CHCPBC Discipline? Skilled Legal Representation for Health and Care Professionals in BC

The regulatory landscape for specialist health and care professions in BC has seen significant changes over the last few years, with seven legacy regulatory colleges amalgamated into the College of Health and Care Professionals of BC (the “CHCPBC” or the “College”) by ministerial order in June 2024. Moreover, the regulatory framework is expected to undergo further reforms when the Health Professions and Occupations Act comes into full force. It is fair to say that the regulatory landscape has been in flux and will remain so for a while.

If you are regulated by the CHCPBC, understanding the role and powers of your regulatory body is vital. If you are under its disciplinary scrutiny, it becomes even more crucial that you take a proactive approach to get informed about the potential consequences, the disciplinary procedures and your administrative law rights, and then be prepared to strategically defend against a complaint.

This article provides some essential information about CHCPBC regulatory actions, but it is for informational purposes only. If you have any concerns about an impending or ongoing regulatory action, you can contact Taylor Janis Workplace Law at our Vancouver or Kamloops office for legal support.

Understanding the CHCPBC

Who/ What Does the CHPBC Regulate?

The College of Health and Care Professionals of BC oversees and regulates professionals in nine specialist health and care professions, including registered audiologists, dietitians, hearing instrument practitioners, occupational therapists, opticians, optometrists, physical therapists, psychologists, and speech-language pathologists (collectively, the “registrants”).

The College is responsible for setting and enforcing standards of practice, ensuring that professionals in these fields meet the necessary qualifications and conduct themselves in accordance with ethical and professional guidelines.

What Kind of Authority Does the CHCPBC Have?

Under the current Health Professions Act of British Columbia (the “HPA”), the CHCPBC has statutory disciplinary powers over all practitioners of its nine regulated professions.

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 frameword governing health professions in BC. The HPOA, even when it is in full force, will not take away the CHCPBC’s standing as a regulatory college, and the College will retain and continue to exercise much of its current regulatory powers in relation to licensing, complaint processing and investigation.

Both the HPA and the HPOA confer broad regulatory and disciplinary powers as well as discretion to the CHCPBC in terms of making bylaws as well as governing its registrants and internal procedures. Although the College is not strictly speaking a government agency, it is an administrative and regulatory body whose decisions have legally binding effects.

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

What Are the Disciplinary Measures Available to the CHCPBC?

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

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

The Damaging Effects of CHCPBC Discipline

CHCPBC Discipline can severely impact a registrant’s finances and their practice. A suspension or cancellation of your license can be career-threatening, and even a seemingly lesser discipline measure, such as a condition placed on your practice, can be highly disruptive.

Furthermore, being disciplined can result in widespread and irrecoverable reputational damage, as adverse disciplinary decisions made by the College’s Discipline Committee must be put on public notice under the HPA. A disciplinary record may also affect your ability to register with regulators in other jurisdictions.

The Importance of Legal Representation

Considering the legally binding effects of CHCPBC discipline and its potential financial, career, and reputational impacts, you should retain legal representation when expecting or undergoing a disciplinary process.

Our strong recommendation is that you choose legal counsel who is experienced in regulatory actions. This is because a robust defence strategy often requires both a comprehensive understanding of applicable legal rules and factual circumstances, as well as resourceful and tenacious advocacy. Please read on if you would like to know about defending against a complaint.

Defending against a Complaint

When you are exposed to the risk of being disciplined by the CHCPBC, how you respond to a complaint can be crucial in shaping the outcome. You need a strategic and robust defence, which often requires legal expertise, a strong evidentiary base, as well as resourceful advocacy.

