BC Doctors, Retain Skilled Legal Counsel when Facing CPSBC Complaints

Receiving a complaint filed with the College of Physicians and Surgeons of British Columbia (the “CPSBC”) is among the most stressful challenges a BC doctor may face in their career. Trying to navigate through the complexities of the rules and procedures of the CPSBC can be intimidating and time-consuming, and an inadequate or ineffective response may expose you to unnecessary risks.

The public and your fellow medical professionals have high expectations of you and your practice, and these high expectations are reflected in the current regulatory framework. The complaint procedures are necessary to safeguard BC’s medical service. As healthcare is often a sensitive issue, the CPSBC receives about 1,200 complaints annually. Considering there are about 15,000 CPSBC registrants, it is not uncommon for a doctor to receive a few complaints throughout their career, even if they conduct themselves to a high standard at all times.

This article sets out some baseline information about what to expect if you are a BC medical practitioner facing a CPSBC disciplinary action. However, please keep in mind that we highly recommend that you obtain legal counsel as early as possible.

Taylor Janis offers tailored legal services to all professionals facing regulatory actions across BC. For legal advice, contact us at our Vancouver or Kamloops office to schedule a consultation.

The Regulatory and Disciplinary Powers of the CPSBC

The Statutory Powers of the CPSBC

Under the current Health Professions Act of British Columbia (the “HPA”), the College of Physicians and Surgeons of British Columbia is the regulatory college regulating the practice of medicine in BC, and it has statutory disciplinary powers over all BC physicians, surgeons and osteopathic physicians.

The Health Professions and Occupations Act (the “HPOA”), which received royal assent in 2022 but is not yet in full force, was introduced to reform some aspects of the regulatory regime governing health professions. One of the HPOA’s policy goals is to enhance the efficiency, transparency and accountability of the current regulatory framework with enhanced government oversight of the disciplinary processes. However, the changes introduced by the HPOA will not directly take away the CPSBC’s standing as a regulatory college, and the CPSBC will continue to exercise much of its current licensing, complaint processing and investigation powers.

Both the HPA and the HPOA confer broad regulatory powers as well as discretion to the CPSBC in terms of making bylaws, governing its own internal procedures, and investigating its registrants. Although the CPSBC is not strictly speaking a government agency, it is an administrative and regulatory body whose decisions are either legally binding alone or legally binding upon court order.

*The information provided in the article is descriptive and applicable to the current regulatory framework under the HPA and the parts of HPOA already in force, except where it is otherwise specified.

The Wide Range of Disciplinary Measures

Under the current framework, if the CPSBC makes an adverse disciplinary decision against its registrant, it might do one or a few of the following to the disciplined registrant:

• Reprimand;
• Impose limits or conditions on a doctor’s practice;
• Suspend a doctor’s registration, and potentially impose limits or conditions on the management of their practice during the suspension, or on their eligibility to apply for reinstatement.
• Cancel a doctor’s registration;
• Issue a fine up to $100,000; and
• Recover certain costs associated with the disciplinary process from the disciplined doctor.

The Reputational Damage

It is also important to bear in mind that disciplinary decisions made against doctors are put on public notifications for 10 years by the CPSBC and remain on public records indefinitely. Under the HPOA, which is expected to come fully into force soon, some CPSBC officials may disclose information regarding an ongoing complaint under public requests or for public safety reasons. This means, regardless of the severity of a disciplinary decision, its effect on a doctor’s professional reputation can be far-reaching and long-lasting.

It Is Hard to Reverse the Damage

If someone disagrees with a CPSBC Discipline Committee decision, they can appeal that decision to the Supreme Court of British Columbia within a short 30-day period after the decision is received. The appeal process is likely lengthy and complex, and a high threshold needs to be met for a decision to be successfully appealed: the disciplined appellant has the onus to prove on a balance of probabilities that the decision is biased, legally incorrect, or based on a palpable and overriding factual error. If an appeal is successful, it is possible that the decision is to be sent back to the CPSBC to be re-determined, rather than to be quashed outright.

Engage Legal Representation Early

CPSBC disciplinary decisions have legally binding effects and can critically impact your practice and professional reputation. Once it is made, it is monumentally challenging to overturn a decision.

Hence, a CPSBC complaint, investigation or hearing should be treated seriously at the earliest stage possible, ideally with the help of an experienced legal representative.

