http://www.canlii.org/en/on/onhparb/doc/2014/2014canlii28540/2014canlii28540.html

DECISION

1.                  It is the decision of the Health Professions Appeal and Review Board to confirm the decision of the Inquiries, Complaints and Reports Committee of the College of Psychologists of Ontario to offer the following advice to the Respondent:

It is important to remain attentive to the perceptions of clients surrounding confidentiality. Where possible you and your staff should consider appropriate safeguards to minimize the risk of breach, whilst taking steps to assure and maintain client confidence.

2.                  This decision arises from a request made to the Health Professions Appeal and Review Board (the Board) by J.C. (the Applicant) to review a decision of the Inquiries, Complaints and Reports Committee (the Committee) of the College of Psychologists of Ontario (the College). The decision concerned a complaint regarding the conduct and actions of C.W., Ph.D., C.Psych (the Respondent). The Committee investigated the complaint and decided to offer advice to the Respondent as described above.

II.        BACKGROUND

3.                  The Applicant was in a motor vehicle accident in August of 2008. The Economical Insurance Group referred the Applicant to the Respondent for an independent neuropsychological assessment report.

4.                  The assessment took place on May 3, 2012.

5.                  As part of the assessment, the Respondent asked the Applicant to complete a test. The Respondent left before the Applicant completed the test and directed the Applicant to leave it with the building receptionist when he finished the test.

6.                  The Respondent reported that, from a neuropsychological perspective, the Applicant was not experiencing significant psychological or emotional impairment.

III.      REQUEST FOR REVIEW

10.              Dissatisfied with the decision of the Committee, in a letter dated April 25, 2013, the Applicant requested that the Board review the Committee’s decision. In his six-page letter, he summarized, “The issue I wish to dispute was related to [the Respondent’s] professional conduct, wrong diagnosis, and the inaccuracies in his reporting … I wish to be treated fairly. I am not after financial reward for this complaint. I only make the complaint because his report did to me a serious injustice, and I would not like the same done to another in my position. If I were to get one thing, it would be that [the Respondent’s] report on me be invalidated.”

Issue Three: Confidentiality

48.              The Committee noted the Applicant’s concern about this incident serving to breach his confidentiality. While noting that it would have been impossible to determine the extent of any potential breach of confidentiality, the Committee expressed concern that the Applicant, as a client, perceived that his confidentiality had not been secure. The Committee expressed the view that it was important for members to take appropriate action to ensure that confidentiality and the perception of confidentiality is maintained at all times.

49.              In view of this, the Committee offered the Respondent the following advice in an effort to both improve his practice and prevent similar occurrences in the future:

It is important to remain attentive to the perceptions of clients surrounding confidentiality. Where possible you and your staff should consider appropriate safeguards to minimize the risk of breach, whilst taking steps to assure and maintain client confidence.

50.            The Board finds the Committee’s conclusion in this regard to be reasonable. The Board considers significant that the advice will remain on the Respondent’s permanent (although private) record with the College, and may be considered should another complaint arise in the future. Thus, the Board finds that the advice issued to the Respondent communicates the seriousness of his conduct and importantly, acknowledges the merits of the Applicant’s complaint. The advice is both educative and remedial. An advice is one of the options available to the College to enable it to fulfill its mandate to protect the public.

http://www.canlii.org/en/on/onhparb/doc/2014/2014canlii30272/2014canlii30272.html

32.              In her complaint letter dated September 1, 2011, the Respondent indicated, “[the Applicant’s] medical opinion as set out in the report contained inappropriate personal opinions as to her character. … [The Applicant] improperly permitted these personal opinions to inform his medical opinion as evidenced by the report itself.” The Respondent stated that the Applicant’s ill-informed and personal opinions as to her “personality style” were not relevant or proper in discussing her medical diagnosis.

33.              The Committee indicated it had an opportunity to review the IME report that the Applicant produced following the Applicant’s assessment of the Respondent. The Committee stated that it “found [the report] skimpy, almost casual, and simply unacceptable as a serious and credible psychiatric evaluation.” In the Committee’s view, “it showed many deficiencies of diagnosis and formulation.” The Committee stated that its concerns about the Applicant’s approach in this case was compounded by the fact that it was aware that the Applicant had, in the past, been the subject of complaints to the College regarding his approach to psychiatric IMEs, and that the Committee had sanctioned him in the past regarding aspects of his practice. The Committee also stated that the Applicant’s “approach betrays deficiencies in his management of patients who may have PTSD. He needs to be aware of all criteria for PTSD so he can screen for it, and manage it, if found.”

