Complainant v. The College of Physicians and Surgeons of British Columbia

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of British Columbia DECISION NO HPA-146(a) December 1, 2017 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (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 Physicians and Surgeons of British Columbia COLLEGE AND: A Registrant REGISTRANT BEFORE: Victoria Kuhl, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on December 12, 2016 APPEARING: For the Complainant: Self-represented For the Registrant For the College William S. Clark, Counsel Lisa C. Fong, Counsel I STAGE 2 PROCEEDING [1] This review of the Inquiry Committee s disposition was based on the record of investigation provided by the College (the Record ) and submissions from the Complainant, the Registrant and the College. The investigation and disposition by the Inquiry Committee was concluded under s.33(6)(a) of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) with a disposition letter to the Complainant and the Registrant on May 24, II ISSUES [2] The issues in this review that I must decide are: (a) Did the College conduct an adequate investigation of the complaint against the Registrant?

2 III (b) Was the Inquiry Committee s disposition concluding the complaint without criticism under s.33(6)(a) of the Act reasonable? INTRODUCTION [3] The Complainant, a man in his early 60 s, was an accident free transit bus driver for over 33 years. During 2013 he sustained injuries to his elbow and foot and was moved to the maintenance yard during treatment and recovery. The injuries persisted and he was placed on disability leave in After a period of approximately a year the insurance company contracted the Registrant to determine the Complainant s fitness to return to work. In February 2014 the Registrant conducted a medical exam of the Complainant. [4] The Complainant alleges that, lacking concrete evidence, the Registrant (an occupational medicine and addiction specialist), incorrectly diagnosed him as having a possible substance use disorder: probably marijuana use in a safety sensitive worker. As a result the Complainant was unable to return to work, was ordered to attend a yearlong addiction outpatient treatment program and random urine testing. He had his pension reduced and due to his diagnosis and addiction treatment was unable to obtain another job. [5] The Registrant trained and was certified in Ireland as a physician. He was certified in the United States in addiction medicine and in family medicine in BC. His practice is around occupational medicine and chemical dependency. [6] The Inquiry Committee s disposition identified no grounds for regulatory criticism of the Registrant s care and or conduct. The Complainant has requested a review by the Board of that disposition. IV THE FAMILY PHYSICIAN [7] The focus of this Review is on the Inquiry Committee s investigation and disposition in regard to the conduct of the Registrant in his evaluation, diagnosis and treatment of the Complainant. [8] In the course of the Inquiry Committee s investigation of the complaint the Inquiry Committee noted with concern the inaccuracy and brevity of the Family Physician s medical records in this matter. The College initiated its own investigation into the involvement of the Family Physician. [9] The Family Physician s medical note of concern stated that the Complainant had smoked pot for pain regularly. This phrase was noted by the insurance company, considered by the Registrant during his review of the Complainant s history and by the Inquiry Committee during the investigation and review of the complaint material. [10] A year following the use of that medical note by the Registrant in arriving at his diagnosis, and following receipt of his diagnosis, the Complainant requested his medical records. Until then he was unaware of the note. He contacted the Family Physician alerting him to the inaccurate representation of their discussion.

3 [11] The discussion that took place that day occurred during the Complainant s office visit to the Family Physician. The Complainant stated that he spoke about his unsuccessful attempts to use edible marijuana (hemp) as pain relief. He had questioned the Family Physician on whether the use of (medical) marijuana might be better for pain relief as he did not want to take prescription drugs for pain. [12] On August 13, 2015, the family physician responded. He stated: I admit that I am at fault for not charting more details and for assuming that the marijuana he had used in the distant past was smoked. Although it is a fact that he had used marijuana in the past, and this is what my chart entry states, details about when, how much and for how long are not charted. I felt badly about that oversight on my part, particularly because the simple statement in my chart may have been misconstrued in the case [the Complainant] is dealing with. [13] The Family Physician apologized to the Complainant and the insurance company for misrepresenting the actual discussion that took place that day. [14] In June 2016 the Family Physician received a letter sent on behalf of the Inquiry Committee that read as follows: The Committee reviewed the available information and identified grounds for criticism of your medical record keeping, specifically: Your documentation of (the Complainant's) marijuana use was inaccurate leading to significant consequences for his employment as a bus driver, The expected documentation of physical examination was lacking. [15] The Inquiry Committee requested that the Family Physician take a remedial course in medical record-taking. He undertook the remedial action recommended. [16] The Complainant accepted the Family Physician s apology for misrepresenting their conversation. The Complainant noted that did not wish to include him in his complaint to the College. He opted to remain a patient of his Family Physician. V BACKGROUND [17] The Complainant suffered severe tendonitis to his arm and leg and as a result was moved from driving a bus to working as a transit maintenance worker. He was placed on disability leave in August A decade earlier he had been on disability leave for close to a year for Post-Traumatic Stress Disorder ( PTSD ) that occurred as a result of being the first to attend to a gruesome motorcycle accident. [18] The Complainant was married and has two children. He stated that he was, when not injured, a regular active participant in a demanding form of Martial Arts called Axe Capoeira, and that part of his health program was that he took Hemp protein frequently. [19] The Complainant had been on disability leave for close to a year in early His employer s insurance company monitors employees on disability leave through their physicians medical records and engages a consultant physician to conduct a formal medical review of the employee s fitness to return to work The Complainant s medical

