An effective quality assurance program must operate in a bubble of confidentiality. To ensure full and candid participation by registrants, registrants need to be confident that information they disclose through the quality assurance process will not end up being used against them in a discipline hearing or a civil lawsuit. Most statutes provide strong confidentiality protections for quality assurance information.
However, does that assurance of protection also apply to the regulator? In Madryga v College of Physicians and Surgeons of British Columbia, 2025 BCSC 728 (CanLII), the Court’s answer was: not always. A patient with permanent, painful injuries had been receiving high doses of opioids for decades. He was fully compliant with the treatment protocols and all indications were that he was not misusing the medication. As part of its quality assurance activities, the regulator developed a Prescription Review Program (PRP) to reduce the harm to the public from opioids. As a result of the PRP, the patient’s physicians reduced the patient’s prescriptions for opioids, telling the patient that their registration was otherwise in jeopardy. The patient sued the regulator for improperly inserting itself into the medical care he was receiving from his physicians.
The issue before the Court was whether the patient could obtain the communications between the regulator and his physicians to establish the extent of the College’s interference in his care. The regulator refused, pointing to very broadly worded confidentiality provisions in the regulator’s governing legislation. The Court agreed that those provisions provided a blanket prohibition preventing access to the records. The provisions could not be interpreted to only protect the information from being used against the physicians.
However, the Court found that the blanket prohibition was contrary to the role of the courts guaranteed under section 96 of the Canadian constitution. The patient was challenging whether the PRP went beyond the scope of the regulator’s governing legislation. The patient was alleging that rather than protecting the public by regulating physicians, the regulator was using the PRP to direct the care of an individual patient, thereby depriving him of his right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms. The Court could not rule on that argument without seeing the communications between the regulator and the patient’s physicians. As a result, the Court overrode the confidentiality provisions to a limited extent so as to require disclosure of the relevant documents.
Once the documents are disclosed, the Court will be able to adjudicate on the ultimate issues of whether the regulator exceeded its jurisdiction in respect of the patient’s care and whether the regulator’s conduct deprived the patient of his right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
The decision leaves the confidentiality bubble intact for the physicians, but not always for the regulator.