Applicant

-and-

St. Joseph’s Health Centre

Respondents

Adjudicator: Kathleen Martin

Date: February 1, 2012

Citation: 2012 HRTO 239

Indexed as: J.M. v. St. Joseph’s Health Centre

APPEARANCES

J.M., Applicant ) self-represented

St. Josephs’s Health Centre, Respondent ) Michelle Warner, Counsel

Steven Rhee, Respondent ) Glynnis P. Burt and Andrew ) E. McCutcheon, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on June 2, 2009, alleging discrimination on the basis of disability in services. On January 27, 2012, I dismissed the Application against Dr. Rhee with reasons to follow. My reasons follow.

Background

2The background to this Application is set out in a number of earlier decisions of the Tribunal (see, for example, 2011 HRTO 1703, 2010 HRTO 2201 and 2010 HRTO 633) and will be briefly summarized again and supplemented with additional facts as are necessary to the issue before me.

3The Application arises out of the applicant’s interaction with various medical personnel working at or out of St. Joseph’s Health Centre, a hospital and its mobile crisis unit, in the period September 2006 to June 2008. Among other things, the applicant alleges that she was discriminated against on the basis of disability when nurses with the mobile crisis unit attended at her home along with the police and refused her request to decline a mental health assessment, threatened her with criminal arrest and harassed her. The applicant also alleges that she was discriminated against by a physician at the hospital, Dr. Rhee, when he reported her to the Ministry of Transportation (“MTO”) because she was suffering from a mental illness. Following the report, the MTO suspended the applicant’s driver’s license. The applicant states that “it appears that the doctor’s decision to report me… was a result of me being arrested under the act rather than a medical diagnosis inferred by observations of mental health instability”.

4Initially, the applicant only named the respondent Hospital as a respondent to the Application. By Interim Decision dated November 3, 2010, Dr. Rhee was added as a respondent: 2010 HRTO 2201.

5On December 6, 2010, Dr. Rhee filed a Response. In his Response, Dr. Rhee denied the allegations and requested that the Application be dismissed against him because there is no evidence of prima facie discrimination, and in the alternative, that the Application is statute-barred by virtue of s. 203(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).

6 Section 203 of the HTA provides as follows:

(1) Every legally qualified medical practitioner shall report to the Registrar the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle. R.S.O. 1990, c. H.8, s. 203 (1).

(2) No action shall be brought against a qualified medical practitioner for complying with this section. R.S.O. 1990, c. H.8, s. 203 (2).

(3) The report referred to in subsection (1) is privileged for the information of the Registrar only and shall not be open for public inspection, and the report is inadmissible in evidence for any purpose in any trial except to prove compliance with subsection (1). R.S.O. 1990, c. H.8, s. 203 (3).

7The applicant filed a Reply to Dr. Rhee’s Response. Among other things, the applicant disputed that the above provision is a bar to the Application against Dr. Rhee arguing that the Code has quasi –constitutional status and prevails over legislation that conflicts with it. The applicant relied on s. 47(2) of the Code in support of her submissions.

8Section 47(2) provides as follows:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act prevails and unless the Act or regulation specifically provides that it is to apply despite this Act.

9At my request the parties provided further submissions on the issue. As part of his submissions, Dr. Rhee re-framed his remedial request asking that the Application be dismissed based on s. 203(2) of the Highway Traffic Act, or in the alternative, that a summary hearing be held in order to determine whether the Application should be dismissed against him. In her submissions, among other things, the applicant urged me to not decide the issue in the absence of a factual record.

10By Interim Decision dated September 15, 2011, I directed that a summary hearing be held on whether the allegations against Dr. Rhee should be dismissed on the basis that there is no reasonable prospect that those allegations in the Application will succeed. I also stated that the parties should be prepared to make further submissions on the issue of jurisdiction raised by Dr. Rhee’s Response.