4 records were requested and reviewed by the insurance company staff, who noted the medical records contained a brief clinical note, dated July 29, 2013, that the Complainant has been smoking pot recently to manage pain, says he s had much less etoh [alcohol]. [20] The insurance company engaged the Registrant, an occupational medicine and addiction specialist to determine whether the Complainant was ready to return to work. In February 2014 the Registrant conducted an Independent Occupational Medical Evaluation ( IOME ) of the Complainant. The exam format for these evaluations includes a physical and psychological/psychiatric profile and testing for the use of drugs. The Registrant submitted two additional reports as supplementary to the IOME in response to additional information about the Complainant supplied by the insurance company. [21] The Complainant stated that prior to attending the appointment for the IOME, the Complainant read the Registrant s online patient reviews and that after reading the negative reviews of previous patients the Complainant was very apprehensive that he might not be treated fairly by the Registrant. [22] The Complainant determined that he would, if necessary, prove to the Registrant that he was not using any drugs including marijuana, by taking two urine drug tests ordered by his family physician prior to his IOME. The tests were deemed by the lab to be negative. They showed a trace amount of cannabinoid that was below the cut off level. The Complainant was not concerned and attributed this to his long-term use of hemp protein. He was confident the Registrant would accept the results of the urine drug tests ordered by his physician. [23] At the time that the Complainant went for his appointment with the Registrant he was unaware that the Registrant had his medical records. He was unaware that the medical records contained the note by his family physician referenced above. [24] The Complainant stated that in April 2014 with the assistance of counsel, he was able to obtain an official report of the laboratory results from the second in office test taken on February 19, That report, written by a Life Labs physician on April 10, 2014, explained that one of the drug urine tests in the Registrant s office was examined with a different protocol (medical test) and that though the number was higher the results remained negative. The report stated in part: The cut-off for confirmation of Cannabinoids is 15 mg/ml and the February 19 th report interpretation is that THC (Tetrahydrocannabinol) metabolite (carboxy-thc) was detected but was below 15/mg/mL and therefore is negative. This indicates to the physician that the drug was detected but below the level of what is considered positive. In contrast, the other 3 urine drug tests from February 15, 2014, March 19, 2014 and April 22, 2014 were ordered, as Legal Drug Screening tests with the chain of custody and the reports look different because only Negative or Positive are reported for screening tests with no interpretation as in the Medical drug tests. The cut-offs for THC for screening and confirmation are the same for Medical and Legal drug tests, so the Legal reports for Cannabinoid (THC) indicate that the result is negative but would have been less than 50 mg/ml as the screening test was performed, not the confirmation test.

5 [25] In June 2015 after repeated requests to the insurance company, the Complainant obtained a copy of the IOME with its troubling diagnosis. The diagnosis was possible substance abuse probably marijuana. [26] In July 2015 the Complainant filed a complaint with the College. When he received his medical records, he discovered his family physician s note with a misrepresentation about him smoking pot and realized it had been used by the Registrant as a basis for arriving at his February 2014 diagnosis. He also discovered that his first drug urine test from the Registrant s office had been listed in the Registrant s report as positive for cannaboid even though it was below the accepted cut off level for cannaboid and THC metabolite and therefore was in fact negative. (Record P 49) VI THE COMPLAINT [27] The Complainant made several submissions to support his complaint. The submissions included information he had sourced on the chemical makeup of marijuana, cannaboid and hemp from available research. He also attached documentation from Life Lab to support his allegation that the Registrant has misinterpreted the drug urine tests. [28] The Complainant alleges that the Inquiry Committee s investigation was unfairly weighted in support of the Registrant s views. The Complainant alleges that the Inquiry Committee accepted without question, the Registrant s submission that cannaboid and TCH would not show in urine drug tests of persons who ingested hemp. There did not seem to be consideration of the Complainant s opposing submission with supporting documentation that the ingestion of hemp over an extended period can result in traces of cannaboid and TCH in urine under the cut off level. The Complainant submits it was unreasonable for the Inquiry Committee to accept the Registrant s opinion that the accepted Canadian cut-off levels in drug urine tests are not relevant, a point that was not addressed by the Inquiry Committee. [29] The Complainant alleged that in June 2014 the Registrant issued a follow up assessment report that backed away from the importance of the tests and centered instead on a general lack of candour. He alleged that the Registrant ultimately distanced himself from the test results completely, and opts towards focusing on my distant past and encounters with previous Doctors, even though I was completely cleared of the charges. He also turns the statement I made to my Doctor in my file, into a history of these statements. [30] The Complainant submits that the consequences of having been diagnosed as a probable marijuana abuser were that he was sent for a one-year addiction rehabilitation program with hard core addicts and had his urine tested randomly for one year. The Complainant found it difficult to deal with the loss of his job after more than 30 years and the life-long stigma of being considered an addict. [31] In his appeal to his insurer, the Complainant stated as follows in response to the Registrant s Second Report to the insurance company: Everybody lies... Lying makes me a liar, not a drug addict. The tests before, during and after my visit to him, are the hard core evidence against regarding the stigma of an addict with which I have been

