BETWEEN: The Complainant COMPLAINANT. AND: The College of Chiropractors of British Columbia COLLEGE. AND: A Chiropractor REGISTRANT

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1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Chiropractors of British Columbia DECISION NO HPA-182(a) June 11, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Chiropractors of British Columbia COLLEGE AND: A Chiropractor REGISTRANT BEFORE: Marilyn Clark, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on March 9, 2018 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Dr. Douglas A. Wright, Deputy Registrar Self-represented DECISION I INTRODUCTION [1] The Complainant was employed by the Registrant, a Chiropractor, from 2009 to 2011 and according to the Complainant was encouraged by the Registrant to undergo chiropractic care. [2] In November and early December 2010 the Complainant had a series of treatments administered by the Registrant. On the last of that series, he used "an unexpected and forceful maneuver while she lay face down... That forceful thrust into her left shoulder area pushed her chest hard into the table." The Complainant believes this is the reason for her chronic rib and chest pain. [3] In 2017 the Complainant made a complaint to the College against the Registrant. Her complaint was investigated, and the Inquiry Committee found the Registrant's "treatments outlined in your full clinical file appeared to be delivered in accordance with the College's standards of practice."

2 [4] The Complainant makes a point of not having filed a complaint against the Registrant for seven years because she thought she would recover. It was also awkward for her to do so while the Complainant worked for the Registrant. She needed the employment as she had only recently arrived in Canada. [5] The Complainant submits the investigation conducted by the Inquiry Committee was inadequate and she is dissatisfied with the disposition. [6] The Complainant wants the College to ensure the Registrant is accountable for his actions by way of a citation or reprimand. II THE INVESTIGATION [7] On August 31, 2017, the investigator for the Inquiry Committee conducted a telephone interview with the Complainant, who provided the following information: In late 2010 she had a pain in the side of her head that prompted her to seek chiropractic care from the Registrant. She had three or four gentle sessions but at the fifth, and what became the final session with the Registrant, on Friday, December 3, 2010, "he asked me to turn over onto my stomach... at which point he came full force down onto my left shoulder so hard that my breast bone (sternum) hit the bed harshly with force." She commented on it to the Registrant but, according to the Complainant, he "downplayed" her reaction. Over that weekend she had difficulty breathing and suffered with rib and chest pain. She reported this to the Registrant when she returned to work on Monday but states the Registrant was "not interested in hearing about her breathing difficulties" and laughed off her reaction. The Registrant had encouraged her to have chiropractic treatments during the period of her employment. She submits he knew he had injured her during that December 3 rd treatment as he did not encourage her to have any further treatments Worried about her continued employment, she did not discuss this matter with the Registrant again. She left his employ about nine months later. She continues to have chest/rib problems to this day, over seven years after the event. She never did understand why the Registrant adjusted her shoulder for the pain she was experiencing on the side of her head. [8] The Inquiry Committee, on September 4, 2017, asked the Registrant for his response to the complaint, asking he provide specific responses in five areas. His

3 responses to those five issues are contained in his letter of October 3, 2017, and are in italics below. 1. Please outline the details of your history, exam, report of findings and treatment plan that you gave to [Complainant]. This has been provided above. 1 On the advice of legal counsel, I am reluctant to offer conjecture on matters beyond the written record given the passage of time since the period of attendance by this individual. It is submitted that the summary above and the file record itself fairly and accurately address the items in question. 2. Please provide your recollection of [Complainant's] complaint of chest and rib pain following her last treatment with you. As detailed in the file, December 6, 2010, was her last attendance. [The Complainant] was treated (among other things) for soreness in her breast bone first reported on December 1, She indicated that she uses a machine to perform crunches at the gym, which she presses her chest against. 3 At that visit, in relation to the breast bone concern, a supine thoracic adjustment was performed at T2. The balance of her presenting concerns were treated with ART on the neck, upper back and wrist. She was instructed to return in two days. 3. Please explain why there were no further treatments for [Complainant] after she complained of pain after her last treatment with you. The question presumes the reason for her not returning; it is merely her allegation now. The record discloses that she discontinued attendance for care. Respectfully I had no reason to assume an adverse event. 4. Please transcribe any information regarding your examination and/or advice that you gave to [the Complainant] following her last treatment with you. Her last treatment was on December 6, I provided no additional examination or advice to her following this treatment date. 5. Please provide a copy of your file for [the Complainant] including all reports, x-rays and findings, other studies and billing information. You shall not alter these documents in any way. (Emphasis in original College request.) As indicated above, a copy of the patient record has previously been provided. 1 The Registrant's submission is summarized in paragraphs 10, 11, 12 and 13 below. 2 The Complainant submits that it is "impossible that I complained about this on Dec. 1 to [the Registrant] when he injured me Dec. 3. I did not have treatment on Dec. 6." 3 In response, the Complainant has stated "I do not attend the gyms, nor do I use any form of equipment for my chest! I am actually in awe that he said this... I am not a gym person, I do not use equipment or weights even".

