encouraging. He queried whether the couple had considered their options if treatment was not successful. He expressed concern for the Complainant s loss of muscle mass/weight loss, severe swelling in both legs, extreme weakness, anemia, severe reaction to chemotherapy drugs and previous findings of lesions in the lung and local invasion of the tumor. The Registrant stated that he told the Wife four times that chemotherapy might definitely help, that there was definitely hope but that he made no comments about continuing or discontinuing chemotherapy. The Registrant suggested that the Complainant could be admitted to hospital, temporarily if they both agreed, to help with his care, especially changing the ostomy bags and that this might help relieve the stress that the Wife was experiencing. He reviewed the Complainant s medications; the Complainant made no comment about the prescribed Nabilone, the Registrant suggested an increase to the dosage of antidepressant; encouraged fluid intake to prevent dehydration and asked them to return on a weekly basis. They did not return and did not respond to four messages he left for them over the next two weeks. [25] As to the four specific complaints, the Registrant stated that he reviewed all the medical records and blood tests which had occurred during his absence before he saw the Complainant. He did not advise the Complainant to discontinue his chemotherapy and did not suggest that the Complainant admit himself to hospital to die or suggest that
palliative care was his only option. He did offer to admit the Complainant to hospital if he and his wife agreed to help with his ostomy care to make things easier for both of them a course of action that would not have harmed the Complainant in any way or potentially cause him to die. [26] As to the complaint that the Registrant ought to have discontinued the Nabilone prescription, the Registrant noted that he did not prescribe the Nabilone and that when the Complainant saw him on November 17, 2015, he complained of nausea and a poor appetite (I understand that Nabilone is used to counteract these two symptoms) but did not comment on the prescription so the Registrant saw no need to change it. [27] Finally, the Registrant says that there was no discussion of admitting the Complainant for palliative care but only to assist with his ostomy care and relieve the couple s distress but since they declined the admission, no arrangements were made. The Registrant concluded by stating that he felt that he had an obligation to be honest with the Complainant and the Wife that there are no guarantees with chemotherapy and that he strove to provide them with a balanced view and range of opinions in response to their inquiries. [28] The Registrant s electronic medical records for the office visit of November 17, 2015, were created using a software program known as OSCA. (I note that there are obvious issues with the records which are evident to any reader. I have set out the notes, in their entirety exactly as they appear in the Record and added emphasis where there appear to be transcription problems). Documentation Date: 17-Nov-2015 [17-Nov-2015:] depression nausea weak walks with walker poor apetite citalopram 10 mg lmotil not available tecta 40 mg mane lorazepam lactobacillus psyllium nabilone k elixir we had a long discussion today about death and dying. This came to the severe shock to (Complainant) as well as cease, low partner They felt that all hope was taken away from them. I emphasized that there is a chance that (Complainant) can improve and be able to finish another 2 cycles of his chemotherapy. He has to vomit finished 4 cycles and was supposed to get 8 cycles but apparently this had been reduced to 6.
I also emphasized that there is a chance that he might not get better and that things will progressively get worse I also suggested that we cannot manage on a 2 hospitalizations too much caregiver stress (Complainant) says that he needs to change his ostomy back up to 8 times a day which takes considerable amount of time. Jones which is also being getting worse There has been a problem getting hold of lomotil (Complainant) has a PICC line o/e 100/70 patient looks anemic. There is atrophy of most muscles. There is 3+ pitting edema of both legs. Patient is using a walker to ambulate. There is no dehydration. Assessment. Colon cancer with patient losing fluid through the intestinal canal plan iv magnesium citalopram 20 mg tcb 1 week inc fluids?atropine subcut ACT CITALOPRAM 20MG 1 daily po Mitte:3 months Repeats: 3 [Signed on 17-Nov-2015 14:53 by (Registrant) (emphasis added) [29] On March 16, 2016, the Clinical Manager provided the Registrant's response to the complaint to the Complainant and the Wife. [30] On April 5, 2016, the Complainant and the Wife wrote the College a 9-page letter replying to the Registrant s letter in which they accuse the Registrant of attempting to deceive the College and of being dishonest in his recollection of the November 17, 2015 visit. They repeat their complaint that the Registrant suggested admitting the Complainant to hospital for palliative care and told them that the Complainant was dying. The Clinical Manager sent the Complainant s reply letter to the Registrant and on May 17, 2016, he acknowledged receipt of the correspondence, confirmed the accuracy of his original response and offered no further comment. [31] On May 3, 2016, the Senior Deputy Registrar wrote the local hospital and sought hospital records for the Complainant for October and November 2015. On June 15,
