Oct 15, 2020

Professional regulators in British Columbia are subject to freedom of information legislation. As a result, individuals can apply to the Information and Privacy Commissioner to review a regulator’s refusal to provide such access. This regime led to a showdown in College of Physicians and Surgeons of British Columbia v British Columbia (Information and Privacy Commissioner), 2019 BCSC 354, <http://canlii.ca/t/hz4n1>.

A component of the quality assurance program for physicians in British Columbia involves multi-source feedback (MSF). Colleagues, coworkers and patients are asked to submit a confidential survey to a third party firm. The third party compiles the survey results in aggregate form and provides a report to both the practitioner and the regulator. This information is scored against results of the practitioners’ peers and, along with information gathered by other components of the quality assurance program (e.g., an analysis of patient charts, a review of office procedures), results in feedback to the practitioner and potentially remedial action.

In this case the practitioner sought access to copies of the actual survey forms. The regulator refused. Recourse was sought before the Information and Privacy Commissioner whose representative ordered that the surveys be provided to the practitioner. The regulator sought judicial review. The Court concluded that a purposeful interpretation of the legislation required that the public interest in the effective quality assurance program took priority. This necessitated that the confidentiality interests of the individuals answering the survey took precedence over the access interests of the practitioner. Otherwise the MSF component of the quality assurance program would be placed in jeopardy by a lack of candid (or any) participation.

The order of the Information and Privacy Commissioner was quashed.