Health Professions Review Board
Suite 900, 747 Fort Street
Victoria British Columbia
Telephone: 250 953-4956
Toll Free: 1-888-953-4986 (within BC)
Facsimile: 250 953-3195
Mailing Address:
PO 9429 STN PROV GOVT
Victoria BC V8W 9V1
Website: www.hprb.gov.bc.ca
Email: [email protected]
DECISION NO. 2014-HPA-021(a)
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 Occupational Therapists of BC
AND:
An Occupational Therapist
BEFORE:
A Panel of the Health Professions Review Board
COLLEGE
REGISTRANT
REVIEW BOARD
John O’Fee
DATE:
Conducted by way of written submissions concluding on
August 18, 2014
APPEARING:
For the Complainant:
I
Self-represented
STAGE 1 OR STAGE 2
[1]
This complaint has been referred to a Stage 1 hearing. At this stage the
following results are possible:
(a) I may confirm the Inquiry Committee disposition under s. 50.6(8)(a) of the Act
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) 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]
In a Stage 1 hearing my review of the Inquiry Committee’s disposition will be
based solely on the record of investigation provided by the College and submissions
from the Complainant.
DECISION NO. 2014-HPA-021(a)
II
Page 2
INTRODUCTION AND BACKGROUND
[3]
The Complainant applied under s. 50.6 of the Act to review a disposition of the
Registrar dated January 9, 2014 representing the Inquiry Committee which was
communicated to the Complainant in a letter signed by the Registrar on behalf of the
Inquiry Committee.
[4]
The Complainant and the Registrant have conflicting versions of the facts,
particularly as they relate to statements made and positions taken by each towards the
other. Both the Registrant and the Complainant accuse the other of confrontational and
threatening behavior in relation to the course of treatment and assessment undertaken
as a result of the Complainant’s injuries.
[5]
From a purely medical perspective, there is no debate that the Complainant
suffered a head injury on June 22, 2011 while at work. As a result she engaged in
process of rehabilitation and assessment. The Registrant’s assessment of the
Complainant’s injuries was worded in a fashion from which it could be implied that the
Complainant was exaggerating her injuries or malingering. It could also have been
viewed as the Registrant not understanding why the Complainant was suffering to the
degree she was. In any event, subsequent medical diagnosis supported the
Complainant’s submission that her condition was not as the Registrant had initially
assessed.
[6]
In addition, the Complainant pointed out that the Registrant did not properly
reference medical information he had been provided with and used medical information
outside of its proper context in making a diagnosis about the Complainant being fit to
return to work.
[7]
On February 19, 2013, the College engaged the services of an Occupational
Therapist serving as an independent investigator to review the substance of this
complaint and provide a report to the Inquiry Committee. This report, dated
May 2, 2013, reviewed the substance of the complaint in detail and was considered by
the Inquiry Committee in determining the appropriateness of the Registrant’s conduct
regarding this matter.
[8]
In her report, the independent investigator summarized the complaints against
the Registrant as follows:
(a) The Registrant engaged in unprofessional conduct by bullying and yelling at
the Complainant;
(b) The Registrant conducted an inappropriate and inadequate assessment and
treatment of the Complainant; and,
(c) The Registrant provided erroneous information to WorkSafeBC.
[9]
The investigator turned her attention to the substance of each complaint and
concluded as follows:
DECISION NO. 2014-HPA-021(a)
Page 3
(a) It was clear that there was a confrontation between the Registrant and the
Complainant. A separate patient within the same treatment program provided
evidence to the investigator confirming that there was a verbal altercation
between the parties on at least one occasion. However, this witness was in a
separate room and only observed matters through a window. As such, she
could offer no details as to what was said by whom. The investigator further
concluded through patient interviews that there was some dissatisfaction to
the approach taken by the clinic generally;
(b) The process of assessment was inadequate and perhaps lacked a proper
liaison with other medical professionals associated with a patient’s care.
The treatment objectives were not clearly stated, defined or properly
quantified; and
(c) There were omissions in the Registrant’s report that did not provide complete
medical information in an appropriate context.
