Date: 19981008 Docket: CA022022 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: DENNIS BEALE PLAINTIFF (RESPONDENT) AND: DR. RIFFAT SALEEM NAGRA and DR. JOHANNES VAGN ASFELDT DEFENDANTS (APPELLANTS) AND: THE COLLEGE OF PHYSICIANS AND SURGEONS OF BRITISH COLUMBIA INTERVENOR AND: DAWSON CREEK AND DISTRICT HOSPITAL SOCIETY DEFENDANT Before: The Honourable Chief Justice McEachern The Honourable Madam Justice Southin The Honourable Mr. Justice Hall James M. Lepp Counsel for the Appellants Kelly R. Doerksen Counsel for the Respondent David Martin Counsel for the Intervenor Place and Date of Hearing Vancouver, British Columbia 24th September, 1998 Place and Date of Judgment Vancouver, British Columbia 8th October, 1998 Written Reasons by: The Honourable Madam Justice Southin Concurred in by: The Honourable Mr. Justice Hall Dissenting Reasons by: The Honourable Chief Justice McEachern (P. 14, para. 34) Reasons for Judgment of the Honourable Madam Justice Southin: [1] This appeal from a judgment of a chambers judge dismissing an appeal from an order of a master made pursuant to Rule 26(10) ordering that certain documents be produced for inspection and copying by the plaintiff, raises the issue of the proper construction of subsections 61 (3) and (4.1) of the Medical Practitioners Act, R.S.B.C. 1979, c. 254, as amended, now R.S.B.C. 1996, c. 285, ss. 70(7) and 70(9). [2] The issue is to what extent may a physician, who has been the subject of an inquiry by the College of Physicians & Surgeons of British Columbia into his care of a patient, rely upon these provisions, in an action against him for negligence in the care of that patient, to object to the production of documents in his possession which came into being as part of the inquiry by the College. [3] In 1991, the respondent's wife, while under the care of the appellants in Dawson Creek and District Hospital, died. In 1993, her widower sued the appellants, alleging that they had breached their duty of reasonable care and skill. [4] In July 1992, the respondent had complained to the College. The College thereupon made inquiries of the appellants. The appellant Nagra replied by letter dated 5th August, 1992, and the appellant Asfeldt by letter dated 19th August, 1992. On 14th December, 1992, the College, taking this matter courteously and seriously, perhaps because Mrs. Beale, a woman of 48, died in consequence of what is generally thought of as routine surgery, wrote to Mr. Beale thus: Following a careful review of this material, Committee members found that they could not come to an opinion. Therefore, an independent medical/ surgical opinion will be obtained from a specialist. Following this independent review, Committee members will come to an opinion, and this will be conveyed to you in due course. Thank you for your patience while awaiting this review. [5] The specialist consulted was Dr. Galliford, who delivered to the College a report of 22nd December, 1992. [6] In 1993, the Practice Performance and Conduct Committee of the College required the appellant Asfeldt to appear before it. He retained Mr. W. J. McJannet to represent him. In Mr. McJannet's words: 7. In early June 1993 I wrote to the College and requested that the College provide a copy of the report they obtained to enable Dr. Asfeldt to have the opportunity of properly preparing himself to deal with the issues to be raised by the Practice Performance and Conduct Committee. 8. In reply to this request, the College provided me with a copy of Dr. Galliford's report to the College of Physicians and Surgeons dated December 22, 1992. [7] On the 20th July, 1993, the Committee, having concluded its review, caused the Deputy Registrar of the College to write to Mr. Beale thus, in part: The independent specialist's report was also reviewed, in particular with regard to Mr. Beale's specific questions. The consultant noted that, in his experience, it is not uncommon to operate on patients with a previous and/or recurrent history of peptic ulcer disease, and that it was rare to have post-operative complications referable to the ulcer disease. He noted that so called stress ulcers can occur post-operatively, but that such ulcers nearly always result in G.I. bleeding rather than a perforation. He also noted that it was very difficult to diagnose a perforated ulcer post- operatively, but this did not preclude an adequate investigation of a patient's deteriorating status. Regarding the surgery itself causing the perforation, the consultant felt that there was no direct causal relationship. However, indirectly the surgery could be considered a contributing factor, but that this would have to be considered a rare occurrence. The specialist was critical of the post-operative care, as he felt that there was evidence of a significant worsening of the patient's condition on November 20th, particularly after 2000 hours, and there did not appear to have been adequate intervention at this time to establish a diagnosis and effect appropriate treatment. In particular, it was felt that a second surgical opinion should have been sought at this time, noting that a general surgeon was available within the community, if there was any doubt as to the seriousness or the nature of the problem. * * * After a lengthy initial review, Committee members interviewed