11A hearing was held on September 29 and 30, 2011. At the outset of the hearing, the applicant raised a concern regarding my decision to direct that the parties file any further documents or cases in respect of the summary hearing within ten days of the date of the Interim Decision. The applicant stated that she had been prejudiced by having insufficient time to prepare although she also indicated that no adjournment was being sought. After the hearing went into a second day, the applicant confirmed that she ceased to have a concern given that she had additional time after the hearing on September 29th to conduct any further research.

12At the hearing I heard evidence from Dr. Rhee (at his suggestion) and from the applicant on the interactions between them. In addition, I heard oral submissions from the applicant and Dr. Rhee. The respondent Hospital attended the hearing but did not seek to cross-examine or make oral submissions.

The Evidence

13The allegations pertaining to Dr. Rhee arise from the applicant’s attendance at the Emergency Department of the respondent Hospital on February 2, 2008. On that date, the applicant was apprehended under the Mental Health Act, R.S.O., c.M.7 and brought into emergency by the police. The records reflect that the police reported that the applicant had been threatening suicide. The applicant was seen by a doctor in emergency (not Dr. Rhee) who placed the applicant on a Form 1 under the Mental Health Act.

14A Form 1 authorizes the apprehension of a person for a specified time for the purpose of making an application for a psychiatric assessment. In this case, the Form 1 reflected that the physician had reasonable cause to believe that the applicant had threatened or was threatening to cause bodily harm to herself and that the physician was of the opinion that the applicant was apparently suffering from mental disorder of a nature or quality that likely would result in serous bodily harm to herself. The Form 1 referenced that the physician based these beliefs on his own observations that the applicant was “suicidal” and “depressed” and other facts which were referenced as “brought in by police threatening suicide”.

15Dr. Rhee stated that when he came on to work in the Emergency Department several hours later, the applicant was in the crisis area. Dr. Rhee came to reassess her for the purpose of determining whether she should be discharged (which would involve discontinuing the Form 1), referred to another consultant or for further investigation or treatment.

16Dr. Rhee stated that he “routinely reviews any available records” and did so in this case including:

a. the Emergency Registration Out Patient Record (which included the original emergency physician’s notes indicating, among other things, that she was brought in by police, was uncooperative with police, crying and threatening suicide);

b. the Emotional Disturbed Person (EDP) Information Form, a form filled out by police and including their observations; and

c. the applicant’s records available on the Hospital computer, which included notes from a mental health interdisciplinary assessment of the applicant conducted August 10, 2006 referencing details of her history and assessments and related diagnoses by other physicians, the history of her present illness including that the applicant was previously seen and assessed as “likely paranoid PD ? delusional disorder” and reflecting that the police reported then 20 prior Mental Health Act apprehensions related to threats of suicide.

17Dr. Rhee stated that after reviewing the foregoing, he went to assess the applicant at about 7:50 a.m. Dr. Rhee testified that he usually starts with history and believes he did so in this case since his notes reflect that the applicant “wanted crisis team”. He stated she appeared more anxious and not suicidal and that he conducted a physical examination of the applicant to rule out any physical cause for her symptoms. In his notes, Dr. Rhee referenced what medication the applicant was on, a history of passive suicide ideation, the 2006 visit to the “ER” (noting the diagnosis of delusional and behavioral issues and “? paranoid”) and his current opinion that she was not suicidal and had no homicidal intention. Dr. Rhee’s notes also provide details of the physical examination he conducted and indicates the applicant is alert and has no recent medication change. Dr. Rhee was not certain the precise amount of time spent with the applicant although he stated it was likely more than a few minutes given what is reflected in the chart.

18As a result of his assessment including his review of the records, Dr. Rhee stated that he concluded that there was no physical illness causing the applicant’s symptoms, that she “was” suicidal, had calmed down and was no longer a danger to herself. In light of the foregoing, he discharged her home since she no longer met the conditions necessary for a continuation of the Form 1 (i.e. in this case no longer suicidal In addition, at that time, as she was no longer suicidal, Dr. Rhee stated that he did not think that a further consultation was necessary.

