It is a common feature of statutory self-governing professional regulatory bodies that they are granted authority by the Legislature to regulate the conduct of their members in the public interest. This typically includes the power to investigate complaints about members’ professional conduct and competence, and to “screen” complainants through the investigative process, in order to make an initial assessment of whether the allegations raised by the complaint, and the evidence supporting them, are of sufficient concern to warrant referral to an adjudicative discipline hearing, or whether the matters raised by the complaint may be resolved by other means or dismissed without further action.
Despite the preliminary nature of decisions during the investigative phase, the affected member is entitled to procedural fairness during the investigation, because of the substantial interests he or she ultimately has at stake in the professional discipline process, including the right to practise the profession, potential loss of livelihood, and professional reputation. The evolving law in this area has also recognized complainants as having a sufficient interest in a fair process for review and consideration of their complaints to attract a degree of procedural protection at the initial investigative stage; however, the complainant’s interest in a fair process must be balanced against the rights of the member against whom the complaint is made, including the member’s privacy rights and the applicable confidentiality obligations of the regulator.
This paper considers the competing procedural rights of members and complainants at the investigative stage of professional complaint processes, and the tension between those procedural rights, in the particular context of disclosure to both the member and the complainant at the investigative stage. It also discusses how these issues are transformed and dealt with by the Health Professions Review Board in the context of the external review process established for health profession colleges in British Columbia under the Health Professions Act.
This paper was prepared by Jason Herbert, Partner, delivered on April 4, 2014 as part of the Continuing Legal Education Society of BC's Self-Governing Professions program. The author gratefully acknowledges the substantial contributions of Todd Shikaze, an articling student, who provided invaluable assistance with the research and preparation of this paper.
View the full paper here.