Your Duties: More Complicated Than It May Seem

Healthcare is of great importance to our society and all members within it; it should not be a surprise that the legal rules governing medical practice place a high standard of competence, professionalism and ethics on the CPSBC registrants.

The legislative and regulatory framework governing a doctor’s duties is complex and necessarily so. As a doctor who takes pride in your profession and practice, it is important for you to bear in mind that there is a multiplicity of sources of a doctor’s duties, for instance:

• A doctor and their practice should always conform to the the CPSBC Practice Standards. Some of the standards are technical (such as standards for prescribing certain medicines), some are in place to protect other public interests contemplated under the HPA (such as standards on advertising and communication with the public). These standards tend to be more white-line as they are the minimum standards that medical practitioners are obliged to observe. However, it is important to know that observing these minimum standards does not necessarily discharge all of your duties as a doctor.
• The CPSBC Professional Guidelines are the recommended best practices/course of action when professional judgement and discretion are required to practice medicine in accordance with a practitioner’s duties. These guidelines are not technically white-line rules, but falling too far below the guidelines (an unreasonable exercise of discretion) may still attract discipline.
• A doctor also has an overarching duty to practice lawfully, and this means more than just to practice with the appropriate license or to act pursuant to the HPA and HPOA. Other areas of law may also impose legal duties on you, and things can get complicated when different laws interact with each other.
  • For example, a doctor has a legal obligation under the BC Personal Information Protection Act to maintain the confidentiality of a patient’s sensitive information, but other acts concerning other overriding public interests may require disclosure, and there is also the common law public safety exception to confidentiality to consider.
• The CPSBC Bylaws not only regulate the organization and internal procedures of the college itself, but also have binding effects on the registrants and medical corporations. Some aspects of the Bylaws that are particularly impactful to your practice include those relating to accreditation, licensing, disciplinary measures and procedures, as well as your interaction with the public and the CPSBC.
• The CPSBC also endorses the Canadian Medical Association (CMA) Code of Ethics and Professionalism. The ethical and professional requirements and commitments required by this Code are broad, principled and of high standards, as the Code is formulated with public interests and the reputation of the medical profession in mind. The principled and value-based rules are often best approached through a careful analysis of past disciplinary decisions of CBSBC, not a simple or literal interpretation of the Code.
• When the new HPOA becomes fully in force, the CPSBC would likely amend its standards, guidelines and the Bylaws accordingly to conform to the requirements of the HPOA and to promote its public-interest and policy goals. This means your duties as a doctor may evolve with such changes, too.

It is difficult to commit to “professional excellence” (as required by CMA) while simultaneously training yourself to be a legal expert in the complex and evolving regulatory framework for the practice of medicine. The CPSBC does offer resources and coaching programs to help you navigate through regulatory questions as they arise, but when you are facing prospective disciplinary procedures, you should retain counsel.

What Are the Disciplinary Procedures of the CPSBC?

The Complaint

Under the HPA and the CPSBC bylaws, any person can make a complaint against a doctor to the CPSBC registrar. In fact, the HPA imposes a positive duty on CPSBC registrants to report their peers for endangering the public or certain types of serious misconduct or competence concerns. Additionally, a disciplinary process can be internally triggered because of the findings of the CPSBC’s Quality Assurance Committee.

The Investigation by Inquiry Committee

Once the CPSBC registrar receives a complaint, they must refer it to the CPSBC Inquiry Committee for investigation, unless the complaint is trivial, frivolous, vexatious or made in bad faith, or the matter lacks the gravity to trigger an investigation.

An investigation should always be treated carefully. The Inquiry Committee’s designated investigator can request a written response and/or information and records from a respondent doctor, with whom they can also have an interview. They can also inspect the premises for the respondent doctor’s premises of practice. During an investigation, you are under an obligation to cooperate, but you should be careful not to inadvertently jeopardize your case.

The Inquiry Committee can do more than investigate. During the course of the investigation, the Inquiry Committee may take actions such as requesting a respondent doctor to consent to a reprimand, directing them to undertake to take/refrain from taking certain actions, or assisting in alternative dispute resolutions (negotiating for a settlement) between the parties involved.