34.              In reaching its decision, the Committee noted that the Applicant’s comments in his report about the Respondent’s personality style were odd in that the Applicant focussed on the fact that the Respondent went on holiday with a colleague and did not address questions relevant to assessing the Respondent’s premorbid personality. The Committee noted that the Applicant did not document anything about premorbid personality in his report. The Committee also noted:

Personality is relevant to a psychiatric consultation or assessment. [The Applicant], however, did not explain it in the context of a proper diagnostic grid. Axis II refers to personality disorders and traits and [the Applicant] did not present a formal and detailed diagnosis. Under “Axis II” in [the Applicant’s] report, he marked nil. [The Respondent’s] psychologist and psychiatrist did not document anything about personality. Her psychiatrist also put “nil” for Axis II.

35.              Given the totality of this information, the Committee decided to caution the Applicant in person regarding the thoroughness of his IME assessment and report and further required that the Applicant provide a written report with respect to assessment and management of PTSD and the components of a psychiatric assessment.

36.              At the Review, the Applicant submitted that the Committee’s conclusion regarding the Applicant’s practice management of patients with PTSD was outside the scope of this complaint. The Applicant argued that the Committee’s conclusion was too broad given that it limited the investigation to the Respondent’s IME. Furthermore, the Applicant submitted that if the Committee had concerns about his practice management of patients with PTSD, it should have given him the opportunity to respond to this aspect of the Committee’s concerns. He commented that this aspect of the Committee’s decision should be further investigated and reconsidered. The Applicant noted that his comments in the IME report regarding the Respondent’s personality style may have been clearer under another section of the report rather than under the DSM IV and diagnosis section.

37.              As indicated earlier, the Board finds that the scope of the Respondent’s complaint involved the accuracy and appropriateness of the IME report, including her concerns about the inclusion of comments about her character and her personality style. In examining the Committee’s decision, the Board observes that the Committee examined the IME report and other information in the Record and found it had concerns about the Applicant’s approach, stating more specifically that his “approach betrays deficiencies in his management of patients who may have PTSD” and the criteria for PTSD. The Committee commented that the Applicant “referred to personality disorders and traits and [the Applicant] did not present a formal and detailed diagnosis.” The Committee noted that under Axis II (personality disorders and traits), the Applicant marked “nil”. The Committee further noted that the Respondent’s psychologist and her psychiatrist did not document anything about personality and also put “nil” under Axis II.

41.              The Committee noted that the Applicant’s approach betrayed deficiencies in his management of patients who may have PTSD. The Committee indicated that the Applicant needed to be aware of all criteria for PTSD so he can screen for it, and manage it, if found. The Board does not agree with the Applicant’s submission that this conclusion falls outside the scope of the Respondent’s complaint or that it required additional records to arrive at this conclusion. The Committee reviewed the Applicant’s approach to the IME in this case, considered his conduct history and identified areas where he could improve his future practice regarding patients who may have PTSD. Given the College’s legislated public interest mandate and its duty to maintain professional standards, the Board finds reasonable the Committee’s request that the Applicant provide the Committee with a written report with respect to assessment and management of PTSD and the components of a psychiatric assessment.

45.              Pursuant to section 35(1) of the Code, the Board confirms the Committee’s decision to:

i)                    require that the Applicant attend the College to be cautioned in person with respect to the requirement of maintaining confidentiality of personal health information, and with respect to the thoroughness of his IME assessment and report; and

ii)                  request that the Applicant provide the Committee with a written report, approximately 2-4 pages in length, with respect to assessment and management of PTSD, and the components of a psychiatric assessment, and with respect to law and policy regarding privacy of personal health information.

https://www5.fsco.gov.on.ca/AD/4199

There is no evidence before me that Mr. Basra is not trustworthy or that he purposely mislead assessors. Dr. Edward Mah, a chiropractor who conducted an insurer examination, testified that he detected exaggerated pain responses, inconsistent tenderness and overreaction when there was nothing physical to explain Mr. Basra’s pain. However, in cross-examination, he agreed that pain amplification could be a descriptor of chronic pain disorder and clarified that he did not test Mr. Basra for chronic pain.

