CITATION: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742
DIVISIONAL COURT FILE NO.: 696/18 DATE: 20230130
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
HUI GAO
Hui Gao, self-represented
Applicant
– and –
HEALTH PROFESSIONS APPEAL
David P. Jacobs, for HPARB
AND REVIEW BOARD and ELEONORA
AUDANO
Christopher Bryden, for Ms Audano
Respondents
HEARD: September 19, 2022
REASONS FOR DECISION
D.L. Corbett J.
[1] Ms Gao seeks judicial review of the decision of the Health Professions Appeal and Review Board (“HPARB”) dismissing her requested review of the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Nurses to take no action in respect to Ms Gao’s complaint against the respondent nurse, Ms Audano.
[2] The circumstances giving rise to this application are, indeed, sad. Ms Gao’s elderly mother, Ms Luo, was in a care facility at which the respondent nurse worked. Ms Luo was suffering from ailments of old age, including dementia and vascular degeneration.
[3] The respondent nurse applied an ice pack in Ms Luo’s groin area, to ease swelling. Ms Gao disagreed with this treatment and also complained that the ice pack was not administered properly and was left in place far too long.
[4] Ms Luo’s condition worsened, and she was taken to Credit Valley Hospital with an ischemic foot and lower leg. The prognosis was very poor. Ms Gao was advised by attending doctors that the only treatment was amputation, but that this treatment might not succeed, could cause death, and would likely prolong her mother’s distress. Ms Gao decided against amputation, a decision which the attending doctors supported.
[5] Ms Luo returned to the care facility from hospital and died a few days later.
The Complaint
[6] Ms Gao’s complaint has two components. First, she complains that the ice pack was administered improperly – it was applied too tightly and for far too long. Second, she complains that maladministration of the ice pack caused her mother’s death.
[7] The HPARB concluded that the ICRC’s conclusion was reasonable that there was non-compliance with appropriate practices for administering an ice pack, and in particular, that the ice pack was left in place too long. The HPARB also concluded that the ICRC reasonably concluded that maladministration of the ice pack did not cause or contribute to Ms Luo’s death. The HPARB found that, in all the circumstances, the ICRC’s decision to take no disciplinary action against the respondent nurse was reasonable.
This Application
[8] Ms Gao believes that the maladministration of the ice pack caused or contributed to her mother’s death. That is the fundamental basis of her application for judicial review. In support of this argument, Ms Gao placed before this court a substantial record that was not before the ICRC or the HPARB and has also, in oral argument, invited this court to consult independent experts respecting the relationship between the ice pack and her mother’s death. She believes her allegations warrant further investigation.
[9] This court makes three observations at the outset:
a. Judicial review is a “review” of the decision below, not a “fresh hearing” into the complaint. The materials provided to this court by Ms Gao, that were not provided to the ICRC or the HPARB, are not admissible on this application.
b. In any event, the additional materials provided by Ms Gao would not establish her contention that maladministration of the ice packs caused or contributed to her mother’s death or that this allegation required further investigation. The arguments made by Ms Gao – that the ice pack caused frostbite leading to necrotization of her mother’s foot and leg – and that the ice pack cut off circulation to her mother’s foot and leg, causing necrotization – are unsupported by clinical records or expert opinion evidence. Indeed, they run counter to the clinical evidence.
c. The attending doctors attributed Ms Luo’s condition to vascular degeneration attributable to old age, and this opinion is unchallenged by any evidence before the ICRC or the HPARB or tendered subsequently to this court by Ms Gao.
[10] The HPARB dealt with the “causation issue” briefly in its reasons. It may have done so out of respect for Ms Gao’s feelings, recognizing that her grief is genuine and should be respected. This empathetic approach may have been fodder for continuing conflict in this court. My reasons on this issue are firmer, with a view to making it clear to Ms Gao that there appears to be no basis for her allegations. On the record, it is clear why Ms Gao’s mother died: complications from vascular degeneration arising from old age.
Jurisdiction and Standard of Review
[11] There is no appeal from the ICRC’s decision to take no action in respect to Ms Gao’s complaint. A review of the ICRC decision is available to the HPARB: Regulated Health Professions Act, 1991, SO 1991, c.18, Sched. 2, (the Health Professions Procedural Code (the “Code”), s.29(2).
[12] There is no appeal from the HPARB’s review decision. Thus, the jurisdiction of this court is confined to judicial review: Judicial Review Procedure Act, RSO 1990, c.J.1, ss. 2(1) and 6(1). The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 23.
[13] This application would ordinarily be heard by a panel of three judges of the Divisional Court: Courts of Justice Act, RSO 1990, c.C.43, s. 21(1). Pursuant to a direction from Associate Chief Justice McWatt pursuant to s. 21(2)(c) of the Courts of Justice Act, I was directed to hear this application as a single judge, to accommodate Ms Gao’s request for an in-person hearing at a time when panel hearings in Divisional Court were taking place by videoconference as a result of COVID-19 measures. The hearing took place in person, before me, at Osgoode Hall, Toronto, in accordance with the Associate Chief Justice’s direction.