6 labeled. The Complainant also emphasized his safety record at work, and the fact that the previous IOMEs 10 years before did not identify a problem with drugs or alcohol. VII REGISTRANT S POSITION [32] The Registrant used the following methods of gathering information to arrive at his diagnosis. First, he conducted an interview, a physical examination and took two drug urine samples in office for testing from the Complainant. [33] Second, he reviewed the Complainant s past five years of medical records from the Family Physician. In those records he found the brief note from the Complainant s Family Physician from the July 2013 office visit, (later withdrawn) described above. He also obtained past reports from previous IOME s conducted 10 years previously. [34] Third, the Registrant stated in his second and third report to the insurance company that the main factor he relied on in arriving at the diagnosis was the Complainant s lack of candour. The Complainant verbally denied ever using marijuana and also denied his use of marijuana on a form he was required to fill out at the Registrant s office. [35] On September 14, 2015, after discussing the nature and purpose of an IOME (including that there is no doctor patient relationship ), the Registrant stated in his response to the College that: It is not uncommon for some individuals to have anxieties about coming for a 3-1/2 hour office visit evaluation and not uncommon for minimization and rationalization to take place with regard to substance use history, but typically, most individuals do end up providing a consistent, honest history that allows for diagnostic formulation and recommendations to be made that are in their best interest. [36] The Registrant disagreed with the Complainant s supporting documentation that TCH and CBD are found in hemp as one of many compounds that come from the marijuana plant. In his submission to the College, the Registrant referenced the Honesty Statement the Complainant filled out in his office, his emphasis on workplace safety, his analysis of the test results and his opinion regarding whether the test results could reasonably have been explained by the ingestion of the particular Hemp Product referenced by the Complainant. [37] At the time of his first report to the insurance company the Registrant s comments found in the Appendix were: Based only on the history provided by the Complainant, he would not appear to meet the diagnostic criteria for marijuana abuse or dependence. However the results of his verified urine drug testing which were reported by a certified laboratory, are very worrying and cause for concern with regard to his candour. (Record, page 64) VIII COMPLAINANT S RESPONSE [38] The Complainant submits that it was unreasonable for the Inquiry Committee to have accepted the Registrant s position that he could ignore established drug testing cut off levels in forming his clinical opinion that he relies on the presence in the

7 sample, a trace at any level at all, to reference it as a Positive. The Complainant further submitted: What kind of clinical evaluation strives to discount hard factual evidence, to be replaced by a character trait? When it was obvious to [the Registrant] that his claim to have tested me positive, was falling apart he began to focus primarily on the Lack of Candour, lying. Lying as I said does not make me a drug addict. If it did then [the Registrant] himself would be a drug addict. He states to you (amongst other things) that he called me 1 week later: it was three weeks and he knows it. There is no indication at all in my whole life history that the Registrant has uncovered, which has already been competently assessed; nor in my athletic years, the last ten; nor in my Doctor s notes; that could indicate any clear history of drug use at all. [The Registrant] is creating an alarm to sound, over lack of candour that has very little bearing on drug use nor [sic] addiction... [39] The Complainant states that the in-office tests conducted by the Registrant have no lab identification, nor office ID nothing to discern criteria, only tester s initials CB. He submits that since the laboratory test from that day s sample was negative, the office tests could not have validly tested positive or been regarded as such. [40] The Complainant submits that it was unreasonable for the Inquiry Committee to accept the Registrant s opinion that the cut-off levels are not relevant in Canada. The Complainant states that the Registrant cannot arbitrarily disregard those cut-off levels and merely state: If I am to err, I must err on the side of caution. The Complainant submits the cut-off levels themselves represent the recognized limits, a point that was not addressed by the Inquiry Committee. [41] The Complainant submits that by mixing the concepts of a positive result and the presence of a substance, the Registrant can creatively produce his positives out of my negative samples, so as to provide support for his unwarranted diagnosis: marijuana abuse disorder. [42] With regard to the Registrant s reliance on the statements made by the Hemp Product producers about it is unlikely that there would be false positives, the Complainant seeks to tender his exchange with the company and an article relied on by the Hemp Product producers, showing that their claims, relied on by the Registrant, are tied to the established drug testing cut off levels. The Complainant says it was unreasonable for the Committee to accept the Registrant s statement that: Hemp Protein could not have been implicated in [the Complainant s] positive immunoassay results; nor in the presence of THC in the GCMS lab test. IX COLLEGE S POSITION [43] With regard to the adequacy of the investigation, the College argues that the investigation was adequate, and that the Inquiry Committee gathered sufficient information to be able to assess the Registrant s conduct and to determine whether his assessment was reasonable. The College submits that its investigation and findings