4 [9] On September 7, 2017, the Inquiry Committee Inspector and the Deputy Registrar visited the office of the Registrant during regular office hours to locate and copy: All treatment and billing records for the Complainant; Any additional notes or records regarding the Complainant; and All day sheets, appointment book entries or patient attendance records related to attendances by the Complainant. [10] The Registrant's chart notes are included in the record of investigation provided by the College (the "Record"), presumably picked up by the Investigator at the time of the visit to the Registrant's office. Those records include a signed Informed Consent Form and patient examination results with illegible notations for sixteen visits from October 16, 2009, to October 18, Records for treatments for the period from October 13 to December 6, 2010, appear to be reproduced from an Electronic Medical Record. [11] In his letter dated October 3, 2017, the Registrant provided the dates and reasons for his treatment of the Complainant. The Registrant submits that his investigation of her condition in October 2009 "disclosed low back, hip and leg dysfunction and strain/sprain. She received a variety of treatment as detailed in the clinical record which included ART, distraction and conventional adjustments." The Registrant provided care for these conditions to the end of [12] The Registrant further submits as follows: She returned for other care in May of 2010 in relation to her knee, elbow, low back and hip. She was further assessed and received care consistent with these presenting concerns. On July 19, 2010, she add [sic] headache as a symptom. This too was assessed and treated as recorded in the file. In August of 2010 she sustained a plantar fascia injury which was assessed and treated. Then in October she presented with neck pain and wrist pain. These were likewise assessed and treated. Her care continued through to December of [13] The Registrant's submission includes a medical record that does not appear to have been recorded contemporaneously with the treatments. This record reflects an appointment on December 6, 2010, during which the following treatment is recorded: Treatment included spinal manual adjustment at T2 (ER Supine); Active Release Techniques in the cervical obliques region on the left, on the left trapezius and on the left wrist. PTR 2 days ART on the right extensor digitorum and extensor pollicis longus and brevis III DISPOSITION BY THE INQUIRY COMMITTEE [14] The Inquiry Committee s stated understanding of what the Complainant was seeking was that the Registrant would understand the pain and suffering he had caused as a result of his final treatment; that he would take responsibility for the injury he had

5 caused; and that this would help her move on with her life and achieve some emotional healing. [15] In response, the Inquiry Committee stated they are not:... specifically tasked with evaluating the administration of a specific adjusting technique, only confirming that the practitioner is using approved methods in delivering clinical care. To this end, the committee did not find fault with [the Registrant] using applied manual spinal adjustment techniques for treating clinically relevant spinal complaints. When applying manual spinal adjustment techniques, it is ultimately up to the practitioner to apply the appropriate technique to the best of their clinical ability and with the best due care of the patient in mind. [16] The Inquiry Committee determined the Registrant`s conduct did not violate any guidelines, that there appeared to be a clinical basis for the treatment and that the Complainant had provided consent for treatment. They went on to say that treatments occasionally have unintended consequences and that no treatment can be guaranteed to resolve an issue. [17] I am troubled by what appears to be the suggestion that the College could absolve any registrant who caused an injury by stating that a treatment can lead to "unintended consequences" whether it was performed correctly, incorrectly, inappropriately or with negligence. There is no corroborating evidence to support whether the treatment on the day of the injury was performed appropriately or not. [18] The Inquiry Committee submits that the possibility of such unforeseen consequences was "... addressed in the informed consent form that you signed. In cases where unexpected outcomes from clinical care occur, recourse for injuries can be explored through civil litigation." [19] I trust the College and the Registrant would not count on the signed informed consent document to limit in any way the College s responsibility to ensure the public is protected from practices which are not according to approved standards. Consent to risk of treatment would not equate to acceptance of treatment at a level below the applicable standard of practice if same occurred and protection of the public was of concern. IV COMPLAINANT'S CONTINUING CONCERNS [20] The Complainant comments on the composition of the Inquiry Committee which is comprised of Registrants of the College and one-third public representatives. It is her view that "professionals in the same fields are 'known to support' each other." Section 16 of the College Bylaws provides as follows: (1) The inquiry committee is established consisting of 6 persons appointed by the board. (2) The inquiry committee must include at least 2 public representatives, at least one of whom must be an appointed board member. 4 4 In this case, the Inquiry Committee was comprised of five Registrants and one public representative. The second public representative member of the Board was unable to attend the meeting when the Complainant's complaint was considered.