19Dr. Rhee stated that he also formed the opinion that the applicant’s emotional or psychiatric illness “could be” unstable and therefore she could be at risk to drive – which he stated is a different test from the applicable test for discontinuing the Form 1. As for the identification of the illness, Dr. Rhee stated that he reached a provisional diagnosis of depression, anxiety and acute crisis. Given his opinion, Dr. Rhee testified that he was obligated to make a report to the MTO under s. 203 of the HTA. Dr. Rhee stated that he based his opinion on all the information available to him including the report of the doctor who assessed the applicant earlier and the content of the previous 2006 assessment including the reference to the earlier medical diagnoses and 20 Mental Health Act arrests related to threats of suicide, all of which he assumed to be true. Dr. Rhee stated that the arrests were a factor insofar as this history went to his medical opinion on whether the applicant’s condition was stable or not and therefore whether the applicant was at risk in operating a motor vehicle on the road.

20Based on this opinion, Dr. Rhee completed a Medical Condition Report checking off “Mental or Emotional Illness – Unstable” after his assessment of the applicant and gave it to his assistant to send to the Ministry of Transportation. The Report is dated February 2, 2008. While the Report also reflects a stamp indicating it was scanned on February 11, 2008, Dr. Rhee could not explain this notation. As indicated, he testified that he provided the Report to his assistant for delivery to the MTO after his assessment of the applicant.

21Dr. Rhee stated that he did not tell the applicant about his report. He testified that there are guidelines for physicians to follow and if it is not safe for the physician or patient to disclose the information, then disclosure is not required. In the applicant’s case, Dr. Rhee explained that he presumes, based on his chart notes, that he did not advise the applicant of his report because of the recent stress and crisis she had been through and a concern that disclosure could cause her more distress. Dr. Rhee states that disclosure could trigger a worsening of symptoms.

22Dr. Rhee denied that there was any policy in place in the hospital about patients who were detained under the Mental Health Act regarding reports to the MTO. He also stated it is “not common” to put someone on a Form 1 without an assessment.

23The applicant disputes Dr. Rhee’s account of their interactions. The applicant stated she saw Dr. Rhee approximately six hours after being brought to emergency and that she spoke before he did. The applicant stated that she told Dr. Rhee she had been mistakenly arrested under the Mental Health Act and that caused her a lot of frustration and anxiety because she was always being arrested. The applicant stated that she told Dr. Rhee it was just because she was on the crisis line at the time when the police came but then stopped explaining because Dr. Rhee did not seem to be interested. Dr. Rhee said that he knew and then he told her she could go home. The applicant stated that Dr. Rhee never asked any questions or assessed her. The applicant states that the entire interaction with Dr. Rhee was less than two minutes.

The Parties’ Submissions

24The applicant and Dr. Rhee provided oral submissions on both the issue of whether there is no reasonable prospect that the Application will succeed against Dr. Rhee and the issue of jurisdiction and s.203 of the HTA. Given my findings below in respect of whether there is no reasonable prospect that the Application as against Dr. Rhee will succeed, there is no need to outline the parties’ submissions on the jurisdictional issue.

25The applicant argued that she was discriminated against by Dr. Rhee on the basis of disability because she was reported to the MTO based on impressionistic assumptions - namely, having a mental disability and having been arrested under the Mental Health Act - as opposed to an assessment and related observations of her mental health or mental instability. The applicant urged me to accept her account of the interactions with Dr. Rhee. She stated that Dr. Rhee improperly relied on other sources of information in his “assessment” and suggested that the information such as the police report and the historical information contained inaccuracies (for example she had been arrested 11 times and not 20). Further, the applicant argued that Dr. Rhee’s notes do not reflect that she was suicidal or unstable and neither does his subsequent conduct since he discontinued the Form 1 and did not refer her for further treatment.