8 about the family physician did not detract from the thoroughness of its investigation of the complaint against the Registrant. [44] With regard to the reasonableness of the disposition, the College emphasizes that it is not the Review Board s role to evaluate a medical professional s diagnosis or treatment, or to second-guess the Inquiry Committee s conclusion that a professional has met the acceptable standard of care. The College submits: In this case, the Registrant was a qualified addiction medicine specialist. He arrived at a diagnosis and treatment decision carefully, based on a comprehensive assessment inclusive of urine test sampling, self-administered questionnaires, structured interviews, and other diagnostic tools. He properly formed his opinion based not only on a test result that showed a THC metabolite level that he had reason to believe was not explicable by oral consumption of hemp products, but also took into account the fact that the Complainant had lied about never having used marijuana in his life. The Registrant s inference was therefore a reasonable one, even if other physicians might draw other inferences. In a submission to the Trust, the Complainant notably argued that: Lying makes me a liar, not a drug addict. [45] The College submits in its Statement of Points: 112 Furthermore, if hypothetically, the Registrant s inference was wrong something that neither the Inquiry Committee nor the Review Board may determine an erroneous conclusion is not attributable to the Registrant contravening professional standards but from a wrong inference being within the range of reasonable outcomes. The Inquiry Committee considered his opinion reasoned and within the range of acceptable medical judgments. [Record, page 62] X THE RECORD [46] The Record for this complaint contained 685 pages of information. The portion of the Record the Inquiry Committee Panel received was the complaint, and a subsequent submission from the Complainant, the responses from the Registrant and in this case the Family Physician s response. [47] Along with this information, the Inquiry Committee received a six page document, prepared under s.32(2) of the Act, entitled Reviewer s Summary and Points for Consideration (Reviewer s Summary). The Reviewer s Summary was written in the form of a draft letter to the Complainant. It includes a very brief analysis of the issues in the Record and poses three issues in the form of questions for the Panel s consideration and I quote: ISSUES FOR COMMITTEE CONSIDERATION 1. The complainant alleges that the Registrant misdiagnosed him with a substance abuse disorder thus recommended inappropriate therapy and monitoring. Based the information available to the Registrant at the time of the IOAME were his diagnosis and treatment recommendations reasonable? 2. The complainant alleges the Registrant has a conflict of interest with the monitoring and treatment organizations recommended. The Registrant stated that he has no personal or professional conflict with either organization.

9 3. The complainant alleges that his Family Physician documented a discussion of the use of medical marijuana thus initiating the IOAME and subsequent treatment recommendations. The Family Physician admits his documentation was inaccurate. Does the inaccurate documentation reach the level of regulatory criticism? [48] The Minutes show that two issues relating to the Registrant were discussed during the Inquiry Committee meeting on May 24, 2016: Issues: The Registrant: 1. Misdiagnosis of substance abuse disorder 2. Conflict of interest between the Registrant and the monitoring and treatment organizations recommended The Family Physician 1. Inaccurate documentation of patient s marijuana use Committee Discussion: The Committee reviewed the Registrant s medical documentation and considered his opinion to be reasoned and within the range of acceptable medical judgments. The Registrant s method appeared appropriately comprehensive and he described the interpretation of highly sensitive lab tests and information obtained through patient interviews. The Committee determined it was not unreasonable for the Registrant to consider the patient s dishonest answers to questions about drug use as the patient had signed an agreement and was aware of the necessity for honesty in the examination process. The complainant s recourse is to seek another physician s opinion. The Committee found no information to support the complainant s suggestion that the Registrant was in a conflict of interest in recommending the monitoring and treatment organization. [49] The Minutes also addressed the College s complaint about the Family Physician s inaccurate note taking for medical records. I have addressed that issue and the outcome above. [50] The Inquiry Committee found that the Registrant met the regulatory standard of care. XI ANALYSIS AND DECISION A. Adequacy of the Investigation [51] Review Board Decision No HPA-059 (a) outlines the parameters for assessing the adequacy of an adequate investigation in paragraphs [16] and [18]:

10 [16] The Review Board has determined in prior decisions that not all complaints will require a College to pursue every possible avenue of investigation, but a complainant is entitled to an adequate investigation. [18] The role of the Review Board in assessing the adequacy of an investigation is to determine whether the Inquiry Committee s investigation provided it with sufficient information to assess the particular complaints made against the Registrant. It is not the role of the Review Board to reinvestigate the complaint or substitute its decision for that of the Inquiry Committee. [52] One of the issues relevant to the adequacy of an investigation is the seriousness of the complaint. This is a case in which the Complainant suffered severe life altering consequences including loss of future income from a non-definitive diagnosis for possible abuse and probable addiction of the drug marijuana and a lengthy addiction treatment program. [53] I have looked at the information before the Inquiry Committee in my determination in assessing and reporting sufficient information of the complaint against the Registrant. [54] The adequacy of the investigation (concerned with the investigative process and diligence followed by the College) should not be confused with the reasonableness of the disposition. The question before me is simply: was the investigation adequate for the Inquiry Committee to arrive at a reasonable disposition on the facts of this case? On balance, I find that it was. There was a large volume of material produced on this matter and the Inquiry Committee received key portions of the Record. B. Reasonableness of Disposition [55] The arguments before the Review Board focused overwhelmingly on whether the disposition was reasonable. That will be my focus as well. [56] The Review Board s role when assessing the reasonableness of a disposition is to determine whether it falls within a range of outcomes that are defensible based on the evidence the Inquiry Committee had before it. [57] The Registrant and the College submit that it is not open to the Complainant to reargue the relative weight of these factors, and it is not open to the Review Board to determine whether the Inquiry Committee was right or wrong its role is to determine whether the conclusion falls within an acceptable range. The Registrant submits: In a case like this, the Review Board should proceed with caution and ensure that the College is afforded considerable deference when its decision turns on the application of its specialized expertise. And in this case, it is clear that the College is in the better position to assess whether or not an IOME was conducted in accordance with accepted professional standards. [58] The following paragraph concisely sets out the College s position: In this case, the Registrant was a qualified addiction medicine specialist. He arrived at a diagnosis and treatment decision carefully, based on a comprehensive assessment inclusive of urine test sampling, self-administered questionnaires, structured interviews,

11 and other diagnostic tools. He properly formed his opinion based not only on a test result that showed a THC metabolite level that he had reason to believe was not explicable by oral consumption of hemp products, but also took into account the fact that the Complainant had lied about never having used marijuana in his life. The Registrant s inference was therefore a reasonable one, even if other physicians might draw other inferences. In a submission to the Trust, the Complainant notably argued that: Lying makes me a liar, not a drug addict. But the problem with the Complainant lying or being a lier [sic] is that his lying permits an assessing physician to reasonably infer (as the Registrant did here that the Complainant does use marijuana, but stopping in order to pass a forthcoming drug test (by stopping in December ) and lied about using marijuana recently by denying, unwisely, that he had ever used marijuana. [59] The College submits that the issue for the Inquiry Committee (and the Review Board) is not whether the Registrant was right or wrong, but whether he formed his professional opinion in accord with professional standards. It argues that even if the Registrant s inference was wrong, that does not mean he breached professional standards, but merely drew a wrong inference from a range of reasonable outcomes, due to the fact of the Complainant s own dishonesty being a basis for such an inference. [emphasis added] [60] In support of its finding that there was no basis for regulatory criticism in this case, the Inquiry Committee s analysis was as follows: The Committee reviewed [the Registrant s] medical documentation, and considered his opinion to be reasoned and within the range of acceptable medical judgments. [The Registrant s] method appeared appropriately comprehensive, and he described the interpretation of highly sensitive laboratory tests and information obtained through patient interview. The Committee determined it was not unreasonable for [the Registrant] to consider the patient s dishonest answers to questions about drug use, as the patient had signed an agreement and was aware of the necessity for honesty in the examination process. The complainant s recourse is to seek another physician s opinion. The Committee found no information to support the complainant s suggestion that [the Registrant] was in a conflict of interest in recommending the monitoring and treatment organizations. The Committee concluded the portion of the complaint relevant to [the Registrant] without criticism, pursuant to s. 33(6)(a) of the Health Professions Act. [61] In reviewing these reasons, there is no doubt that the Inquiry Committee expressed a conclusion that the Registrant s opinion was reasoned and within the range of medical judgments ; that his method appeared appropriately comprehensive, that he described the interpretation of highly sensitive laboratory tests and that it was reasonable for him to consider the patient s dishonest answers to questions about drug use. [62] The problem is that these conclusions fail to disclose any meaningful explanation that was responsive to the key criticisms the Complainant advanced in detail. [63] It is recognized that inquiry committees are screening bodies, that their panels include medical professionals, that their time is limited, that they issue numerous decisions every year (sometimes numerous decisions per day), and that it would be too