2016, the local hospital provided health records for the Complainant which demonstrate that he entered hospital on October 21, 2015, and was admitted from October 22, 2015, to November 14, 2015. (I note that the Complainant was prescribed Nabilone commencing October 21, 2015, and continued for the entire period of his hospitalization and on his discharge). [32] On July 6, 2016, the Wife sent an affirmed Affidavit to the Clinical Manager in which she repeated many of the original complaints and denied that she told the Registrant that she would not want to live if something happened to the Complainant. She affirms that the only reason that the Registrant suggested for admitting the Complainant to hospital was because he thought (the Complainant) s condition was deteriorating, in which case it would be easier for me if he was cared for in hospital. [33] On August 10, 2016, a Panel of the Inquiry Committee met and considered a draft disposition letter prepared by the Senior Deputy Registrar (the "Registrar"). The Inquiry Committee approved of the draft disposition letter and authorized the Registrar to send the disposition letter to the Complainant. The final disposition letter, as approved by the Inquiry Committee was dated September 2, 2016, and was sent to the Complainant. VI ADEQUACY OF THE INVESTIGATION [34] As a member of the Review Board I am well aware that the College has limited resources and many complaints that it must investigate every year. I accept that the College has the authority to manage those limited resources in a manner that is consistent with its duty to protect the public interest: Moore v. College of Physicians and Surgeons of BC and the Health Professions Review Board, 2013 BCSC 20181 at para. [119]. [35] When a person complains to the College about the conduct of one of its members, that person is entitled to expect that the College will appropriately investigate that complaint. That does not mean that a complainant may expect a perfect investigation or one that is carried out in exactly the way that the complainant would prefer; it is enough if appropriate steps were taken to obtain the key information needed to assess the complaint before the College: See, e.g., Review Board Decision No. 2015-HPA-006; see also, Review Board Decision No. 2014-HPA-200(b); 2014-HPA- 201(b). [36] An adequate investigation has been described by the Review Board commencing with Review Board Decision No. 2009-HPA-0001(a) to 0004(a) at paras. [97-98]: [97] 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. [98] The degree of diligence expected of the College - what degree of investigation was adequate in the circumstances - may well vary from complaint to complaint. Factors
such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the college will all be relevant factors in determining whether an investigation was adequate in the circumstances. [37] I agree with that definition and have applied it to this review. [38] I also accept the finding of the Supreme Court of British Columbia in Moore, supra where the Supreme Court considered the task facing the Review Board in reviewing the adequacy of an investigation and found that the matter is contextual: [105] The adequacy of any investigation must be considered relative to the matter being investigated. What might be inadequate in one case might be adequate in another. By way of a simple example a serious complaint about a physician might result in an admission by the physician of misconduct after very little investigation. Even though the investigation amounted to nothing more than drawing the complaint to the physician s attention and requesting a response, that is all that was required for an adequate investigation in that context. Conversely, an extensive investigation into a complaint might be considered inadequate where one line of inquiry was ignored or not properly pursued. [106] Thus, the nature of the complaint will inform the extent of the investigation required. [39] I have already set out the steps that the Inquiry Committee took to investigate the complaint. My task is to assess whether those steps resulted in an investigation that was "adequate" in all of the circumstances recognizing that the Complainant and his Wife would have preferred that the Inquiry Committee hold an oral hearing as part of the investigation [40] As noted above, the nature of the complaint will inform the extent of the investigation required. In this instance, the conduct complained of consisted of a single interaction between the Registrant and the Complainant and his wife at an office visit following the Complainant s discharge from a local hospital where he had been treated for more than three weeks after suffering serious diarrhea and resulting dehydration following a course of chemotherapy as part of his treatment for colorectal cancer. The complaint alleged malpractice and unethical conduct on the part of the Registrant by failing to review his notes prior to the visit, advising the couple that the Complainant was dying, suggesting that he cease chemotherapy and, if the couple agreed, the Complainant be admitted to hospital for palliative care and to relieve stress on the caregiver wife, and physically preventing the couple from comforting each other after receiving this distressing news. [41] The Complainant and the Wife allege that they have been denied procedural fairness because there was no oral hearing into the complaint and they were not afforded the right to cross-examine the Registrant. They misunderstand the nature of an investigation under the HPA. [42] I have set out the relevant provisions of the HPA earlier in this decision. The HPA provides a multi-tiered process for addressing complaints regarding the conduct of