26The applicant argued that Dr. Rhee’s actions were predicated on him complying with a policy at the respondent Hospital that anyone arrested under the Mental Health Act is reported to the MTO. In support of this contention, the applicant relies on a document produced by the respondent Hospital which details the investigation of her related internal complaint about the incident at the Hospital. This document reports that on October 10, 2008, in response to the applicant’s complaint about her license revocation, another physician (described by the applicant as the “chief of ER”) responded to the investigator by stating that he stands by the physician practice of reporting and that “…if the pt [patient] has threatened suicide that many times then he feels they would need to report her.” In addition, the doctor is reported as stating it is “appropriate to put a pt [patient] on a form based on the information by the police…and they can form a pt prior to assessment.” – which I understand the applicant suggests is a reference to the Form 1 and which demonstrates that the Hospital has a policy of dealing with arrests under the Mental Health Act.

27Further, the applicant argued that Dr. Rhee also discriminated against her on the basis of her mental illness given his evidence to the effect that if someone had a seizure (i.e. a different disability) he would inform them although he did not tell her that she was going to be reported. The applicant submitted that it is demeaning to her to not be advised of the report to the MTO, particularly when there is nothing to suggest that she would react badly.

28Dr. Rhee argued that there is no reasonable prospect that the applicant’s allegations against him will succeed as there is no evidence that the applicant was treated differently from any other person. Dr. Rhee argued that he completed an assessment, which included a review of the historical record and his own examination of the patient, and then formed the medical opinion to discontinue the Form 1 (because she was no longer suicidal) and the separate medical opinion that her condition was unstable which may make it unsafe to drive resulting in the report to the MTO.

29Dr. Rhee argued that the applicant’s submissions are based on her “beliefs,” which are not supported by the evidence. Dr. Rhee stated that it was not discriminatory to rely on the arrests under the Mental Health Act because it was not the fact of the arrests that was important – only the information it provided to inform his assessment of her. Dr. Rhee disputed that there is any policy in place about reporting. Finally, Dr. Rhee argued that there is no evidence suggesting the applicant was treated differently in the manner of and reasons for reporting to the MTO. Dr. Rhee stated that the conclusion of instability was supported by the documentation whether or not such documentation was true.

Analysis and Findings

30The issue before me is whether or not the allegations against Dr. Rhee should be dismissed at this stage. I do not find it necessary to decide whether the allegations are barred by s. 203 of the HTA since even if there is no bar, I find that there is no reasonable prospect that the applicant can establish a violation of the Code in respect of her allegations against Dr. Rhee.

31In Dabic v. Windsor Police Service 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing.

In some cases the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

32In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal applied the applicable test from Dabic, supra, in an application where some, but not all of the evidence in a case, had been heard.

33In the circumstances of this case I heard a large part of the evidence relevant to the allegations against Dr. Rhee, and in fact, much of the applicant’s submissions were directed at arguing that she had proven discrimination. However, given that I did not hear all of the applicant’s case, I have still approached the question as whether there is no reasonable prospect that the applicant can show a link between the applicant’s disability and one or both of Dr. Rhee’s filing of the report with the MTO and Dr. Rhee’s failure to advise the applicant that he had reported her to the MTO. In determining this question, I have based my decision on the evidence already presented, the additional evidence the applicant stated she would call if the Application against Dr. Rhee were to proceed to a hearing on the merits (primarily her evidence regarding the “policy”), and the submissions of the parties filed before and made during the oral hearing.

34In making my determinations, credibility has been an issue insofar as the applicant disputes Dr. Rhee’s evidence on what transpired in their interactions. In assessing the credibility of the evidence, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 namely, “…its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…”.