Dr. Asfeldt at the last meeting. Committee members were critical of Dr. Asfeldt's post-operative care of Mrs. Beale, particularly as there appeared to have been an inadequate response to her deteriorating status on the evening of November 20th. It was the Committee members' opinion that a more aggressive intervention should have been instituted, with a second opinion if necessary, and a decision made as to whether or not a laparotomy would be performed to determine the cause of the complication and deal with it effectively. [8] One can, I think, fairly infer from this letter that the opinion of Dr. Galliford, whether as contained in his letter to the College, if it could be adduced in evidence, or extracted from him in the witness box, might assist the respondent in establishing or furthering his cause of action. [9] The question of whether Dr. Galliford could be brought to court by subpoena and forced to give his opinion is not before us. [10] In the list of documents delivered pursuant to Rule 26(1), the appellant raised by way of objection to production, what might compendiously be called legal professional privilege. [11] Before the master, the grounds taken were considerably different from those in the list. In this Court, counsel for the respondent is content to have us proceed on the footing that the objections raised before the master were properly taken. [12] As the master expressed them, the grounds were: (a) the documents came into existence in the context of quasi-disciplinary proceedings and/or peer review and, therefore, as matter of policy, ought not be produced to a plaintiff in the context of a civil action; (b) the documents came into existence as part of a confidential and in-camera inquiry into alleged professional misconduct and, therefore, ought not to be produced for the reason on the grounds set out in Slavutych v. Baker, [1976] 1 S.C.R. 254; (c) the documents came into existence in the context of a related proceeding and, applying the analysis in Hunt v. T & N plc (1995), 4 B.C.L.R. (3d) 110 (C.A.) "requires that the documents remain confidential, absent a court order"; (d) insofar as Document #3 is concerned, this document was acquired by one of these Defendants' solicitor in the context of the College investigation and, therefore, falls within the ground of privilege as enumerated by the Court of Appeal in Hodgkinson v. Simms (1988), 33 B.C.L.R. 129 (C.A.) [Document #3 is Dr. Galliford's letter.] [13] The master, having referred to Bergwitz v. Fast (1980), 18 B.C.L.R. 368, 108 D.L.R. (3d) 732 (B.C.C.A.) and F. v. A Psychiatrist (1984), 53 B.C.L.R. 216 and 54 B.C.L.R. 319 (B.C.C.A.), concluded thus: 11There is nothing in the relevant provisions of the Medical Practitioners Act which lead me to conclude the documents are privileged or that the categories of privilege ought to be enlarged to include the documents produced by the defendants in response to the complaint by the plaintiff. The Act does restrict the disclosure by others of the material but does not create a statutory privilege as suggested. 12There is no doubt that the documents produced by the defendants were produced in confidence and subject to the limitations of the Medical Practitioners Act. That said, the statements of the defendants Nagra and Asfeldt are not privileged and ought to be disclosed. 13Different considerations apply to the report of the expert which was commissioned by the College in the course of its investigation and later disclosed to counsel for the defendant Dr. Asfeldt during a review of the circumstances given rise to the plaintiff's initial complaint to the College. 14That expert, Dr. Galliford, is not compellable in these proceedings nor is his report compellable in these proceedings because of the provisions of the Medical Practitioners Act. 15Nonetheless, on the authority of Bergwitz and F., the report could have been produced on application to the College under R 26(11). It is clearly relevant and not privileged because of the Act. [14] Upon the appeal to him, the learned chambers judge upheld the master. He asked himself whether the appellants and Dr. Galliford were "persons employed in the administration of the Act". He held that they were not. In doing so, he considered a discussion in the Legislature in May 1994. Whatever may be the correct principle now governing the use of the proceedings in the Legislature as an aid to construction, the proceedings of May 1994 could not be helpful, for most of what is now s. 61, including the critical subsections, were first enacted in 1987, and, with all respect, in my view, the provisions were enacted to overcome, insofar as the medical profession was concerned, the judgments in F. v. A Psychiatrist and Bergwitz v. Fast, which, of course, was not about a physician but about a dentist. [15] Having rejected the ground of objection founded upon the statute, the learned judge also rejected the other grounds, saying, in effect, that whether any of them should be sustained was a matter of discretion for the master and the master had not committed any reviewable error in the exercise of his discretion. [16] I do not find it necessary to address the issue of whether the learned judge erred in viewing the master's decision on these other grounds as coming within the concept of