registrants of a college. At the first stage, the Registrar is to review a written complaint and screen it to determine whether the complaint meets the criteria for dismissal under section 32(3) (a) 1, (b) 2, or (c) 3. The Registrar is entitled to dispose of complaints at this stage if he or she determines that they do not meet the criteria to be referred on to the Inquiry Committee. If the Registrar proposes to dispose of a complaint, he or she must deliver a written report to the Inquiry Committee about the circumstances of the proposed disposition and, if approved, the disposition is considered to be a disposition by the Inquiry Committee. That is what occurred here. [43] If the complaint is a serious matter, within the meaning of s.33(4) of the HPA, the matter has to move to the second stage and the Inquiry Committee must oversee the investigation and must, after the investigation, determine whether any further action needs to be taken and, if so, what that action should be. It is only at this stage that an Inquiry Committee may determine that a matter warrants a hearing before the Disciplinary Committee of the College. At this final stage, the person who is subject to discipline, i.e. the Registrant, is entitled to procedural fairness which may include the right to be represented by counsel and to test any evidence against him/her by way of cross examination of witnesses. [44] As I have already noted, a complainant has no right to direct the course of an investigation and that also means that he or she is not entitled to cross-examine a registrant. [45] In my view, by seeking the Registrant s response to the complaint, by seeking his medical records for the Complainant and the hospital records of the local hospital and by considering the submissions and supporting documentation provided by the Complainant and the Wife, the Inquiry Committee had the key information that it needed to understand the nature of the complaint and the conduct complained of in the context of the Complainant s unique circumstances. By doing so, I am satisfied that the Inquiry Committee carried out an adequate investigation. VII REASONABLENESS OF THE DISPOSITION [46] The scope of my authority under the HPA is clear; it is not for me to substitute my decision for that of the Inquiry Committee simply because I might have reached a different conclusion. Neither is it within my power to conduct a new investigation of the complaint, rather, my mandate is limited to determining whether the disposition that the Inquiry Committee arrived at was "reasonable" in the circumstances and, if it was, I am to confirm that disposition. That said, as a member of a specialized administrative tribunal, I am entitled to determine the degree of deference that it is appropriate for me 1 Section 32(3)(a) deals with complaints which are trivial, frivolous, vexatious or made in bad faith. 2 Section 32(3)(b) deals with complaints which do not include allegations which would, if admitted or proven, require investigation under s.33(4), i.e. complaints dealing with contraventions of the Act, regulations or bylaws; convictions for an indictable offence; failure to comply with a standard, limit or condition imposed under the Act; professional misconduct or unprofessional conduct; competence; or physical or mental ailment, emotional disturbance or an addiction that impairs the ability to practise the health profession. 3 Section 32(3)(c) deals with complaints which, even if admitted or proven, would constitute a matter that is not a serious matter subject to investigation under s. 33(4).
to afford the Inquiry Committee s disposition in the circumstances, bringing to bear my own expertise as an administrative decision-maker. [47] In this case, I have afforded a high degree of deference to the Inquiry Committee as the disposition deals only with the exercise of medical expertise and judgment. [48] I accept that when assessing the "reasonableness" of a disposition, I must ask myself whether the decision falls within the range of acceptable outcomes that are defensible having regard to the facts and the law: Dunsmuir v. New Brunswick 2008 SCC 9 at para. [47]. [49] The Supreme Court of Canada in Dunsmuir provided further guidance to reviewing courts (and bodies such as the Review Board) when it held that: (R)easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process: at para. [47] [50] The Review Board in Decision No. 2015-HPA-088(a) at para. [12], noted some of the key factors that should be present in a "reasonable" disposition: A reasonable disposition should be transparent (clear as to how the Inquiry Committee arrived at its conclusion), intelligible (clearly expressed, easy to understand) and justified (the reader should be able to understand the factual and legal foundation for the Inquiry Committee s conclusion). [51] The Registrar who reviewed the complaint, the Registrant's response and the hospital records is a medical doctor. The Inquiry Committee that approved of the Registrar's proposed disposition consisted of a panel of individuals including both physicians (representing various medical specialties) and public representatives. In my view, both the Registrar and the Inquiry Committee were well qualified to assess whether the Registrant s conduct on November 17, 2015, was deserving of regulatory criticism. [52] In order to be considered "reasonable", an Inquiry Committee disposition must reflect an appropriate level of investigation and be supported by the evidence before it: Review Board Decision No. 2016-HPA-143(a). [53] In this instance, the evidence before the Inquiry Committee was that, on a single occasion, the Registrant had a clinical discussion with the Complainant and the Wife, (both his patients) following the Complainant s recent discharge from hospital after a serious negative reaction to a course of chemotherapy for his Stage 3 colorectal cancer. The evidence was that when they arrived at the visit the Complainant complained of nausea and were distressed by the circumstances; they had a detailed discussion about death and dying and palliative care; the Registrant offered to admit the Complainant to hospital to help them cope but the couple declined the offer. The Registrant reviewed the medications that the Complainant had been prescribed at the time of his discharge from hospital a few days prior and did not discontinue the prescription to counteract the nausea (Nabilone) or the antidepressant (Citalopram).