The investigation process can also be highly disruptive to your practice. Under exceptional circumstances, the CPSBC may place restrictions on /suspend your practice during an investigation, or apply for court orders to search for and seize evidence. Hence, when facing an investigation, it’s highly recommended that you seek and retain legal advice to minimize risk and disruption.

Discipline Committee Hearing

The hearing and procedures at the discipline committee are quasi-judicial. Depending on the nature of the complaint, the next stage of a disciplinary process might be a hearing by the Discipline Committee, and the hearing is presumed to be public. The complainant may be assisted by legal counsel, and the Discipline Committee will consider factual as well as legal/regulatory issues. Hence, your conduct and defence during the hearing not only affect the decision but also your professional reputation, and it’s your statutory right to have legal counsel by your side.

Strategically Defending against an Allegation

As discussed above, the rules regarding a medical practitioner’s duties may be complex and not always clear-cut, and the procedures can be complex and disruptive to your practice. A CPSBC Discipline Hearing is also particularly challenging to navigate because:

• The legal/regulatory findings of the CPSBC Discipline Committee can be informed by principled ethical and public-safety considerations. Exercising professional duties may also have an ethical component and require principled judgments, and the job of a medical practitioner often involves professional and on-the-spot decision-making, not just following the rules. The perspectives of a complainant might diverge significantly from a doctor’s, thus resulting in intense disputes. Skillful advocacy can help present why a particular decision was reasonable under the circumstances.
• The factual foundation of a complaint can also be intensely disputed, and ultimately, a decision should only be made upon facts substantiated by records and evidence. The rules of evidence are expectedly complex. another layer of complexity is added, considering expert evidence is often involved, and expert evidence has its own qualification, formal and procedural requirements.

Due to the public and complex nature of a hearing, it is highly recommended that you engage legal representation early and attempt to resolve a matter at the earliest stage possible.

However, when a complaint is leading a hearing, the value of legal representation becomes eminently clear, and it is still not too late to acquire legal assistance from Taylor Janis.

You Have Rights When Undergoing Disciplinary Procedures

There are legal limits as to how the CPSBC can make disciplinary decisions (a type of administrative decision) against a registrant. A registrant’s rights under these circumstances are informed by administrative law, common law, and even the Constitution, and the procedures affecting these rights are found in the HPA, the HPOA and the CPSBC Bylaws.

It is practically impossible to have a complete list of things that you are entitled to during each stage of an investigatory or disciplinary procedure, given the multiplicity of the sources of your legal right and the fact that rights can manifest themselves in many forms of procedures. But to put it broadly, a CPSBC registrant subject to an administrative decision is entitled to:

• Procedural fairness: In principle, the procedures and how it was conducted by the decision maker should enable you to know the case against you and have an opportunity to respond to and defend your case.
  • However, the exact procedural entitlements at law would vary depending on many factors (remember, the CPSBC has the discretion over many of its internal procedures). A lawyer can help flag and object to an unfair procedure.
  • Crucially, an inappropriate procedure or an appropriate procedure exercised unfairly can be legally challenged, this should again ideally be done with legal help.
• The decision makers should be free from bias. This is assessed through the standard of a reasonably informed third party observing the decision-making process.
  • If you believe your decision maker is biased, it’s not enough to simply express your grief. It is necessary to present both evidence and legal arguments to prove that bias was present. Again, a lawyer might be best equipped to deal with this.
• You can challenge the substantive fairness of CPSBC disciplinary decisions (but it’s hard!). One of the relatively unique features of the HPA is that it confers a statutory right for a recipient registrant to challenge certain decisions made by the CPSBC Discipline, Inquiry, or Registration Committees by appealing to the BC Supreme Court.
  • This means that although such decisions are binding, you can bring them to the attention of the Court and potentially receive judicial remedies.
  • The standard for an appeal to be successful is that either the fact-finding is unreasonable or the laws were applied incorrectly, as iterated in Housen v. Nikolaisen, 2002 SCC 33, and affirmed in the landmark case Vavilov, 2019 SCC 65.
  • Like any other matter before the BCSC, an appeal is a complex process. The Court is required to deference to CPSBC decisions out of respect for legislative intent, and the appellate standards are high. Hence, the appeal process should ideally be approached with the help of legal counsel.
  • Even when an appeal is successful, the case might be sent back to the CPSBC to be decided again. The implication is that it is best to address issues of rights and fairness early as they emerge.