35In assessing the evidence, to the extent there were differences between the applicant and Dr. Rhee, I prefer the evidence of Dr. Rhee. I found Dr. Rhee credible. Dr. Rhee gave a logical account of his interactions with the applicant, which was supported, for the most part, by the timing and content of documentation both of his own note-keeping and that of other records accessed in the course of his assessment on computerized system at the hospital. There were a few instances where Dr. Rhee’s oral evidence was somewhat different from his notes, but I did not find the additional detail provided to be inconsistent with the documentary material. For example, the provisional diagnosis set out in paragraph 19 above was not expressly reflected in the chart. However, I do not find the diagnosis to be inconsistent with Dr. Rhee’s notations on the chart (reflecting that the applicant wanted the crisis line/team and was more anxious) and find it is consistent with other records available to Dr. Rhee at the time such as the Form 1 (reflecting that the doctor who assessed her earlier observed the applicant to be depressed).

36In comparison, I do not find the applicant’s version of events to be in harmony with what I would find to be reasonable in the circumstances in question. I do not find it reasonable that an emergency room physician would authorize the discharge of a patient and the discontinuance of a Form 1 because the applicant told him there had been a mistake, particularly without any assessment of her mental and physical health. Further, the applicant’s version of events often conflicted with contemporaneous hospital records. I do not find the applicant’s suggestion that the physician “cobbled together a few observations he got out of the patient’s file in order to defend his decision” to be convincing. Further, while the applicant argued that her evidence was also consistent with the notes of her complaint to the hospital, the records relied on of the applicant’s complaint are dated eight months after the emergency visit and while the complaint alleges that Dr. Rhee did not do a “proper assessment” it does not corroborate the detail of the exchange given in the applicant’s evidence. As such, I do not view the complaint to the hospital to be as reliable as the contemporaneous notes of Dr. Rhee.

37The applicant argued that Dr. Rhee’s actions were discriminatory because he reported her based on an impressionistic assumption, which was in turn based on her having a mental disability (as opposed to a medical opinion that she was unstable), and because of her history of arrests under the Mental Health Act. I find that there is no reasonable prospect that the applicant will succeed with either claim.

38I accept that Dr. Rhee reviewed the material on file about the applicant (including an assessment from 2006), accepted that she had certain mental health conditions and had been suicidal on multiple occasions in the past and then conducted his own assessment of her in which he ruled out physical causes and found the applicant to be anxious, alert and no longer suicidal. I also accept that based on this assessment, Dr. Rhee formed the opinion that her condition may be unstable and thus concluded that he was obligated to make a report to the Ministry pursuant to s.203 of the HTA. It is not my role to judge whether it was reasonable for Dr. Rhee to accept the accuracy of the hospital’s records in respect of the applicant and/or whether his assessment was in conformity with usual medical practice, including whether it was reasonable to conclude the applicant’s condition may be unstable for the purpose of reporting under s.203 of the HTA.

39In accepting that Dr. Rhee formed the opinion that the applicant’s condition may be unstable for the purpose of reporting under s.203 of the HTA, I have considered the applicant’s contention that the opinion to report her appears inconsistent with Dr. Rhee’s decision to discontinue the Form 1 and other conduct such as not referring her on for other treatment or advising her that she should not drive (which she submits would indicate that he did not believe her to be unstable). However, I accept Dr. Rhee’s explanation that the tests for discontinuing a Form 1 and triggering an obligation to report under s.203 of the HTA are different. In a similar vein, Dr. Rhee suggested that he did not refer the applicant for further treatment for the same reason – that she was not suicidal at the time he assessed her. As for not advising the applicant regarding driving, which would involve disclosing his intended report, Dr. Rhee explained why disclosure in this case was a concern. Considering these explanations I do not find on the evidence that these actions/inactions are inconsistent with Dr. Rhee’s opinion that the applicant’s condition may be unstable, thus, in his view, triggering the obligation to report.