12 much to require them to deliver lengthy and detailed reasons as if they were the discipline committee. At the same time, these committees, which are supported by College staff, exercise an important part of the College s public interest mandate. The legislature s decision to make their dispositions subject to reasonableness review means that these panels are not to be seen as infallible or entitled to blind deference. While reasonableness review does not allow the Review Board to simply second guess inquiry committee medical judgments, reasonableness review would be meaningless if it did not at least require Inquiry Committees to reasonably explain themselves in a fashion commensurate with the realities of the complaint they are dealing with. As stated in Review Board Decision No HPA-216(a), at para [39]: [39] Given the accountability purposes of the legislation, one aspect of this is that the Review Board s reasonableness assessment necessarily and properly gives special weight to the importance of an inquiry committee justifying its decisions (or that of the Registrar) in a transparent and intelligible way in the s.34 summary that the inquiry committee is obligated to provide to the complainant. This does not require that inquiry committees issue lengthy archival reasons. However, on its review the Review Board is to look to see whether and how inquiry committees have explained themselves on key issues, and given the obligations under s 16(2)(i.1) - to avoid too readily assuming that an inquiry committee has implicitly considered or decided thus or so where such an assumption is not readily evident or cannot be readily drawn from the Record. This is one example of where the Review Board s reasonableness review, given the statutory context and the purposes of the legislation, may appropriately differ from the reasonableness test as it might be applied by a court. (See also Review Board Decision No HPA-102 (a); 2014-HPA-103 (a); 2014-HPA- 104 (a) at paras. [44] and [70-90]) [64] What is a reasonable explanation will obviously depend on the circumstances. As was stated in another Review Board decision, some dispositions cry out for explanation : Review Board Decision Group File No HPA-G21 at para. [212]. [65] In my view, this is one of those cases. [66] As noted by the College in its submission para. [98]: The Complainant s IOME was a comprehensive, independent clinical evaluation undertaken for the purpose of providing an opinion to his employer s insurer, regarding on the Complainant s fitness to return to work. This reflects that the February 3, 2014 Terms of Engagement letter arranged for you to perform an independent medical examination, requested an assessment of his current clinical status and sought a report on any addiction issues which may be impacting the employee s presentation and recovery. [67] The February 2014 Report relied on the updated DSM-IV TR (Text Revision), which he quoted from in his February 2014 Report. It recorded that the DSM-IV (TR) divides Substance Use Disorders into Substance (Alcohol) Dependence and Substance (Alcohol) Abuse, and that the Dependence category was the potentially relevant category here: A syndrome characterized by a maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12 month period:

13 1. Tolerance [as defined by the need for increased amounts of the substance to achieve the desired effect or markedly diminished effect if the amount stays the same]; 2. Withdrawal The substance is often taken in larger amounts or over a longer period than was intended; 4. There is a persistent desire or unsuccessful attempts to cut down or control the substance use; 5. A great deal of time is spent [trying to obtain the substance or recover from its effects]; 6. Important... activities are given up or reduced because of substance use; 7. The substance use is continued despite knowledge [of its negative effects]. [68] One does not have to be a medical specialist to recognize that being found to have a probable addiction that meets the diagnostic criteria of the DSM-IV is a very different thing from being found to probably periodically or recreationally use a substance. One also does not have to be medical specialist to appreciate the extremely significant short-term and long-term personal, professional and financial consequences of receiving the diagnostic impression of Substance Use Disorder from an addictions specialist. [69] In arriving at the Diagnostic Impression of Substance Use Disorder ( Probable marijuana use disorder in a safety sensitive worker ), the February 2014 Report did not identify which of the three or more features was present. It instead stated: Based only on the history provided by [the Complainant], he would not appear to meet the diagnostic criteria for marijuana abuse or dependence. However, the results of his verified urine drug testing, which were reported by a certified laboratory, are very worrying and a cause for concern with regard to his candour. [italics in original] [70] The February 2014 Report also stated:... In my IME, [the Complainant] denied that he had ever used marijuana or cannabis products. Interestingly, the urine sample provided [by the Complainant] as part of the evaluation process in my office was confirmed to contain THC metabolite that would not be explained by [the Complainant s] report of him ingesting the hemp product that he takes regularly. [The Complainant s] apparent lack of candour with regard to marijuana use is very worrying and it casts doubt on all of the history he provided. If I am to err I must err on the side of caution and safety. The most likely diagnosis in this man s case is a disclosed [sic] and untreated marijuana dependence. If he was simply using marijuana on only an occasional basis, he should have been more likely to disclose that to me... Given that the most likely diagnosis... is one of marijuana use disorder, he would not currently be fit to return to work in his previous safety sensitive position. He needs to abstain... In my opinion, in the interest of safety, he will require formal assistance in that regard...