The key takeaway is, your rights are engaged at every stage of a disciplinary process, and if your rights are infringed upon, it is difficult to correct the course. If you are concerned about the fairness of a procedure or decision, you should consider retaining legal counsel. It’s also best to retain legal counsel at the early stage, even when an investigation or discipline is only prospective, as experienced legal counsel is better equipped to spot and defend issues of rights and fairness as they emerge.

Taylor Janis Looks Forward to Assisting You

Our experienced lawyers will guide you through the complaint process, ensuring you’re well-informed and prepared for any investigation or hearing. We comprehend the complexity of regulatory body procedures and the importance of a strategically and legally sound defence, and we will do everything we can to protect your professional reputation, safeguard your long-term career and minimize the disruption to your practice.

It is highly recommended that you seek legal advice promptly when facing a CPSBC disciplinary action. Contact Taylor Janis Workplace Law today to schedule a consultation at one of our BC offices in Vancouver or Kamloops.

Frequently Asked Questions

What Are the Costs of Hiring a Lawyer for CPSBC Complaints?

Your legal fees will depend on various factors, including the legal and factual complexity of your case. You will also need to contemplate various potential additional costs, such as expert witnesses or document preparation, which can range widely. Taylor Janis Workplace Law strives to provide clear, customized plans for each client’s specific situation. Hence, the best way to have an estimation of fees is to schedule an initial consultation with us.

How Long Does a CPSBC Investigation Typically Take?

Typically, these investigations may last anywhere from a few months to over a year, depending on the complexity of the case and the evidence involved. It is best to have a lawyer assist you from the very beginning, as this may help streamline the process and minimize the disruptions to other aspects of your practice.

Can I Appeal a CPSBC Disciplinary Decision?

You can appeal a disciplinary decision made by CPSBC to the Supreme Court of British Columbia within 30 days of receiving the disciplinary decision, and once the petition is registered with the court, you need to notify all other parties involved within 14 days. The time is of the essence here, and equally important was that the petition needed to be presented in the best possible way to increase the chance of success.  Like any matter before a superior court, legal advice is strongly advised.  

What Information Should I Provide During a CPSBC Investigation?

You should provide detailed, factual and well-organized information during a CPSBC investigation in accordance with your legal, ethical and professional obligations. But first, you should consider consulting with a lawyer to make sure that you’re not inadvertently prejudicing your own case.

Do I Need a Lawyer for Minor CPSBC Complaints?

Even when a complaint is seemingly trivial or unfounded, it is still a good idea to at least talk to a lawyer first. A lawyer is equipped with the legal knowledge and research skills to assess the actual strength and gravity of a claim and can more accurately assess the potential risks. Having a lawyer on your side also shows that you are taking the situation seriously and are prepared, which may help resolve vexatious or meritless complaints early, thus minimizing the disruption and stress. If a complaint is truly unfounded, at least you get peace of mind knowing the risk is minimal after a consultation with a lawyer.

Conclusion

The CPSBC’s disciplinary decisions have legally binding effects on its registrants. The disciplinary decisions have critical, long-lasting and reputational consequences. The disciplinary procedures are complex and can be highly disruptive to your practice. Rights and fairness issues can often arise throughout the process, which in turn affects the fairness of the outcome. As a doctor, your duties are multi-sourced, and whether you have successfully discharged your duties can be intensely disputed during an investigation or a Disciplinary Committee hearing. Hence, maneuvering a CPSBC complaint alone introduces unnecessary risks to your career, practice and reputation.

Therefore, you should consider engaging experienced lawyers early, so that you are well informed of your rights and what to expect next, and you can have someone in your corner to help you with strategically defending against a complaint. This not only minimizes risks but also gives you the peace of mind to focus on your practice.

Contact Taylor Janis Workplace Law today to schedule a consultation at one of our BC offices in Vancouver or Kamloops.

References:

• Health Professions Act [RSBC 1996] Ch. 183
• Health Professions and Occupations Act [SBC 2022] Ch. 43
• Annual Report of CPSBC, 2023/2024
• BILL 36 – 2022 Health Professions and Occupations Act
• CPSBC Bylaws
• CMA Code of Ethics and Professionalism
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235

Resources:

• Past disciplinary actions published by the CPSBC
• The CPSBC’s commentary on the changes introduced by the HPOA
• CPSBC complaints process

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