6 [21] The Complainant, in her Statement of Points, reiterates this concern that a conflict of interest exists when the majority of the Inquiry Committee is composed of college registrants (other chiropractors) and goes on to submit: I am unaware of who knows who which leaves the inquiry open to a conflict of interest and leading to a biased outcome. When all things are considered this is probably one of the main reasons I did not reach of [sic] to the BC college of chiropractors long before now because I thought how they can help me when they represent chiropractors. [22] The College does not represent chiropractors. The College regulates chiropractors. The Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) provides that at least one-third of a college board membership shall be appointed by order of the minister, while the balance of the board membership is elected from among the registrants of the college. In their by-laws, colleges have adopted this ratio for their inquiry committees. This is in recognition that registrants are in a better position, based on their knowledge of their professional practice, to determine the appropriateness of a registrant's practice. This does indeed give the balance of influence to the registrants, and certainly, the role of the public representatives appointed by the minister is to represent the interests of the public. However, all members of the inquiry committee are responsible for protecting the interests of the public, not just the public representatives. The fundamental objective of any college is to protect the public. The Act states categorically that it is the duty of a college at all times to serve and protect the public, and to exercise its powers and discharge its responsibilities under all enactments in the public interest. As such, registrants serving on an inquiry committee are legally and ethically bound to provide an unbiased and objective assessment of the complaints before them. It is this trust in the ability of licensed health practitioners to rise above self-interest and professional advocacy that is the foundation of the province s self-regulation model. Patients who use the services of a regulated health practitioner should never be hesitant to turn to a college if they have concerns about the care they received. Furthermore, the Review Board has a function within this model to monitor colleges work a function that is only triggered when an Application for Review of a College disposition is filed. [23] With her Statement of Points, the Complainant also provided additional documentation not included in the Record. A third MRI conducted on January 24, 2018, after she had filed her complaint, supports the Complainant's contention that she has not recovered from the injury she alleges was caused by the Registrant. [24] In addition, a summary of physician consultations dated November 3, 2017, was provided by her current general practitioner. These consults were performed by a Thoracic, Esophageal specialist and a Rheumatologist in 2014 and 2016, both of whom identified "genuine pathology at the sternal manubrial joint." These consults were performed as a result of the Complainant having chronic sternal manubrial area pain. When the Complainant offered additional documentation to the Inquiry Committee, the Inspector responded they had all the information needed to make a decision. It is the Complainant's view the Inquiry Committee ought to have reviewed the new information. [25] Even had the Inquiry Committee reviewed the additional documentation, there is still no corroborating evidence that the injuries were caused by the Registrant. The

7 additional documentation confirms there is sternal area damage, not the cause of that damage. [26] In regard to the additional information, the Act states: 50.6(6) A review under this section is a review on the record. 50.6(7) The review board may hear evidence that is not part of the record as reasonably required by the review board for a full and fair disclosure of all matters related to the issues under review. [27] I could return the file to the Inquiry Committee with the direction that they accept and review this additional documentation. However, this is a matter in which claims by the Complainant and the Registrant are not substantiated by the evidence. A College may consider the medical records created at the time of the encounters in comparison to submissions by the patient several years later. In this case, the time lapse will have affected the recollection of both of these parties though the College does not need to make findings of fact between competing sources of evidence. V ANALYSIS [28] My role is to assess the adequacy of the investigation and the reasonableness of the disposition. If I determine that in all the circumstances the investigation was adequate, keeping in mind it need not be perfect, and the disposition reasonable then I must confirm the disposition of the Inquiry Committee. My role is not to replace the disposition of the Inquiry Committee with one that I might prefer or one that would be better appreciated by the complainant. [29] The Review Board articulated in Review Board Decision No HPA-0001(a) HPA-0004(a) at para. [97] the extent to which a College must investigate a complaint: A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the inquiry committee s assessment of the complaint. [30] As the panel chair, I derive my authority to conduct this review from the Act, which stipulates in s.50.6(5) and s.50.6(8) that: the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition.