14 [71] As noted by the Inquiry Committee, and made clear in the Record, the Registrant s concerns about the Complainant s candour were only magnified when he saw the two earlier IME reports of 10 years previous. [72] The Registrant s April 8, 2014, letter stated that this new information does nothing to reassure me, and in fact it confirms for me that [the Complainant] was not being completely honest with me. In a safety-sensitive worker involved in responsible work, the use of marijuana would simply be an unacceptable risk especially in a man who was being dishonest about his use. [The Complainant s] apparent lack of honesty causes me grave concern and obviously casts doubt on much of the history provided... I could not consider [the Complainant] fit to perform safety sensitive work without abstinence-based treatment, followed by comprehensive monitoring. [emphasis added] [73] I pause to note that the Registrant s opinion about whether any marijuana use poses an unacceptable risk in his particular job is a very different question from the issue whether the Complainant was suffering from Substance Use Disorder (Probable Marijuana Disorder in a safety sensitive worker). I will return to this point below. [74] In his June 2014 Report, the Registrant categorically stated that the test results were not the basis for his treatment recommendations. It was solely, or mainly, the Complainant s lack of candour, bearing in mind that denial is a defining feature of addiction. [75] The Registrant s June 2014 Report spent considerable time addressing whether the Registrant was fit to return to work stating:...the key issue in this gentleman s case is safety. That means that [the Complainant s] safety at work, the safety of coworkers and the environment, but most importantly public safety is the priorities. When I am asked to determine fitness for work for any safetysensitive employee, there can be no compromise on safety. When an individual works in a safety-sensitive position, care must be taken that they have no medical condition; and also that they are not using any drug/chemical (either prescribed or not prescribed), that might potentially impair their ability to safely perform their duties). Given that marijuana use is the key issue that I am being asked to consider in this case I will expand on the important facts that I must consider as an occupational addiction medicine consultant when it comes to a safety sensitive worker who might choose to use marijuana... Later in the letter, the Registrant stated: Smoked marijuana, even recreationally, poses potential serious risks... As a physician who consults on occupational health and safety issues it would concern me if a person such as [the Complainant] made the choice to use marijuana... We do know that if a diagnosis of marijuana dependence truly exists then without treatment relapse to using again would be expected and that would be an unacceptable safety risk. In the end of the day, I could not in good conscience declare [the Complainant] to be fit for safety sensitive work until he has completed some acceptable primary treatment... aimed at abstinence and that his ongoing abstinence would need to be confirmed. [76] This squarely raised the issue for the Inquiry Committee as to whether the Registrant s clinical, diagnostic impression in this case was formed following a sufficiently disciplined and professional application of professional standards, or