However, in cross-examination, Dr. Mah admitted that pain amplification could be a descriptor of chronic pain and agreed that there could be a physical cause for chronic pain. However, at no time, according to Dr. Mah, did he test Mr. Basra for chronic pain. Dr. Mah confirmed on cross examination that he has never authored a single article on the subject of chronic pain disorder and his last documented hours for chronic pain management were in February 2005. Subsequent to the assessment with Dr. Mah, Mr. Basra was diagnosed with chronic pain by Dr. Ogilvie-Harris. Dr. Ogilvie-Harris, who testified at the hearing, was qualified as an expert in orthopaedic surgery with a special interest in chronic pain. I prefer the expert evidence of Dr. Ogilvie-Harris with respect to Mr. Basra’s chronic pain and give little weight to Dr. Mah’s opinion regarding Mr. Basra’s ability to return to his employment.

https://www.canlii.org/en/on/onhparb/doc/2014/2014canlii24764/2014canlii24764.html?searchUrlHash=AAAAAQAGaHBhcmIgAAAAAAE

The Complaint and the Response

8.                  The Applicant complained that Dr. D.:

•                     failed to conduct an adequate IME and failed to determine that she has a disability;

•                     failed to provide an adequate report resulting from her IME in that the report contained many inaccurate statements; and

•                     failed to administer his office practice in a proper manner in that on July 12, 2011, his elevator was out of service and the floor in his office was uneven, creating a tripping hazard for his patients.

9.                  The Applicant complained that Dr. V.:

•                     failed to provide an accurate report resulting from her IME in that he made an inaccurate diagnosis of her and made many inaccurate statements throughout his report; and

•                     behaved in an unprofessional manner in that he failed to respond to Sibley & Associates when she filed a complaint with them regarding his IME.

27.              A preliminary issue that arose at the Review was whether, in determining whether the Committee’s decision is reasonable, the Board should consider documents submitted to the Board by the Applicant at the Review, including recent information related to the Applicant’s health. While the Board has no reason to question the veracity of the information contained in this documentation, it does question the relevance of the documents as to whether the Committee’s decision is reasonable in light of the information it had before it. As a rule, the Board cannot fault the Committee for failing to consider information that arose after its decision was rendered. One exception to this rule might be post-decision information suggesting bias or conflict of interest on the part of one or more Committee members, but the recent information proffered by the Applicant related to neither of these issues. For these reasons, the Board did not consider this “new” documentation in its deliberations.

48.              The Board finds that given the scarcity of information regarding this matter, and the discrepancies concerning the dates, it was reasonable in the circumstances for the Committee to take no action regarding this aspect of the Applicant’s complaint.

https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2550/2014onsc2550.html

[17]      The novel legal issue raised by the parties to this motion is: “What is the appropriate test for the court to determine whether to exclude a health practitioner from conducting a defence medical assessment?”  That issue requires a consideration of the appropriate test for the court to order that a defence medical assessment be videotaped or audiotaped, which is also relevant to the Plaintiff’s alternative submissions.

[18]      The Plaintiff submitted that the court should exclude a health practitioner from conducting a defence medical assessment when it finds, on the balance of probabilities, that the proposed assessor is not competent, biased or that there is a reasonable apprehension of bias.

[19]      The Defendants submitted that the court should exclude a health practitioner from conducting a defence medical assessment only when it finds, on substantial and compelling reasons or perhaps even a higher threshold, that the proposed assessor is either not competent, biased or that there is a reasonable apprehension of bias.

[20]      For the reasons I discuss below, I accept the Defendants’ position and find that at a minimum, substantial and compelling reasons are required before the motions court can exclude a health practitioner from conducting a defence medical assessment.

[21]      However, while I discuss the applicable legal test since the issue is raised by the parties and has not been directly considered in the case law, the appropriate test to exclude a health practitioner from an assessment is not determinative in this case.  Even on the Plaintiff’s proposed “balance of probabilities” test, the Plaintiff has not led evidence to satisfy the court that Dr. Reznek is not competent or would be biased or present a reasonable apprehension of bias if he were to conduct the medical assessment.  I address the evidentiary issues later in these reasons.