A mural of health care workers outside Vancouver General Hospital on Thursday.Jennifer Gauthier/The Globe and Mail
Imagine a scenario in which someone is accused of wrongdoing and faces a panel that hears information obtained without a warrant. If they are found guilty, a government body will determine the punishment, with no way to appeal and no option for suing the tribunal. Many Canadians would agree that the process was a travesty of justice. Not how we do it here, some might say.
Except that is exactly how the British Columbia government will start dealing with some complaints against medical professionals, as part of a sweeping governance revamp that took effect Wednesday.
The spur for the changes were a pair of reports – in 2003 and 2018 – finding that the colleges that regulate medical professionals were too focused on the interests of members, rather than the public good. But some of the changes the government opted for could have been improved on, and others were purely wrongheaded.
Regulatory colleges have traditionally determined who can work in different fields of medicine by controlling entry, setting practice standards and meting out professional discipline.
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Practitioners gradually lost the ability to regulate themselves entirely. Before the current legislative change, for example, the British Columbia government could appoint no less than one third and no more than half of the members of the boards of regulatory colleges, with the remainder being elected by practitioners. That still left the prospect of the industry representatives carrying the day by sheer numbers.
Instead of simply changing the rules to require parity between appointed and elected members – which would require that the industry reps convince at least some appointees of the rightness of their position – the government switched to all-appointed boards.
More egregiously, the government is sticking its hands deep into the disciplinary process. Criminal complaints will still to be handled by courts with normal due process, appropriately so. But non-criminal misconduct will, after a finding of guilt, enter a process purpose-built by government.
The new law creates a Superintendent of Health Profession and Occupation Oversight, which is appointed by the Lieutenant Governor on the advice of cabinet. The Superintendent’s Office includes a Director of Discipline appointed by the Minister of Health, who in turn appoints the members of tribunals that determine disciplinary action.
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And to be clear, although these are more minor offences, the effects can be serious. A medical professional found guilty may lose their licence and their livelihood.
Even with such serious consequences, the medical professional can no longer appeal to the courts. And they also cannot sue the tribunal, which has been granted statutory immunity.
This process is so unjust that it undermines another change in the legislation. It would have been a good thing that the public could more easily find out about disciplinary action against their practitioner – as the legislation promises to do – but only if the process of discipline is fair.
In sum, the new process grants too much power to government and too little protection to the accused.
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The new system allows for warrantless searches, to allow an investigator probing a misconduct complaint access to medical records without a court order, if they deem it necessary to do so. The legislation makes no specific provision for requiring patient consent in order to access their files.
Also worrying is wording that allows the health minister broad latitude to act at their discretion. For example, the minister could change practice standards “for the purposes of protecting the public from harm” and make rules around eligibility to practice. Neither seems suited to unilateral decision-making.
The new legislation stemmed from real concerns. The province’s ombudsperson warned in 2003 that regulatory colleges “do not appear to have fully accepted or understood what it means to act in the public interest.” And in 2018, a government-commissioned report into the dental surgeons’ college found that some leaders viewed their job as protecting members, rather than the public.
Those are problems worth addressing. But in seeking to do so, the B.C. government has overreached. And in eliminating proper due process while boasting about increased accountability, it has made a mockery of justice.