Reviewing the Prior History of a Practitioner in Complaints Matters

In complaints matters it is common, but not universal, that the prior complaints and discipline history of the practitioner will be reviewed. However, the weight to be placed on that prior history will vary. In College of Physicians and Surgeons of British Columbia v The Health Professions Review Board, 2019 BCSC 539, <http://canlii.ca/t/hzpm3>, the practitioner had been disciplined for sexual misconduct a dozen years previously. The current complaint related to a failure to recognize a clinical condition. The screening committee did not consider the practitioner’s prior history. The Review Board found this failure to be unreasonable and returned the matter for a new decision. The Court disagreed and noted that the screening committee had discretion to consider prior decisions (the governing legislation did not mandate that prior decisions be reviewed):

The College had the discretion to make a finding on the degree of similarity, if any, between Dr. Fletcher’s sexual misconduct in 2003 and clinical conduct matters in 2015. The 2003 Admonition was regarding Dr. Fletcher’s personal relationship with a patient, which is substantially different than the clinical performance issues involved with the Complaint, except in the broadest sense that both events are breaches of professional standards. The two are not similar in time, type of conduct, context, or the standards breached.

The Court concluded that the Review Board had not assessed whether the screening committee acted reasonably in the circumstances. Rather, the Review Board inappropriately substituted its views for those of the regulator. The Court sent the matter back to the Review Board for a new decision.

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