[10] The Inquiry Committee considered this report and other information submitted by
both the Registrant and the Complainant. In its disposition of this complaint the
Registrant was reprimanded and agreed to the filing of a consent order against him
including the following provisions:
(1) He was not to provide occupational therapy assessment reports that were not
properly qualified as to the scope of their limitations and the sources of
information upon which they are based;
(2) He was not to repeat the conduct of providing occupational therapy
assessment reports which did not identify the standardized assessments and
analysis of scores on assessments when used to form the opinions contained
in a report;
(3) He was to review all reports concerning the Complainant and provide
addendum reports to WorkSafeBC within 30 days in which he provided
complete and accurate recitation of the conclusions from the written reports of
the two physicians treating the Complainant;
(4) He was, respecting future clients, to undertake to explain the role of each of
the members of a multi-disciplinary team involved in the client’s care, their
particular responsibilities and his role and responsibilities. Further, he was to
document on the clinical record that he provided each client with this
information;
(5) He was to agree that any contravention of any term of the Consent Order
constituted professional misconduct; and
(6) The Consent Order would form part of the professional record of the
Registrant and would be considered in any future matters concerning the
Registrant and the College.
DECISION NO. 2014-HPA-021(a)
Page 4
[11] The Complainant submits that this disposition by the Inquiry Committee is
unreasonable and based upon an inadequate investigation. She states that her
complaint should have been investigated in more detail and cross referenced with a
separate complaint filed against a different registrant in the same clinic. The
Complainant further states that the Registrant’s letter to the Inquiry Committee
complaining about the independent investigator that was appointed and the witness
interviewed by the investigator potentially amounted to an attempt by the Registrant to
intimidate the Inquiry Committee.
[12] To support her submission, the Complainant lists a number of items she feels
were not properly considered by the Inquiry Committee and reasons why she feels the
Registrant should be dealt with more severely. The Complainant suggests: a
combination of nine additional investigations and disciplinary actions be taken against
the Registrant including five years of monitoring; maximum reprimands for what she
describes as falsifying a medical report; having the Registrant write an essay on “the
reason the Colleges make up guide lines and Code of Ethics so he learns them”; and
having the Registrant take an anger management course and then give a speech to a
future Occupational Therapist seminar on the importance of proper assessments.
III
ISSUES
[13] As this application is brought pursuant to s. 50.6(1) of the Act, my role is to
review the disposition of a matter by an Inquiry Committee. Upon receipt of such
application for review the review board is bound by s. 50.6(5) which reads as follows:
50.6
(5)
On receipt of an application under ss. (1), the review board must conduct
a review of the disposition and must consider one or both of the following:
(a) the adequacy of the investigation conducted respecting the complaint;
(b) the reasonableness of the disposition.
[14] As such, my focus is the process used by Inquiry Committees when they respond
to a given complaint. I am to decide whether or not the Inquiry Committee in this
instance adequately investigated and reasonably disposed of the issues raised by the
Complainant.
IV
THE ADEQUACY OF THE INVESTIGATION
[15] Many Review Board members start with Review Board Decision No. 2009-HPA0001(a) to 0004(a) because it sets a clear tone and guideline for the role of a panel
chair. At paragraphs [97] and [98] it states:
[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
DECISION NO. 2014-HPA-021(a)
Page 5
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.
[16] I also receive guidance from Review Board Decision No. 2013-HPA-010(a)
where the panel chair states at paragraph [18]:
[18] The standard required for the investigation is adequacy, not perfection
with the level of diligence varying based on the circumstances. The standard for
the disposition is an outcome falling within the range of reasonable outcomes.
[17] The medical evidence is clear that the Complainant suffered a head injury while
at work. This involved a difficult recovery and rehabilitation process. Her complaint
concerning the Registrant was taken seriously as evidenced by the decision of the
College to retain an independent investigator to review matters of concern.
