Hearings Directors Interest Group April 25, 2018 BETH GEORGE - - PowerPoint PPT Presentation

Hearings Directors Interest Group April 25, 2018

BETH GEORGE

INVESTIGATOR

Overview

• Introduction
• Administrative Fairness Guidelines
• Common Issues
• Recommendations
• Resources

Introduction

• The administrative fairness guidelines help explain how our
• ffice investigates complaints of unfair treatment.
• Administrative decisions that affect the rights, privileges or

interests of an individual trigger a “duty of fairness.”

• Natural justice is to administrative fairness what due process

is to criminal law.

Administrative Fairness Guidelines

• 1. Chain of legislative

authority

• 2. Duty of fairness
• 3. Participation rights
• 4. Adequate reasons
• 5. Apprehension of bias
• 6. Legitimate expectations
• 7. Exercising discretionary

power

• 8. Was the decision

reasonable?

1.Chain of Legislative Authority

• Trace the chain of legislative authority.
• What legislation and regulation creates the authority or power

to make a decision?

• How is this translated to applicable policies, guidelines, code
• f ethics, standards of practice?
• Did the College follow the legislated rules?

• 2. Duty of Fairness
• We look for a meaningful review process
• Did the individual have an opportunity to present arguments

and be heard?

• The more final, binding, and impactful a decision is, the

greater the procedural protections must be.

• Key details to administer complaints are outlined in the

Health Professions Act

• 3. Participation Rights
• Parties should have a full and fair opportunity to present their

case to a decision-maker.

• Fully informed of the case against them and having a fair
• pportunity to present a defense or rebuttal.
• Under the HPA participation rights extends to both the

complainant and the investigated member (e.g. submissions can be written or oral or both [section 68(4)]

• 4. Adequate Reasons
• Is there a rational connection between the evidence presented and the conclusions

reached by the decision-maker?

• Has a clear explanation been provided as to how legislation, regulation or standards of

practice was applied to the individual’s circumstances?

• Are the reasons written so a reasonably informed person can understand them?
• If evidence was rejected were reasons provided as to why? How was evidence

weighed?

• Were all major arguments addressed?

• 5. Apprehension of Bias
• Is there a relationship between the decision-maker and the

parties in a case?

• Is the decision-maker impartial and independent?
• Does any other potential conflict of interest exist?
• Decision-makers should guard against forming opinions

about the case before reviewing the documentation and hearing from all parties.

• 6. Legitimate Expectations
• Did the decision-maker make a commitment that a certain

procedure would be followed?

• Did the authority follow its regular process or deviate from it?
• May be as simple as an official failing to follow through after

agreeing to take action

• 7. Exercising Discretionary Power
• Is there evidence of bad faith, improper purpose, or irrelevant

considerations?

• Does the authority exercise discretion granted to them?
• Discretion must be exercised within a reasonable

interpretation of the legislation.

• Discretionary decision-making can be established in policies,

legislation, and guidelines.

• 8. Was the Decision Reasonable?
• Is the decision based on supporting evidence?
• Is there a rational connection between the evidence presented

and the decision rendered?

• Does the decision demonstrate how the decision-maker

considered and assessed the arguments and evidence?

• Not about whether the decision was right or wrong or

whether a different conclusion could have been reached.

Common Issues

• Incomplete or unclear documentation and policies
• It’s unclear how evidence was weighed in a decision
• Complaint processes inconsistently applied
• Failure to cite / citing the wrong legislation or policies used to

make a decision

Common Issues

• Complainant’s major arguments are not addressed
• Complaints director dismissing complaint contrary to

evidence uncovered during the investigation.

• Complainant not given an opportunity to respond to the

investigated member’s arguments

Recommendations

• Develop, amend, or implement new policy and/or procedures
• Send matter back to the complaints director to conduct a new

investigation and issue a new decision

• The CRC should re-hear the matter; put the matter forward to

the CRC for review

• Ensure complainants are told of their right to other levels of

review

Recommendations

• College properly dispose of matter as per correct section of HPA
• The decision-maker issue an addendum:
• Cite the legislation considered when making decisions
• Provide adequate reasons for the decision
• Explain how the evidence was weighed
• Outline options for further review
• Explain why the complainant wasn’t able to attend a review in person

Resources

www.ombudsman.ab.ca

• Annual Reports
• Administrative Fairness Guidelines
• Internal Complaint Mechanism
• Case Summaries
• Decision-writing presentation

Questions and Discussion