8 On completion of its review under this section, the review board may make an order: (a) confirming the disposition of the inquiry committee, (b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (c) sending the matter back to the inquiry committee for reconsideration with directions. If I find the investigation was adequate and the disposition falls within a range of reasonable outcomes, then I must confirm the decision of the Inquiry Committee. [31] At this Stage 1 hearing, I have determined I can fairly, properly and finally adjudicate on the merits without the need for submissions from the College or the Registrant. [32] As such, my review of the Inquiry Committee's disposition is based solely on the Complainant s Application for Review, the Record and submissions from the Complainant. [33] In this case, the Inquiry Committee assigned an inspector, interviewed the Complainant and the Registrant, and provided each the opportunity to respond to the others' submissions. The investigation was adequate in that the Inquiry Committee "took reasonable steps" to obtain the information they needed. Would the outcome have been different had the Inquiry Committee considered the new information submitted with the Statement of Points? I do not believe so. [34] The Complainant regrets allowing the Registrant to treat her and submits "it is so debilitating to live in chronic pain with a double injury and as it continues to deteriorate it scares me for the future." [35] I find the Complainant s claims of being debilitated and in pain to be credible, but I cannot find the Inquiry Committee s decision, which is based, as required, on the investigation, to be unreasonable. I understand the Complainant has only recently come to terms with the long-term impact of that December 3, 2010, treatment but given the long gap between now and the initial injury, to confirm the injury occurred as a result of substandard professional practice on the part of the Registrant is not possible. [36] I have found the investigation adequate and the disposition reasonable. The alternative of returning the disposition to the Inquiry Committee may provide satisfaction, but not healing, to the Complainant. As previously stated, I believe that it would not alter the outcome of her injuries nor I believe the outcome of the investigation. There is no way to confirm that the treatment by the Registrant on December 3, 2010, was anything other than "delivered in accordance with the College's standards of practice." In this matter, I agree with the College that "even where the practitioner does everything in accordance with the professional standards, unforeseen outcomes can sometimes occur."

9 [37] I would have preferred the disposition to have gone into more detail about the appropriateness of the technique used by the Registrant and to have commented on the lack of follow-up the Registrant provided when the Complainant reported pain on the following Monday morning. Given the time that has passed, the Complainant will have to achieve emotional healing by some other means. She can certainly be assured that following her complaint to the College, and this review, the Registrant is fully aware of the impact he has allegedly had on her life [38] There is one other matter that causes me concern and that relates to the appropriateness of an employer treating an employee. A number of the professional colleges have banned practitioners from treating individuals with whom they have a relationship including spouse, family members, friends and co-workers. It can be difficult to maintain relationship boundaries in such instances. [39] Contrary to the practice of some of the professional colleges, this College specifically states in its Professional Conduct Handbook that registrants "may examine and treat "spouse and family members." The Handbook also states that "A chiropractor will not require an employee to be a patient as a condition of employment." [40] The Complainant may not have been required to be a patient but she was certainly urged to do so. The Complainant's complaint to the College reads as follows: [The Registrant] constantly encourage [sic] Chiropractic treatment as a benefit of working there, and how I was front line staff of his business, even though I insisted I did not need chiro treatment. He would actually book me into the system for appointments. At times I would re-schedule these appointments as I always felt patients should have priority over me. [41] With respect, I would urge the College to consider the appropriateness of such a practice. VI DECISION [42] Based on my review of the Record, the Complainant s Application for Review and the Statement of Points, I find that the investigation of the complaint was adequate and that the disposition was reasonable, as it falls within a range of acceptable outcomes. [43] Pursuant to s.50.6(8)(a) of the Act, I confirm the disposition of the Inquiry Committee. In making this decision I have considered all of the information and submissions before me whether or not I have specifically referred to them. Marilyn Clark Marilyn Clark, Panel Chair Health Professions Review Board