discretion- ary orders, as, in my opinion, for reasons which I shall adumbrate hereafter, these appeals fall to be determined in the proper construction of subsections 61(3) and (4), which cannot be viewed in isolation. [17] I set out the whole of s. 61 as it stood at the relevant date: 61. (1) No action for damages lies or may be brought because of anything done or omitted in good faith in the performance or purported performance of any duty, or in the exercise or purported exercise of any power, under this Act by the college, the registrar, a deputy registrar, the special deputy registrar, an employee of the college, a member of the council, the executive committee or a committee appointed under this Act. (1.1) No action for damages lies or may be brought against a person for making a report to the college in good faith concerning the conduct, mental condition, capability or fitness to practise of any member or former member. (1.2) No action for damages lies or may be brought for anything done or omitted in good faith as a member of a patterns of practice committee, a peer review committee, a hospital or laboratory accreditation committee or another body to which the member or officer is nominated or appointed by the college or which functions, with the approval of the college, to improve health care or services in British Columbia. (1.3) No action for damages lies or may be brought for anything done or omitted in good faith as a person who provides a service under the direction of a member or officer of the college to a committee or other body referred to in subsection (1.2). (1.4) This section does not absolve the college from vicarious liability for an act or omission for which it would be vicariously liable if this section were not in force, and (2) No action lies against a medical practitioner for disclosing or submitting to the college or its nominee information or records or copies of records relating to the care of a patient where the disclosure or submission is made in good faith. (3) Subject to the Ombudsman Act, each person employed in the administration of sections 48 to 57, including a person conducting an inquiry or investigation, shall preserve confidentiality with respect to all matters or things that come to his knowledge or into his possession in the course of his duties except (a) as may be required in connection with the administration of sections 48 to 57 and any rules relating to those sections, or (b) as may be authorized by the executive committee where it considers disclosure to be in the public interest. (4) A person to whom subsection (3) applies, must not, insofar as the laws of British Columbia apply, give, or be compelled to give, evidence in a court or in proceedings of a judicial nature concerning knowledge gained in the exercise of a power or duty under sections 19.1, 25.1 or 48 to 57 except in a proceeding under this Act or the rules under section 4. (4.1) The records of a person, to whom subsection (3) applies, are not compellable in a court or in proceedings of a judicial nature insofar as the laws of British Columbia apply except in a proceeding under this Act or the rules under section 4. (5) A person who contravenes subsection (3) commits an offence. [18] Also germane are ss. 48 to 57, now numbered 51 to 66 in the 1996 revision, and the rules promulgated by the College. [19] When Mr. Beale complained to the College, his complaint was first considered by the Registrar or a Deputy Registrar (Rule 135). He or she then referred the complaint to the Committee which is now called the Quality of Medical Performance Committee. [20] By Rules 140, 143 and 145, that Committee, which is a standing committee duly appointed under the statute, considered the matter and inquired into it, and the letter of the 20th July, 1993, embodies the conclusion of that committee's proceedings. [21] If the standing committee had followed the course, as it was entitled to do under the rules, of sending the matter to council or the executive committee, the council or the executive committee might have appointed an inquiry committee under s. 51 or s. 53. Such an inquiry may ultimately lead under s. 60 to the member's name being erased from the register or to some other form of censure. [22] In my opinion, contrary to the submission made by counsel for the respondent in this Court, the processes of the standing committee are an integral part of the administration of ss. 48 to 57 of the Medical Practitioners Act. [23] My reason for concluding that what is in issue here is purely a matter of statutory construction is simple. When the Legislature has addressed a question Ä promulgated what appears to be a code on the subject Ä the court should not be quick to find ways to undermine the legislative purpose. The plain purpose of s. 61 is to insulate, from the processes of civil litigation, the College and those engaged by it to assist in its processes concerning the quality of medical care in the Province. What the College does or does not do is not to be used in medical malpractice suits. [24] Whether it is in the public interest to so insulate the College was and is a matter for the Legislature. [25] Mr. Lepp argues for the appellants, supported by Mr. Martin for the College, that both the appellants' and Dr. Galliford's letters come within