40If the Application against Dr. Rhee were to proceed to a merits hearing, the issue would be whether or not Dr. Rhee’s actions were discriminatory. The applicant has no reasonable prospect of establishing that Dr. Rhee’s approach in determining whether to report the applicant to the MTO was influenced by an impressionistic view of her disability as opposed to the assessment described. There was no evidence presented or referenced that indicates that Dr. Rhee’s manner of conducting the assessment in this case with reliance of earlier assessments and patient history was atypical (in fact Dr. Rhee’s evidence suggested otherwise). Further, the applicant has presented no evidence that she has or which is reasonably available to her to suggest or which one could reasonably infer that Dr. Rhee’s assessment of whether the applicant should be reported to the MTO was conducted in an atypical manner based on her disability.

41It is clear that Dr. Rhee, in reporting the applicant to the MTO, specifically relied on the past history of Mental Health Act arrests, which the applicant states is discriminatory. However, I accept the evidence of Dr. Rhee that he relied on the arrests not for the fact of arrests but as one piece of information in the record which reflected that there was a history of “suicide dality” (i.e. the applicant claiming she was suicidal). This history of “suicide dality” informed his diagnosis that the applicant’s mental or emotional illness was unstable. Again whether this information was accurate or not, in either the number of arrests or the underlying circumstances, I do not find relevant to my determination of whether the Code was breached. I am satisfied that Dr. Rhee believed it to be true and acted upon it as one piece of information contributing to his medical opinion that the applicant’s condition met the test as set out in s. 203 of the HTA. Based on the submissions and evidence before me, there is no reasonable prospect that the applicant can establish that Dr. Rhee’s reliance on this information was differential treatment on the basis of the applicant’s disability.

42The applicant also argues that Dr. Rhee discriminated against her by applying a hospital policy that anyone arrested under the Mental Health Act should be reported to the MTO. To support her contention, the applicant relies on the physician’s comment reflected in paragraph 26 above (to the effect that he stands by the physician practice of reporting if the patient has threatened suicide that many times). I find that there is no reasonable prospect that the applicant can make out this claim of discrimination. Even assuming this statement is true, I do not view this physician’s comment as suggesting that there is a “policy”. Further and in any event, Dr. Rhee testified that he was unaware of such a policy and in providing his evidence on what transpired, clearly described an assessment process that was specific to the applicant’s circumstances. I accept Dr. Rhee’s evidence on this point.

43I note that the applicant also included reference to the physician’s other comment about the appropriateness of putting a patient on a Form 1 without an assessment in her submissions. I do not find that this is relevant to the issues in this case as Dr. Rhee did not place the applicant on a Form 1; in fact, he discontinued the Form 1 after his assessment of her. However, and in any event, Dr. Rhee disputed that there was a common practice in this regard.

44Finally, in her oral submissions, the applicant also suggested that Dr. Rhee’s decision to not tell her that he was reporting her was discriminatory. I find that there is no reasonable prospect that the applicant will be able to establish this allegation. Based on Dr. Rhee’s evidence, it is clear that a physician determines whether it is appropriate to disclose the intention to report based on whether it is safe to do so (both for the patient and the physician), thus not all patients are treated the same. In this case, Dr. Rhee has provided an explanation as to why he believes the applicant was not told of his intended report which related to her health situation, and there is no basis to find or reasonably infer that this explanation to be discriminatory.

Order

45The Application is dismissed against Dr. Rhee, on the basis that it has no reasonable prospect of success. The style of cause has been amended accordingly.

46The hearing into the Application will continue on February 3, 7 and 8, 2012 against the remaining respondent.

47With respect to the forthcoming hearing dates, on January 24, 2012, the respondent Hospital provided a suggested schedule of witnesses and on January 30, 2012, the applicant provided a response to the proposed schedule. I will address the issues raised in those submissions at the hearing. However, in the absence of any further directions, the respondent should have available a witness on February 3, 2012 in the event that the applicant’s evidence is completed earlier that day.

Dated at Toronto this 1st day of February, 2012.

“signed by”

Kathleen Martin

Vice-chair

J.M. v. St. Joseph’s Health Centre, 2012 HRTO 239

Case Summary