[18] The Complainant submits that this complaint should be cross referenced with a
separate complaint against another Registrant in the same clinic. This second
registrant was involved in a mediation attempt between the Complainant and the
Registrant. Having reviewed both files, I do not agree with the Complainant that the
investigation of this complaint is related to the conduct of the second registrant. The
result of the independent investigation and the focus of the consent order was on the
Registrant and his practice, not the alleged conduct of a separate registrant who
provided no reports and was not directly involved in the Complainant’s care. I will be
dealing with the complaint against the second registrant as a separate matter in a
separate decision.
[19] The Inquiry Committee sought and received full responses from the Registrant
and engaged the services of an independent expert. The report of the expert revealed
that the Registrant was not meeting expected standards in several ways which in turn
resulted in a remedial consent order directing changes in the Registrant’s practices.
[20] It is clear to me that the Inquiry Committee took significant steps to properly
investigate this complaint. The allegations made by the Complainant were serious and
the response of the Committee was equally serious. I find that the investigation was
adequate.
DECISION NO. 2014-HPA-021(a)
V
Page 6
THE REASONABLENESS OF THE DISPOSITION
[21] The Complainant has invested significant time and effort outlining the nature of
her complaint. She was an active and engaged participant in the complaint process
and submitted a great deal of material in support of her position.
[22] In some respects her complaints were validated by the independent investigator
in terms of some of the conduct of the Registrant. While there is no way to know for
certain exactly what transpired in direct meetings between the Complainant and the
Registrant, it is not necessary for me to make findings of credibility in order to
determine the reasonableness of the Inquiry Committee’s disposition of this complaint.
[23] Returning to Review Board Decision No. 2009-HPA-0001(a) to 0004(a), at
paragraph [92] the panel chair states:
While Review Board’s application of the test will necessarily reflect its expertise as a
specialized administrative tribunal rather than a Court, 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.
[24] The Complainant asserts the Registrant should face consequences beyond
those determined by the Inquiry Committee. Some of her suggested actions are neither
appropriate nor within the jurisdiction of the Inquiry Committee to order.
[25] At the same time, the Inquiry Committee raised serious issues that required
serious, remedial solutions. The consent order outlines specific practice changes
required to be instituted by the Registrant and significant consequences if those
changes are not made.
[26] The notion of proportionality has been applied in considering the adequacy of an
investigation. In Review Board Decision No. 2010-HPA-0150(c) at paragraph [29] the
panel chair states:
Counsel for the Registrant, in support of the adequacy of the investigation, properly in
my view, made the argument of proportionality in terms of the time and resources the
investigation took juxtaposed against the nature of the complaints and the desire for
finality.
[27] Proportionality can also be applied in considering the reasonableness of an
Inquiry Committee’s disposition of a matter. The investigation revealed shortcomings in
the practice of the Registrant that needed to be promptly remedied. There was clearly a
failure to adequately document any initial assessments, provide thorough information to
clients, and properly reference medical reports. In my view the Inquiry Committee
applied a reasonable and proportionate response to these issues while making it clear
that further problems in this regard would have more significant consequences.
DECISION NO. 2014-HPA-021(a)
Page 7
[28] I find that the Inquiry Committee’s serious consideration and meaningful
disposition of this complaint falls within the range of acceptable and rational solutions
that are reasonable with respect to the facts and the law.
VI
DECISION
[29] The Inquiry Committee availed itself of the key information on which to base its
disposition. It fulfilled its duty to investigate the complaint adequately. Similarly it has
delivered a reasonable disposition.
[30] I find that this application for review can be fairly, properly and finally adjudicated
on the merits without the need for submissions from the College or Registrant. The
decision of the Inquiry Committee to dispose of the complaint is supported by its
analysis of the evidence. For the reasons outlined above I dismiss the application for
review and confirm the disposition of the Inquiry Committee.
[31] In making this decision I have considered all of the information and submissions
before me whether or not I have specifically referenced them.
“John H. O’Fee”
John H. O’Fee, Panel Chair
Health Professions Review Board
December 16, 2014