The BC Supreme Court found the Health Professions Review Board (“HPRB”) committed a reviewable error in the exercise of its statutory powers in relation to the adequacy of a regulatory body’s investigation and reasonableness of its decision.

[2016] B.C.J. No. 884

2016 BCSC 391

British Columbia Supreme Court

March 7, 2016

J.M.I. Duncan J.

Ms. Homma initiated a complaint to the College of Chiropractors of British Columbia regarding the treatment she received from Dr. So, a chiropractor. She received treatment in 2011 with respect to her left ankle, and left hip pain. She was critical of Dr. So alleging, amongst other things, that: he performed a left ankle adjustment without first examining her ankle, she sustained injury to her left hip after her initial visit, he conducted unnecessary right hip and right pelvis manipulations without consent which resulted in injury to her right hip.

Dr. So denied the allegations. He maintained that his treatments did not cause the injuries alleged. Copies of his clinical records accompanied his response.

The College reviewed the matter and provided Ms. Homma with a brief letter explaining that it investigated the complaint but determined to take no further action. Ms. Homma then sought a review of the College’s disposition to the Health Professions Review Board ("HPRB"). The College subsequently provided her with a more detailed explanation of its decision to take no further action. The second disposition addressed each of her allegations. The College found it inconceivable that Dr. So would have known to perform the particular mobilization he did on her ankle without conducting an ankle examination. The College also explained that chiropractors do not just treat symptoms and that treating a joint restriction that may not be causing pain or other symptoms is a clinical decision for the chiropractor. The College also found that informed consent had been provided. Regarding the allegations of sustained injury, the College noted that it does not fall within the Inquiry Committee’s mandate to determine whether the chiropractor caused a patient’s injury; the appropriate forum to pursue such questions of causation and compensation is through the courts.

The chair of the HPRB reviewed the matter and remitted the matter back to the Inquiry Committee for direction. The HPRB found the College’s investigation inadequate because additional documentation from other health care professionals who treated Ms. Homma following her treatment by Dr. So was not obtained. The HPRB also found that the Committee “too readily” adopted the statements of Dr. So and therefore the complaint was dismissed without adequate investigation. The HPRB also opined that the disposition was unreasonable given that the complaint was dismissed without obtaining evidence from other sources. The HPRB directed that the matter be remitted back to the Committee with directions to: (i) obtain information from the other medical professionals who treated Ms. Homma for their assessment of her injury, and (ii) obtain and review information form Dr. So regarding his expertise to assess and treat patients with symptoms of the type presented by Ms. Homma.

The College sought judicial review of the HPRB decision. The parties agreed that the standard of review was patent unreasonableness. The Court found that the HPRB’s decision was patently unreasonable for a number of reasons.

Regarding the adequacy of the College’s investigation, the Court found that the College did consider the appropriateness of treatment in both of its letters. With respect to the issue of credibility, the Court rejected the HPRB’s finding that the College only considered information provided by Dr. So because it did not review evidence of Ms. Homma’s treatment by other health care professionals. The Court noted that there is a difference between critically evaluating evidence and determining matters of credibility and that in this case, the College had the complainant and registrant’s version of events, and considered both before making its determination. The Court found that requiring something beyond this, with some form of cross examination, is beyond the College’s legislative scope.

The Court also found that the issue of failing to consider information from other health professionals is intertwined with the credibility issue. The Court agreed with the College that it was difficult to conceive what the College could do with such evidence within its statutory mandate, noting that such evidence might be relevant to causation in a civil lawsuit, but that the opinion of other health care practitioners commenting that the chiropractic treatment caused a patient’s injury would not resolve the issues the College had to examine.

Regarding the reasonableness of the HPRB decision, the Court held that the HPRB’s criticism of the College’s failure to obtain collateral evidence falls more properly under the adequacy of the investigation heading. With respect to the HPRB’s finding that the College’s disposition was unreasonable because the College characterized and dismissed the complaint as a civil matter, the Court held at para. 98 that “Characterizing the dismissal of the complaint as a civil matter falls squarely within the question of whether the disposition was reasonable….To find that the complaint was dismissed as a civil matter does not take into account what the Inquiry Committee examined, what it concluded and whether the disposition was reasonable.”

The Court found the HPRB committed a reviewable error and therefore set aside the HPRB’s decision.