Know the rules

The legislative and regulatory regime governing care and health professionals is complex and necessarily so. As a CHCPBC registrant, it is important to bear in mind that the rules applicable to you are multi-sourced, intricate and often nuanced:

• Under the HPA, disciplinable conduct includes unprofessional conduct, professional misconduct, incompetent practice and non-compliance with the HPA, its accompanying regulations, the Bylaws and the standards established by the College. Moreover, significant impairments to a registrant’s ability to practice may also affect their professional standing.
  • The CHCPBC Bylaws not only regulate the internal affairs of the College, but also have binding effects on its registrants. Particularly important to a registrant are the provisions regarding accreditation, licensing, discipline and your communications with the public and the College.
  • The Code of Ethics or Code of Conduct of your respective profession contain broad and principled ethical, professionalism and competence requirements, and to discharge these duties may also require you to follow more technical guidelines published by the College.
  • Professional misconduct is a broad concept that includes sexual misconduct, unethical conduct, infamous conduct and conduct unbecoming a member of the care and health profession.
• A care and health professional, like anyone else, has to act lawfully in general at all times.
  • When different rules interact with each other, things can get profoundly intricate. Correspondingly, the College might have to take into account common law rules and other legislation when adjudicating a matter.
  • For example, you have an ethical and professional duty to put your client’s well-being first when providing care, but often a treatment plan may come with inherent risks. When assessing such risks, the degree of care required may be assessed with reference to common law and regulatory decision precedents.

Care and health professionals have demanding careers. It would be challenging for them to comprehensively research all the applicable legal rules while simultaneously committing to their professions. When facing regulatory challenges, you should bring your legal questions to a lawyer.

The Facts May Be Intensely Disputed

A disciplinary decision is based on facts, and facts are inferred through the relative strength of competing evidence. During a disciplinary procedure, the perspectives of the parties involved often diverge, and facts are often intensely contentious. Thus, you should bear in mind that:

• The strength of your evidence is assessed relative to the competing evidence, especially at a hearing. This means organization, presentation, and highlighting legal and factual connections to the matters concerned are often crucial in preparing an effective evidence package.
• Evidence has to conform to certain requirements to be admissible, and pieces of evidence are unequal in their reliability, factual relevance and legal materiality. A lawyer can leverage their legal acumen to highlight key evidence and advocate for the exclusion of unduly prejudicial or unreliable competing evidence; these can be instrumental in advancing a robust factual position.

The Importance of Skilled Advocacy

As discussed above, the rules are complex, and supporting facts with evidence is an acquired skill. Having a skilled lawyer as your advocate can be an indispensable asset because they can highlight factual and legal factors that might otherwise be under-considered by the decision makers. For example, a psychologist has a duty to provide unbiased and objective professional opinions, but the objectivity of an opinion is difficult to assess without a full-picture analysis of the entire circumstances surrounding the psychologist-client relationship. A skilled advocate can resourcefully cite legal precedents and highlight key factual factors, thus enhancing the chance of a desirable outcome.

Having legal representation is instrumental not only in having a robust defence but also in navigating the complex and stressful disciplinary procedures. Please read on if you would like to know more about the CHCPBC disciplinary process.

Disciplinary Process Explained

The first thing to know about the CHCPBC’s disciplinary process is that disciplinary actions can arise without a complaint, and complaints do not necessarily need to come from a patient.

Under the HPA, any person can file a complaint with the CHCPBC against its registrants. Moreover, the college’s registrants have a positive duty to report their peers for endangering the public or sexual misconduct. Furthermore, if it is deemed necessary to protect the public, a disciplinary process can stem from the College’s quality assurance programs, as if a complaint has been received.

Once the College’s registrar receives a complaint, they must refer it to the Inquiry Committee, unless they have determined that the complaint is trivial, frivolous, vexatious or made in bad faith, or the matter lacks the gravity to trigger an investigation.

The Investigation by Inquiry Committee

Under the HPA, the Inquiry Committee must investigate a matter referred to it as soon as possible.

An investigation can be highly intrusive to a registrant’s practice or even personal life, during which the investigated registrant has a legal obligation to cooperate. The Inquiry Committee has broad investigatory powers and can direct an inspector to:

• Require and retain information, records and/or certain physical evidence from the investigated registrant;
• Require the investigated registrant to answer questions and/or to be interviewed; and
• Inspect the investigated registrant’s premises for practice.