[54] In their Statement of Points, the Complainant and the Wife allege that the disposition is unreasonable as it is a non sequitur ; without giving reasons, the Inquiry Committee implicitly accepted (the Registrant s) Response and rejected (the Complainants), even though that complaint is based on the two complainants accounts which corroborate each other. Further, they assert that since the Inquiry Committee gave equal weight to the evidence of the Registrant as compared to their two recollections, the Inquiry Committee demonstrated bias. [55] I do not agree. The role of the Inquiry Committee is not to act as an adjudicator in a civil action whose task it is to weigh conflicting versions of events and then prefer the evidence of one party over another. Rather it is to assess the complaint in light of the expectations of care the College has of physicians and determine whether those expectations have been met. The Inquiry Committee did just that. The allegation of bias is nothing more than a bald assertion and is completely lacking in merit. [56] The Inquiry Committee's 6-page disposition letter fairly summarized the complaint and the Registrant's response to the complaint. It then set out the information that it gleaned about the Complainant's treatment by the Registrant and others from the hospital records provided by the Local Hospital and from the medical records provided by the Registrant and the Complainant and his wife. [57] The Inquiry Committee acknowledged that the Registrant s view of the clinical discussion and the Complainant and his wife s view were nearly entirely opposite which meant that they could not adjudicate whether the communication was appropriately professional or empathetic. In my experience, that is not uncommon. It is often the case that reasonable people will recollect the same event, differently. That is even less surprising in cases, such as this, where the conversation involves death and dying and the options medically available to a patient in life challenging situations. Medical records may assist in discerning the nature of a conversation and the topics discussed but even when they are accurate and fulsome, they cannot convey nuance nor can they recreate the dynamics of a particular day. In this instance, the Registrant s medical records were of very marginal assistance given the difficulties that appear to have occurred with either voice recognition or user input of information. (I hope that the Registrant will consider how he may improve on the accuracy of his electronic notes.) The Wife s email to a friend written after seeing the Registrant on November 17, 2015, indicates her stress level and the deep concerns she had for her husband s prognosis and clearly indicates that the Registrant told them that there was a chance that the Complainant could survive and needed to take certain steps to improve his chances. [58] After recognizing the difficulty in assessing different recollections of an emotional event such as a discussion about death and dying, the Inquiry Committee noted in its disposition that the College expects that physicians will initiate difficult conversations with patients that are experiencing life-threatening situations. It follows, then, that the Inquiry Committee would not be critical of the Registrant if he initiated the conversation, as alleged, rather than engaged in a response to an inquiry from the Wife, as he recalled the sequence of events.
[59] The Inquiry Committee also noted that it is an expectation of wholesome oncology care that early offering of palliative care occur. That is exactly what the Complainant and his wife allege the Registrant did i.e. offer palliative care at an early stage. [60] Finally, the Inquiry Committee was not critical of the Registrant for not advising the Complainant to stop taking the Nabilone that was prescribed by another physician as an antidepressant given the circumstances. [61] In sum, there was a clear and logical progression to the disposition and it was written in language that a layperson could understand. [62] I see no basis to fault the Inquiry Committee's analysis or disposition of the complaint under s. 32(3)(c) of the HPA. [63] After considering all the above, I am satisfied that the Inquiry Committee's disposition was sufficiently transparent, intelligible and justifiable. In other words, it was reasonable. [64] Because I am able to conclude, based on the Record and the written submissions of the Complainant and the Wife that there was both an adequate investigation and reasonable disposition of the complaint, it would serve no useful purpose for me to order an oral hearing and I decline to do so. VIII CONCLUSION [65] For all the above reasons, I order that the Inquiry Committee s disposition of the complaint is confirmed under s. 50.6(8)(a) of the HPA. Brenda L. Edwards Brenda L. Edwards, Panel Chair Health Professions Review Board