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Complaints - Medical Professionals (RHPA). Schuur v Sas [psychologists]
In Schuur v Sas (Div Court, 2023) the Divisional Court considered a judicial review of an HSARB disclosure order to only release a heavily redacted ICRC ['Inquiries, Complaints, and Reports Committee'] record of a complaint to the College of Psychologists.
In these quotes the court held that the interests at stake for a complainant are less that those for a professional, here a psychologist::iii. The Disclosure Order and Motion to Vary
[16] On 9 March 2020, the Applicant requested a review of the ICRC decision by the HPARB. In her request, the Applicant alleged deficiencies in the ICRC’s information gathering process and complained that she had never received a copy of Dr. Sas’s response to the complaint.
[17] On 24 February 2021, the HPARB made a disclosure order with respect to the ICRC’s Record of Investigation and any other documents the ICRC utilized in making its decision to the parties to the review. However, the HPARB ordered that pursuant to s. 32(3) of the Health Professions Procedural Code (being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) (the “Code”), the Applicant was only entitled to a redacted version of the record containing approximately 92 unredacted pages of a total of 2,464 pages. The HPARB’s Disclosure Order noted that the redacted pages contained the personal health information of people not party of the complaint review process, and no consent was received to release the information. The relevant personal health information included that of the Applicant’s two children.
[18] Section 32(3)(c) of the Code provides:Exceptions
(3) The Board may refuse to disclose anything that may, in its opinion,
...
(c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made; [19] The HPARB found that the confidentiality interests of the persons affected by disclosing their personal health information outweighed the desirability of adhering to the principle that full disclosure be made.
[20] On 5 April 2021, the Applicant provided the HPARB with signed consents for the release of the personal health information of her minor children. The HPARB did not change its position.
[21] On 5 May 2021, the Applicant filed a motion to vary the Disclosure Order and asked that the Record of Investigation be reproduced to her without the redactions, including the three USB keys that had documents/media the ICRC used in its determinations. Dr. Sas opposed the motion. The HPARB declined to vary or set aside the Disclosure Order because of the privacy interests of the children, and because the Record of Investigation contains court materials. Mitrow J. had issued endorsements restricting the Applicant’s access to litigation materials, as well as limiting Dr. Sas’s involvement in the family law litigation. The HPARB found the motion to vary was an attempt to obtain the documents which were specifically restricted by the court. Dr. Sas will be called to testify in the Applicant and her ex-partner’s four-year family litigation, and the HPARB found the proper forum to contest the findings of Dr. Sas was in court.
....
[23] The HPARB found that the investigation need not be exhaustive to be adequate. The Applicant argued that she should have been provided with Dr. Sas’s response and that she should have been able to respond to it. The HPARB rejected this and noted that the procedural fairness owed to a complainant is more limited than that owed to the regulated health professional under investigation. The ICRC is required to provide a certain minimum disclosure to a complainant. Beyond that, the ICRC has discretion in ordering disclosure as circumscribed by s. 32. The HPARB was not persuaded that the ICRC would have come to a different conclusion had it received the Applicant’s comments about Dr. Sas’s response. The HPARB determined the decision was reasonable as the ICRC considered the materials before it, applied its own knowledge relating to the standards of the profession and applied its own expertise to interpret the Record.
....
[34] It is well recognized that under s. 32(3) of the Code, the HPARB has differing disclosure obligations as between complainants and members being investigated. The disclosure obligation to a complainant is lower than that to the member complained about. The complainant is not at risk of the loss of any profession or occupation, nor is his right to bring an action for malpractice affected in any way. Because the stakes for the complainant are very low, the disclosure duty to him or her is commensurately low, subject to the other factors in Baker (see Walker, at paras. 14-16; Silverthorne, at para. 13).
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