Under certain circumstances, the Inquiry Committee may also:

• Authorize a person to apply for a court order, thus to expand the investigatory power to search other premises and/or to seize other evidence; or
• Place restrictions on /suspend the investigated registrant’s practice during an investigation for the protection of the public.
  • A restriction, condition or suspension imposed on a registrant’s practice will be put on public notice, thus resulting in severe reputational damage even before a final disciplinary decision is reached.

Being investigated can be a highly intimidating experience, as failure to cooperate can attract further discipline, and you need to avoid inadvertently jeopardizing your own case.

Discipline Committee Hearing

After an investigation, an unresolved complaint will be referred to the Discipline Committee for a hearing. A hearing can be a highly challenging, intimidating and consequential procedure. This is for a few reasons:

• A hearing is quasi-judicial, and the contentions can be intense:
  • The parties (the College vs. the respondent registrant) both have a statutory right to legal representation, and a complainant may be represented by counsel if they are presenting evidence.
  • A hearing is a highly adversarial procedure, meaning both the legal and factual contentions are usually intense, and decisions are made on the relative strength of the parties’ positions, hence requiring extensive preparation and strategic planning.
• A respondent registrant may be ordered to testify or disclose records:
  • A court order may be obtained against you if you do not cooperate, resulting in severe legal consequences.
  • You should also be careful not to inadvertently prejudice your own case when being examined as a witness (intensely scrutinized with questions).
• You have to prepare for a hearing under intense time limits:
  • The procedures leading up to a hearing are complex and may be subject to strict deadlines. While a hearing is pending, you have to disclose evidence in a timely manner, and you might be directed to attend pre-hearing conferences.
  • Under the HPA, a hearing citation may be delivered to you as late as 30 days before the date of the hearing, and the date, time and place of the hearing may be provided with as little as 14 days’ notice.
• The procedures can emit profound reputational harm:
  • Hearing citations must be published, and hearings are presumptively open to the public. Therefore, severe reputational harm may occur even before a decision is made, especially if a respondent registrant is underprepared or acts in ways that prejudice themselves during a hearing.

A hearing is intense and highly consequential; hence, our strongest recommendation is that to exercise your statutory right to counsel if a complaint is pending hearing.

Alternative Resolutions

There will usually be opportunities for an investigated registrant to resolve a matter without going through the entire hearing process. However, alternative resolutions should be evaluated carefully and strategically, ideally with legal advice.

• During an investigation, the Inquiry Committee may facilitate voluntary resolution between the complainant and the investigated registrant, and it may also request the registrant to consent to a reprimand or to undertake certain actions (known as a reprimand or remedial action by consent).
• An investigated registrant can also propose to the Inquiry Committee for a consent order by admitting to certain alleged facts and proposing discipline orders against them. Such proposals may or may not be accepted.

However, you should think carefully and strategically before reaching out for an alternative resolution, and ideally only do this with legal advice. There are a few reasons for this:

• A settlement or resolution by consent is normally legally binding, so you should take into consideration the applicable legal rules and the factual circumstances and only agree to what is fair and reasonable.
• A reprimand or remedial action by consent, or a consent order, can be seen as a form of admission to at least some of the alleged facts, which will substantially foreclose an appeal on factual error grounds.
• An alternative resolution can result in severe reputational damage:
  • A consent order must be published, as it is considered to be equivalent to a discipline order.
  • A remedial action by consent related to a serious matter will be published. (A serious matter includes any matter that would normally attract sanctions more than just a reprimand or fine. )

Therefore, although alternative resolutions do have certain advantages in the right circumstances, they are not to be entered hastily. If you are weighing such options, you should have a lawyer thoroughly review your case first.

Early Legal Representation Is Key

When undergoing a CHCPBC disciplinary process, you should not leave legal representation to the last minute, as even the early stages can be highly disruptive, stressful, and consequential. Throughout the process, you should remain vigilant of legal pitfalls and respond diligently and strategically. Contact Taylor Janis Workplace Law today to discuss your situation if you have any concerns about an impending or ongoing procedure.

