Canada: B.C. Court Of Appeal Confirms The Scope Of Section 51(2)(B) Of The Evidence Act

B.C. Court of Appeal confirms the scope of section 51(2)(b) of the Evidence Act: records produced while investigating a physician's professional conduct at a hospital are barred from production in legal proceedings even if those records are not ultimately produced before or submitted to a quality assurance hospital committee as long as they are produced for the purposes set out in 5.51

In its recent ruling in Nagase v. Entwistle, 2016 BCCA 257 ("Nagase"), the B.C. Court of Appeal confirmed the scope of section 51(2)(b) of the Evidence Act, which prohibits the  production of records in a legal proceeding which were "compiled or made by a witness for the purpose of producing or submitting it to a [hospital] committee".  In particular, the Court found that the protection granted by section 51(2)(b) of the Evidence Act extends to correspondence created in the course of investigating a physician's professional conduct at a hospital, even if that correspondence is not ultimately produced before or submitted to a hospital committee, so long as the purpose of the correspondence meets the requirements of the section.

Nagase arose as a result of complaints about the conduct of a locum physician in the emergency room of a Hospital.  While working as an emergency room physician, the physician became concerned about the manner in which a non-acute patient was admitted to emergency. In order to voice his concerns, he interrupted an unrelated meeting that the Hospital's Chief of Staff was conducting.  Towards the end of his shift, the physician initiated another discussion about his concerns with the Chief of Staff and the nursing staff in the middle of the emergency room and in front of a patient.  The Chief of Staff was concerned about the tenor of the discussion and he characterized the conversation as disrespectful and unprofessional. The nurses also expressed concerns.

The physician then met with the Chief and two other hospital staff members to discuss the incident. At that meeting, the physician indicated his intention to leave the hospital. He later tendered his resignation, effective some months later.

After the meeting the Chief of Staff sent an e-mail and a formal letter to the physician summarizing his concerns about his conduct. Copies of the e-mail and the letter were forwarded to a medical director at the Health Authority, and to the Chief of Staff at another Hospital, where the physician held a permit to practice.

The Chief and the Medical Director met with the physician and his counsel to further discuss his conduct.  After the meeting, the Medical Director exchanged several e-mails with other medical directors at the Health Authority and also sent a formal letter to the physician summarizing his concerns about the conduct and outlining a path forward.

After resigning from his position at the Hospital, the physician brought a civil claim against the Chief, the Medical Director, the Hospital and the Health Authority IHA (collectively, the "Defendants") alleging, among other things, that the correspondence sent by the Chief and the Medical Director (the "Correspondence") was defamatory of him and that the Hospital and IHA were vicariously liable for such defamation. During the course of the legal proceedings, the physician applied to the B.C. Supreme Court for an order to produce the Correspondence for use in the legal proceedings against the Defendants. The Defendants opposed the application for production of the Correspondence under section 51(2)(b) of the Evidence Act and applied for an order striking the physician's civil claim.

In the B.C. Supreme Court, Justice Weatherhill confirmed, as per Sinclair v. March, 2000 BCCA 459, that the purpose of section 51(2) of the Evidence Act is to protect efforts made by hospitals to ensure that high standards of patient care and professional competency and ethics are maintained, by ensuring confidentiality for documents created by those involved in the committees entrusted with this task. Justice Weatherhill found that:

  1. Both the Medical Director and the Chief of Staff had standing obligations, as part of their roles in administering the professional competence and ethics program of the Health Authority Medical Advisory Committee (the "HAMAC"), to investigate and address the physician's professional conduct.
  2. The Correspondence was created as a direct result of their investigation into the physician's professional conduct.
  3. The settlement of the matter before it reached the HAMAC did not remove the protection afforded by section 51(2)(b) of the Evidence Act.

Based on the above findings, Justice Weatherhill concluded that the Correspondence was protected from production in the legal proceedings by section 51(2)(b) of the Evidence Act and dismissed the physician's claim against the Defendants to the extent that it relied upon the Correspondence.

On appeal, the B.C. Court of Appeal upheld Justice Weatherhill's judgment. The Court rejected the physician's argument that section 51(2)(b) of the Evidence Act should be interpreted to exclude correspondence which is never produced or submitted to a hospital committee. The Court found that the adoption of such an interpretation would "result in an anomaly whereby the formal committee proceedings would be exempt from production, but the preliminary and investigatory communications that form the foundation of such a committee proceeding would not be exempt." In the Court's view, that interpretation was premised on a literal rather than contextual reading of the words of the Evidence Act and would result in a construction of section 51(2) of the Evidence Act that was not consistent with the object of the Evidence Act or the stated purpose of section 51(2) of the Evidence Act, namely, to protect the sanctity of the peer review process in hospitals. In the result, the Court of Appeal agreed with Justice Weatherhill's conclusion that the Correspondence was made for the purposes of an investigation into the professional conduct of a health care professional and was protected from production by section 51(2)(b) of the Evidence Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Penny Washington
Erika Lambert
Melissa L. Perry
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