15 whether it raised a professional standards problem by being formed via speculation and conjecture. A related issue was whether the Registrant strayed beyond the clinical question he was retained to answer, and whether he conflated the diagnostic question whether the Complainant suffered from probable Substance Use Disorder with the normative question whether any marijuana use is consistent with the type of job he held. The reasons given by the Inquiry Committee did not explain its answer to either of these questions. [77] The College acknowledges that the Registrant s diagnostic opinion was based on an inference, but it submits that the inference was reasonable on the merits. The problem however is that (as both the College and Registrant have emphasized) the Review Board does not have the clinical experience to assess that without meaningful reasons being given by the Inquiry Committee. I will say that, to a lay person, it seems a dramatic thing to affix a person with a probable psychiatric diagnosis based on a lack of candour; to a lay person, a lack of candour could equally speak to the refusal to admit recreational use if a person believed that even occasional use could have adverse employment consequences. [78] As previous Review Board decisions have made clear, the College, when it appears as a party before the Review Board, is not the Inquiry Committee. It cannot be assumed that the College s submissions to the Review Board, through counsel, represent the reasons of the Inquiry Committee: Review Board Decision Grouped File No HPA-G23 at paras. [ ]. What I must review is the explanation given by the Inquiry Committee. What the Inquiry Committee actually stated on that issue was this: The Committee determined it was not unreasonable for [the Registrant] to consider the patient s dishonest answers to questions about drug use, as the patient had signed an agreement and was aware of the necessity for honesty in the examination process. [79] The statement that the Registrant could reasonably consider the patient s dishonest answers in forming his diagnosis is a very different thing from finding that it is reasonable for an addictions specialist, by way of inference, to base a probable clinical psychiatric diagnosis on a lack of candour by the person being assessed. If that is the Inquiry Committee s view of the relevant professional standard, transparency and accountability demand that it say so clearly based on its expertise, or with benefit of any specialized experience it may wish to retain (there was no information as to the composition of the Inquiry Committee in this case and of its expertise to assess the addiction specialist s opinion). If on the other hand, the Inquiry Committee considers a clinical diagnostic impression based on denial and previous recreational use to be speculative, then it needs either to more clearly explain its decision to dismiss the Complaint under s.33(6)(a) of the Act, or reconsider its conclusions. [80] The reasonableness requirement for more explanation by the Inquiry Committee in this case is intensified by the Registrant s repeated statements in his reports to the insurer and submissions to the College that he was assessing whether the Complainant was fit for a safety sensitive position and thus required abstinence-based treatment. The Registrant stated in his January 25, 2015, letter to the College that the impairing effect of marijuana can last more than 24 hours. For an individual like the complainant

16 who works in a safety sensitive position, this is an important part of any occupational evaluation. [81] Again, one does not need to be a medical specialist to recognize that the question whether a person has a probable Substance Use Disorder is a very different question from whether a person should be working in a safety sensitive job if they aren t totally abstinent. While the latter question may well be relevant to an employer, it is (as suggested by a submission of the College) ultimately for the policy of the employer to determine whether total abstinence is a requirement of the position. The question for the Inquiry Committee was whether the Registrant met the requisite regulatory professional standard in offering his diagnostic opinion. [82] I do not know if the Inquiry Committee takes the view that no professional responsibility issues can arise if the specialist in an IOME chooses to offer an opinion (separate from his diagnosis) concerning mere use and total abstinence in a safety sensitive context. If so, reasonableness requires the Inquiry Committee to explain itself in that regard. If the Inquiry Committee does hold this view, reasonableness would require that it explain whether the Diagnostic Impression itself, given its significance and implications, was so flawed and speculative as to raise professional responsibility issues. Depending on its answers, a reasonable disposition might also find it necessary to address whether, as a matter of professional responsibility, the two issues ought to have been clearly distinguished in the Report so that the insurer or employer could clearly appreciate the difference and make its own judgments about requiring addictions treatment and monitoring if the issue is one of recreational use rather than Substance Abuse. [83] The Complainant submitted that the Inquiry Committee disposition was unreasonable because it failed to recognize that the Registrant s February 2014 Report setting out the original probable diagnosis relied more heavily on the presence of THC metabolite that the laboratory tested as negative (below the cut-off). The Complainant took strong issue with the Registrant s statement that the urine sample at his office was confirmed to contain THC metabolite that could not be explained by [the Complainant s] report of him ingesting the hemp product that he takes regularly. The Complainant submits that the Inquiry Committee should have taken regulatory action against the Registrant for even suggesting that the Complainant had used marijuana when the lab test (contrary to his in-office tests) showed that he was below the cut-off level of 15ng/mL, and for not more fully researching the question as to whether regular consumption of hemp products can produce THC levels above zero. [84] As I see it, this argument ultimately relates back to the issue of use versus substance abuse. While the Complainant objects to the Registrant s suggestion that he used marijuana prior to the February 19 test, that was not the key regulatory issue for the Inquiry Committee. The Complainant has acknowledged both occasional prior use, as well as lack of candour. As noted above, the key issue for the Inquiry Committee was whether, based on those two factors, the Registrant s diagnostic opinion was one that could reasonably be reached within the scope of his professional responsibility.

17 [85] Finally, I will set out my finding that I have not admitted the Additional Information tendered by the Complainant on this review, as it is not reasonably required by me for a full and fair disclosure of all matters related to the issues under review. XII ORDER [86] Section 50.6(8) of the Act states: 50.6 (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. [87] Pursuant to s. 50.6(8)(c) I am sending this matter back to the Inquiry Committee for reconsideration with the direction to issue a new decision that address the concerns set out under the heading Reasonableness of the Disposition above. I wish to make it clear that nothing in this Order prevents the Inquiry Committee from engaging in such additional investigations it considers appropriate before issuing a new disposition, including retaining an expert in addictions medicine or from adding a physician with such expertise to the Inquiry Committee s membership. Victoria Kuhl Victoria Kuhl, Panel Chair Health Professions Review Board