Another reason for engaging legal representation early is that, from the outset, every procedure engages your rights. Please read on if you would like to know more.

Protect Your Rights

When being subject to the CHCPBC’s disciplinary discretion, it is crucial that you are informed about your common law and administrative law rights, as safeguarding your rights is integral to achieving a fair outcome.

Knowing Your Rights

Your rights are ultimately about fairness, and they can be put into three broad but distinct categories. Below is a short summary of these rights and the standards against which a court will assess whether a right has been infringed:

• The right to an unbiased decision maker:
  • This right is infringed if a decision or decision-making process raises a reasonable apprehension of bias to an informed third person observing the entire circumstance.
  • Alleged bias must be substantiated with evidence to meet the high legal and factual thresholds: remember, reasonable apprehension of bias is not “any apprehension of bias”.
• The right to procedural fairness:
  • Broadly speaking, you have a right to “know the case against you and make full answer and defence”.
  • This right is infringed if there is a lack of due process or when due process is conducted unfairly.
• The right to substantive fairness:
  • This means the decision must meet certain standards in its fact-finding and legal reasoning.
  • Under the HPA, a registrant can appeal a CHCPBC discipline order to the BC Supreme Court, where an impugned decision is assessed by the appellate standards as if it was made by a lower court.
  • Hence, the standards are that a decision must not contain “palpable and overriding error” in factual reasoning, and its legal reasoning must be correct, as iterated in the Supreme Court of Canada decision Housen.

It is not a simple task to safeguard one’s rights, however. The legal principles of administrative law rights have roots in the common law and even the constitution, but the exact procedural entitlements are found in the HPA, its accompanying regulations and the College’s Bylaws. An alleged infringement can only be substantiated by applying rules found in these sources to the exact circumstances. Hence, having your legal counsel engaged with the entire disciplinary process is the preferred way to protect your rights and achieve a fair outcome.

Appealing a Decision Is Challenging

If a registrant has concerns about the fairness of a CHCPBC discipline order against them, they can appeal that decision to the Supreme Court of British Columbia within a short 30-day period after the decision is received. However, an appeal is monumentally challenging and should be seen as a last resort attempt to seek judicial remedies. This is for a few reasons:

• An appeal procedure is complicated and likely lengthy, and the appellate standards for an appeal to be successful are very high (as discussed above).
  • Adding to the difficulty, courts are, at common law, required to pay deference to regulatory decision makers out of respect for legislators’ intent (Vavilov).
• Normally, an appeal only considers issues related to the fairness of a disciplinary decision or its decision-making process.
  • This means a registrant cannot submit additional evidence regarding the alleged conduct, nor can they try to reargue their case. This also means that preparing for an appeal often requires a high degree of legal know-how.
• An appeal does not automatically pause the enforcement of a discipline order.
  • moreover, even if an appeal is successful, the matter may be sent back to the College to be re-determined, rather than being quashed outright.
  • Hence, the damaging effects of a discipline order may continue to take place in the background during an appeal.

Safeguarding Your Rights with Early and Ongoing Legal Representation

You should not wait until a disciplinary decision has been made to seek legal representation. The preferred way to safeguard your rights is to retain legal counsel early and throughout the entire disciplinary process, so that they can flag rights-related issues as they arise and assist decision makers in making fair decisions.

Whether you are concerned about an upcoming disciplinary procedure or a decision made against you, you can trust the experienced legal team at Taylor Janis Workplace Law.

Seeking Professional Legal Help

Taylor Janis Workplace Law appreciates the complexities and nuances of the regulatory landscape. We also understand that every case is different, and so are the needs of each client. From the moment you contact us, our team is committed to providing supportive and practical services tailored to your specific situation.