The Process Before the ICRC and the HPARB
[14] A complaint review under s. 29(2) of the Code is a “review” and not an “appeal”. No “hearing” is required at the HPARB: Code, s. 1(2). A complaint review is not a recorded proceeding. Rather, the HPARB receives comments from the parties concerning the adequacy of the ICRC’s investigation and the reasonableness of the ICRC’s decision: Code, ss. 33(1) and 33(2). A review is not a fresh or further investigation. It is not a hearing. No witnesses are called and there are no examinations or cross-examinations: Re Yuz and Laski et al. (1986), 1986 2641 (ON CA), 57 OR (2d) 106 (CA), leave to app. to SCC refused [1987] SCCA No. 126.
[15] The review in this court is from the HPARB decision and is based upon the materials that were before the HPARB. This included, in this case, the materials that were before the ICRC.
[16] Generally, the evidence before the court on judicial review is restricted to the record that was before the decision-maker below. “Fresh” evidence, that was not before the decision-maker, is generally not admissible: Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22, para. 19. See also: Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 OR (2d) 513 (CA); Hanna v. Attorney General for Ontario, 2010 ONSC 4058, para. 13 (Div. Ct.); Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation, 2011 ONSC 4086, paras. 13, 20 (Div. Ct.).
[17] The respondents did not move to strike the fresh evidence adduced by Ms Gao prior to the hearing but took the position at the hearing that this material is inadmissible. Ms Gao did not bring a motion to adduce this fresh evidence. Ms Gao is self-represented, and allowances must be made. I proceeded on the basis that Ms Gao was asking this court to receive her fresh evidence and assessed its admissibility under the Keeprite principles (cited above).
[18] I would not admit the fresh evidence: most of it is inadmissible on first principles of evidence law (a collection of articles and other research Ms Gao has done herself, unsupported by expert opinion evidence). Further, even if the evidence was admissible on first principles of evidence law (which it is not), it is not material to an issue before this court:
a. Some of the evidence, if accepted, could establish that maladministration of an ice pack could cause frostbite to the area to which the ice pack was administered. This, in turn, could cause death of tissue in that area. It is uncontested that the ice pack was applied in Ms XXX’s groin area. Necrotization occurred, not in the groin area, but in the lower leg and foot. Ms Gao’s fresh evidence would not support a conclusion that an ice pack applied to the groin area could cause necrotization of another part of the body.
b. Some of the evidence, if accepted, could establish that maladministration of an ice pack that was applied too tightly could cut off circulation. There is no clinical evidence and no expert opinion that Ms Luo’s circulation was cut off from the groin. There is no clinical or expert evidence that an ice pack applied to tightly in the area of the groin, where this ice pack was applied, could have led to circulation being cut off in the lower leg. This fresh evidence does not cast doubt on the HPARB’s conclusion that the record before the ICRC established that death was not caused or contributed to by the ice packs.
[19] At this point it is useful to review the clinical records that were before the ICRC and the HPARB. On admission, Ms Luo was diagnosed with an “ischemic foot and lower leg.” Both doctors who saw Ms Luo diagnosed her condition as poor. Dr Boll’s clinical notes state:
Ms Luo’s overall condition is grave, and, once again, there is no surgical option for her ischemic foot given her advanced dementia and multiple comorbidities. We expect that her ischemic limb will worsen. A palliative approach should be taken with an emphasis on keeping the patient comfortable. We have kept this patient on multiple medications at the request of her daughter, although she does have some insight into the patient’s grave status.
The other attending physician, Dr O’Connor, wrote as follows in his clinical notes:
Basically we have an end-stage peripheral arterial vascular event here with arterial occlusion at the distal right lower limb which is not reversible.
In Dr O’Conner’s view, “options are very few.” In the “best circumstances” the patient could be treated by amputation of the leg above the knee. Dr O’Conner noted that the Applicant was “not at all keen” on amputation, a view Dr O’Connor considered “quite appropriate” in this case. Dr O’Connor continued that, in light of the decision not to amputate: “[a]s such then, the recommendation for this patient would be to make her comfortable.” Dr O’Connor noted that the Applicant was keen to continue current treating medication, which Dr O’Connor thought was “probably… not going to alter the course of the right foot complications” and could lead to further complications, but they concluded that the medication could be continued because the Applicant “was keen to do this.” Doctor O’Connor concluded: “this patient has a very poor prognostic outlook.”
[20] The HPARB considered Ms Gao’s allegation that the ice packs caused or contributed to her mother’s death and found as follows, at para. 48 of its Reasons:
Although the Applicant asserts [that the ice packs]… caused or contributed to the deterioration… there does not appear to be any information in the Record to support this assertion.
