Complaining complainants: Right to seek review

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photograph of Dale Atkinson
Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB.

Readers of this column are familiar with the concept of government regulation in the interest of public protection. The introduction of government into the licensure, renewal, and enforcement of social work practice includes a fairness component. This fairness doctrine is referred to as due process or fundamental justice. In short, fairness in the process is required because the government mandates that practitioners must receive the governmental credential (license or registration) in order to lawfully engage in social work practice, refer to themselves as social workers, or both.

This fundamental fairness requires that procedural and substantive due process be afforded to applicants and licensees. Individuals are entitled to a fair process consistently enforced. In short, fundamental justice/due process requires that the government provide notice and an opportunity for the individual to be heard before taking an adverse action. Significant legal decisions address whether licensees/registrants have been afforded these basic protections.

Worthy of consideration are the rights afforded to complainants, that is, persons who allege to have been wronged by practitioners or have observed actions that violate legal standards. These persons have the right to file a complaint with the government agency for administrative investigation and, if deemed appropriate, administrative prosecution. Administrative actions are distinguished from civil and criminal actions. Civil actions, such as malpractice, adjudicate a matter only between the parties to the litigation. Remedies consist of monetary compensation for loss and other solutions that generally affect only the involved parties.

Criminal actions are adjudicated for the benefit of society as a whole and have the potential to remove a defendant’s rights, including incarceration. The government, on behalf of society, prosecutes persons alleged to have violated criminal laws, and the defendants are afforded specified rights. These rights include the fairness principles described above. In the end, society is the beneficiary of criminal adjudication. Similarly, administrative prosecutions also are undertaken for the benefit of society and take into consideration the rights of all parties involved, with sanctions that include loss of the right to practice the profession. The remaining question is “What right, if any, do complainants have in the administrative arena?” Consider the following.

Counsel's column

A person attended a presentation given by a psychologist at a public library. The lecture covered the topic of gender identity in children and youth. The attendee (Complainant) filed a complaint against the psychologist (Registrant) with the College of Psychologists of British Columbia (College), the entity that regulates the practice of psychology in British Columbia. The complaint alleged that the Registrant violated several sections of the College’s Code of Conduct, namely that the lecture “resembled ‘recruitment’ rather than clinical care.” The Complainant submitted a transcript of the presentation and questioned whether the Registrant was competent.

The Registrar sought additional input from the Complainant to clarify what portions of the transcript supported her allegations. The Complainant declined to specify where and how the transcript supported her allegations and left it to the College to identify the “precise violations of core competencies or standards of practice.” However, the Complainant did provide the College with an affidavit from court proceedings that were under a publication ban but involved the Registrant and a conflict between a transgender adolescent and the teen’s father. The Complainant refused to disclose how she came into possession of the affidavit, and the Registrar ultimately refused to consider it as evidence.

In the course of its investigation, the College provided the Complainant with responses from the Registrant’s attorney and engaged in significant interactions with her. These interactions included seeking additional information and articles that supported her complaint. Indeed, the Complainant appeared to be allowed to “rebut” the arguments made by the Registrant’s counsel, including a recommendation that the complaint be dismissed as vexatious and made in bad faith. All such correspondence was provided to both the Complainant and the Registrant/Registrant’s counsel.

The Registrar of the College accepted the transcript “at face value” and considered whether it provided evidence of misconduct or incompetence that warranted referral to the Inquiry Committee (Committee). Under British Columbia law, the Registrar in consultation with counsel reviews and investigates complaints. The Registrar must deliver to the Committee the complaint, an assessment of the allegations and evidence, and a recommendation for disposition.

An assessment of the evidence found that there is no consensus on the answers to issues related to gender identity in children and youth. This lack of consensus transcends not only psychologists but other experts in related fields. It appeared that the Complainant simply disagreed with the position(s) taken by the Registrant. Accordingly, the Registrar’s counsel determined that the complaint was subject to dismissal under law. In particular, the Registrar’s counsel found the complaint to be “trivial, frivolous, vexatious, or made in bad faith.” However, the dismissal recommendation from the Registrar was premised upon a finding that the complaint “contained allegations that, if admitted or proven, would constitute a matter other than a serious matter, subject to investigation by the Inquiry Committee.”

The complaint and recommended disposition were forwarded to the Committee. The Committee determined not to direct the Registrar to proceed and, consequently, agreed to the dismissal. A letter dated May 20, 2020, was communicated to the Complainant notifying her of the dismissal determination.

British Columbia law allows a complainant to seek a formal review of the complaint disposition. Within 30 days of the disposition, a complainant through written notice may seek a review of the disposition by a Review Board. If the disposition is properly “appealed,” the Review Board must consider one or both of the following: a) the adequacy of the investigation conducted respecting the complaint, and b) the reasonableness of the disposition.

The Review Board operates on the record, which includes the Committee’s written decision and the contents of the investigative file. While bound by the record, the Review Board may consider additional evidence to ensure a full and fair disposition. The Review Board process consists of two stages. In stage 1, the Review Board may confirm the disposition without the need for submissions from the College and/or the Registrant. If determined necessary, the Review Board can require stage 2 where submissions are made by the College and Registrant with an opportunity for the Complainant to reply.

In this case, the Complainant exercised her right to seek a Review Board determination by timely filing a lengthy submission and additional evidence.

In a comprehensive opinion, the Review Board determined that the matter could be resolved under a stage 1 analysis and without the need for additional submissions from the parties or Complainant. It held that the record supported the dismissal of the complaint. The Review Board examined the adequacy of the investigation and found the disposition was set forth with sufficient transparency.

This Review Board opinion describes in great detail the rights afforded to a complainant in an administrative proceeding against a registrant. Recognition of the rights of a complainant provides an added measure of protection from a potential disservice to such persons who feel that they have not been adequately served. As noted earlier, the rights of the registrant are subject to fundamental justice and due process. Granting rights to a complainant is an interesting concept that attempts to acknowledge the important role played by a person complaining of a registrant’s acts.

It can be argued that recognizing rights in complainants opens the door to endless appeals and use of government resources. Furthermore, the effect on the registrant of any reversal or remand based on a complainant exercising these review rights triggers several interesting questions. It would be anticipated that the complainant is asking the College to pursue an administrative prosecution (as in this case) or, in the event of a finding of wrongdoing, a more severe sanction. At what point are registrants granted rights to defend their credentials or introduce additional evidence into the record?

The nature of administrative proceedings contemplates government, on behalf of its citizens, seeking an adverse action for the benefit of all. Interjecting rights to complainants inches the proceedings toward a dispute between individuals rather than between the government and registrant. Individual disputes are resolved through civil proceedings for the benefit and detriment only of the parties. In this case, the Complainant seemed to play an important role in shaping the investigative phase of the process. The expertise of the College should be determinative of the final decision.

Complainant v. College of Psychologists of British Columbia, 2021 BCHPRB 110