Whether you are facing a disciplinary action or trying to appeal a CHCPBC decision, reach out to one of our BC offices in Vancouver or Kamloops to schedule a consultation, as this is the first step to securing a tailored legal plan from our experienced legal team.

Taylor Janis provides legal services to professionals facing regulatory actions in all areas of BC, and we are looking forward to assisting you through any regulatory challenges.

Frequently Asked Questions

Can CHCPBC Discipline Care and Health Professionals for Actions Outside Their Professional Practice?

You can attract the CHCPBC discipline for actions outside your professional practice. The HPA has broad public interest goals in upholding the ethics and reputation of professions under its regulations, and its definition of professional misconduct includes conduct that is unethical, infamous or unbecoming a care and health professional. Moreover, the College’s standards, including the Code of Ethics/ Conduct of your respective profession, may also have broad ethical and personal conduct requirements. If you are under scrutiny because of conduct outside your professional practice, you should have your legal counsel review your case.

How Long Does a CHCPBC Disciplinary Process Typically Take?

The length can vary greatly depending on the factual and legal complexity and merit of the case against you. A frivolous or vexatious complaint may be processed fairly quickly, but a complaint resulting in an investigation or hearing may take several months or even more than a year to resolve. You should discuss your concerns about the disruptive effects of a disciplinary process with a lawyer, as they can provide advice about streamlining the process where possible and reasonable.

Can I Continue Working While Under CHCPBC Investigation?

If your registration is not suspended or has conditions or restrictions placed thereon, you can continue working while undergoing a CHCPBC disciplinary process. However, if any of these have been imposed on your license, you should strictly follow the College’s directions, as non-compliance can attract severe disciplinary or legal consequences. Consult a lawyer if you have any concerns or questions about your ability to work during a disciplinary process.

Does the CHCPBC Publish Disciplinary Decisions Online?

The current practice is that public notices regarding discipline are put on the College’s website, but additional distribution is possible as the Registrar sees fit. S.39.3(1) of the HPA requires the CHCPBC to publish all of its discipline orders (including consent orders) and information related to cancellation of a registrant’s registration or a suspension, restriction or conditions imposed thereupon. The College is also required to publish undertakings and consents given for remedial action by consent if the concerned matter is a serious one (meaning a matter that would normally attract more than a reprimand or a fine). Information identifying the registrant will be included, unless there is a strong countervailing privacy interest concerning the registrant’s health conditions or other persons affected by the matter.

Are There Limitation Dates for CHCPBC Proceedings?

The limitation periods applicable to general civil litigations at courts do not apply to regulatory and disciplinary proceedings. For disciplinary purposes, the HPA‘s definition of registrants includes former registrants. Hence, you can be disciplined by the CHCPBC long after the cessation of your registration. Consider consulting a lawyer if you are under the regulatory scrutiny of the College, even if you are no longer its registrant.

Conclusion

CHCPBC discipline is legally binding and can have severe financial, career and reputational consequences. When undergoing or expecting a CHCPBC disciplinary process, staying informed about the procedures and your rights is vital for safeguarding your career. Your defence against a complaint should be legally and factually robust, and a skillful advocate can be crucial to a successful defence. Hence, obtaining skilled legal representation early is highly recommended, and you should not navigate the testing waters of a CHCPBC disciplinary action alone.

References:

• Health Professions Act [RSBC 1996] CHAPTER 183
• Health Professions and Occupations Act [SBC 2022] CHAPTER 43
• 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
• College of Health and Care Professionals of BC Bylaws
• Psychologists – Code of Conduct

Further Resources for Readers:

• Code of Conduct/ Ethics for health and care professionals of BC
• Past CHCPBC discipline orders
• The CHCPBC’s publication about expected changes under the HPOA
• BILL 36 – 2022 HEALTH PROFESSIONS AND OCCUPATIONS ACT
• Dietitians Regulation
• Occupational Therapists Regulation
• Opticians Regulation
• Optometrists Regulation
• Physical Therapists Regulation
• Psychologists Regulation
• Speech and Hearing Health Professionals Regulation

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