This finding is reasonable. Dr O’Connor noted “arterial occlusion at the distal right lower limb” which is medical terminology for blockage of an artery in the lower leg. He considered this an “end-stage… vascular event”, meaning that Ms Luo had ongoing vascular deterioration of which the lower leg arterial blockage was a consequence.
[21] The doctors told the Applicant what was happening. Her mother – 89 years old – with advanced dementia and progressive vascular degeneration – had suffered blockage of an artery in her lower leg. The foot and lower leg were necrotizing – the tissue was dying. The only way to preserve life was to amputate the limb, but, given Ms Luo’s overall condition, this treatment was not indicated. Instead, the doctors recommended that Ms Luo be taken home to die, keeping her as comfortable as possible. The Applicant had “some insight” into this information, and during oral argument she agreed that the doctors had told her that her mother was dying and that the best thing to do was to try to keep her comfortable.
The Allegation of Negligence
[22] In her written argument, Ms Gao argues that the respondent nurse was negligent in respect to the ice packs. They were packed too tightly, they were left on too long, and perhaps they should not have been applied at all.
[23] The ICRC concluded that the ice packs were left on too long, though not so long as Ms Gao alleged. This was a finding of fact, available to the ICRC on the record before it, and the HPARB reasonably concluded that the ICRC’s finding was reasonable. Neither the ICRC nor the HPARB made a finding as to whether leaving the ice packs on too long constituted “negligence”.
[24] The complaint to the ICRC was not a claim for damages for negligence. Rather, it was a complaint that the respondent nurse’s treatment of Ms Luo fell below standards of professional conduct such that disciplinary action should be taken. “Negligence” does not equate to “professional misconduct”. The ICRC reasonably did not consider whether there was “negligence” and the HPARB reasonably found no fault in this approach.
[25] The respondent nurse’s employer was cited by regulatory authorities for failure to respect protocols for ice packs, following a complaint by Ms Gao. The ICRC considered that the failure to follow these protocols did not warrant disciplinary action against the respondent nurse. These findings are not inconsistent. The ICRC was entitled to, and did, consider the circumstances under which the nurse was working, including staffing levels, demands on her time by all residents in the facility and supervision and processes within the care facility. The ICRC’s approach to the issue was reasonable, and the HPARB’s conclusion to this effect was, itself, reasonable.
Request that the Court Investigate
[26] At the end of oral argument, Ms Gao asked the court to consult experts about the cause of her mother’s death, if the court was not satisfied that the additional materials filed by Ms Gao had established that the ice packs caused or contributed to Ms Luo’s death. As I have already explained, on the clinical records no further investigation is warranted, as reasonably found by the ICRC and upheld by the ICRC.
[27] Further, our system is “adversarial” not “inquisitorial”. Our courts decide disputes based on the evidence brought forward by the parties; our courts do not investigate claims made by the parties. It was for Ms Gao to seek out expert opinions to support her position, and to do so when she made her complaint to the ICRC. It was open to her to consult with the two attending physicians at the hospital, to ask them if they thought the ice packs contributed to Ms Luo’s condition. It was open to Ms Gao to consult with other doctors if she wished to do so.
Conclusion
[28] Ms Gao began her oral argument by showing me a picture from her mother’s 89th birthday party in the summer of 2014. Ms Luo looks happy, with no signs that she is ill. A few short weeks later, she was dead. Ms Gao invited me to conclude that something bad must have happened to cause her mother’s health to deteriorate so rapidly.
[29] With respect, Ms Luo did not die suddenly or unexpectedly, viewing the situation objectively. She was very old, she was suffering from vascular disease, and then she suffered blockage of an artery in her lower leg. That blockage caused tissue in her foot and leg to die, and the only way she could be saved was by amputating her leg. The doctors thought that Ms Luo was nearing the end of her long life, and that amputation would be no kindness. Ms Gao agreed that amputation should not take place, even though she understood that the consequence would be her mother’s death in the near future. Ms Luo’s demise is explained by the clinical records.
[30] The HPARB’s decision upholding the ICRC’s decision is reasonable. There is no basis for this court to intervene. The application is dismissed.
[31] The HPARB does not seek costs. The respondent nurse is entitled to partial indemnity costs of the application, fixed at $12,000, inclusive, payable by Ms Gao within thirty days. This award of costs is somewhat higher than the norm for an application of this kind, but this is a consequence of the voluminous additional record Ms Gao filed on the application, which counsel was obliged to review and address.
___________________________ D.L. Corbett J.
Released: January 30, 2023
CITATION: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742
DIVISIONAL COURT FILE NO.: 696/18 DATE: 20230130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
HUI GAO
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ELEONORA AUDANO
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Released: January 30, 2023