subsection (4). All he says are persons "engaged in the administration...". [26] In my opinion, the appellants are not such persons. They are persons against whom the Act is being administered. Thus, the communications by them to the College do not fall within the prohibition. [27] Dr. Galliford, consulted as he was by the College, which does not, I think, keep a staff of specialists, is a person "employed in the administration...". I do not give the word "administration" a narrow construction. [28] Had his report not been sent to the appellants, subsection (4.1) would be a bar to this production. The appellants could not have obtained it from him or from the College. [29] Because, however, as part of the inquiry process Ä in order to permit the appellants to make full answer and defence Ä a copy was sent to the solicitor for the appellant Asfeldt, is that copy now out of the protection of the section? [30] I think not. To so hold would either undermine the fairness of the inquiry process Ä it might lead to the College not giving the member a full opportunity to meet the findings of consultants as expressed by them in writing Ä or would undermine the plain intent of the section. Whether one calls this a record of Dr. Galliford or a record of the College, the existence of this copy is not sufficient ground for ignoring the plain purpose of the section. [31] In my opinion, Rule 26(10) must be read in the light of s. 61. Implicit in it are the words, "Subject to any statutory provision to the contrary...." Here there is a statutory provision to the contrary. [32] I would therefore allow the appeal from the order of the chambers judge dismissing the appeal from the master and substitute for the order below an order allowing the appeal from the master by striking out "3. December 22, 1992 Letter from Dr. Galliford to the College of Physicians and Surgeons of British Columbia". [33] The costs of this appeal shall be costs to the appellants in the cause. In accordance with the order giving leave to the College to intervene, it is not entitled to costs. "THE HONOURABLE MADAM JUSTICE SOUTHIN" I AGREE: "THE HONOURABLE MR. JUSTICE HALL" Reasons for Judgment of the Honourable Chief Justice McEachern: [34] I agree with the Reasons of Madam Justice Southin that the Defendant physicians were not engaged in the administration of the relevant sections of the Medical Practitioners Act and that they must disclose for inspection the letters they each wrote to the College. [35] I regret that I am unable to agree, however, that Dr. Galliford was such a person. In my view, he had nothing to do with the administration of the Act. Instead, he was in the position of a witness who provided expert evidence to the Committee. While the Committee or the College might not be required to furnish a copy of his report, that is not before us and I see no basis for extending that protection to the Defendant physicians who had a copy of the report in their files. As defendants in a lawsuit I believe that, absent privilege, they were required to make discovery of any relevant document or any document that might lead to a chain of inquiry into the merits of the case. [36] In other words, I see no statutory language in s. 61 or elsewhere that creates any privilege for such documents in the possession of the defendants. [37] This brings me to Mr. Lepp's argument, based upon Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (B.C.C.A.), that the report in question was protected by what I call solicitor's brief privilege simply because Mr. McJannet, counsel for one of the defendants, asked the College for it in order to prepare his client's case before the committee. Apart from the fact that this case is far different from Hodgkinson, I do not believe asking for such a report in these circumstances is the kind of solicitor's care and skill that gives rise to a privilege. The governing passage in Hodgkinson, in my view, is found at p. 142 in the majority judgment: It is my conclusion that the law has always been, and, in my view, should continue to be, that in circumstances such as these, where a lawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief, for the purpose of advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless his client consents, to claim privilege for such collection and to refuse production. (emphasis added) [38] As the evidence shows, the defendant physicians were advised Dr. Galliford was being asked for an opinion, and they knew an unfavourable opinion had been given. The existence of a copy of their report in their files was disclosed in their list of documents thus taking this case entirely out of the factual situation in Hodgkinson where the identity of the author and the nature of the documents was kept confidential by counsel for the plaintiffs by an artfully worded disclosure in order to prevent defendant's counsel: [F]rom looking into [opposing counsel's brief], to learn what he knew and what he did not know, and the direction in which he is proceeding in the preparation of his client's case. (at p. 143) [39] As I have said, this is not a case where there was the exercise of sufficient legal skill and knowledge in obtaining this report to support a claim for privilege. [40] I would dismiss the appeal. "THE HONOURABLE CHIEF JUSTICE McEACHERN"