Mr. S v. Dr. M and another (No. 2), 2025 BCHRT 168
Date Issued: July 16, 2025
File: CS-000865
Indexed as:
Mr. S v. Dr. M and another (No. 2), 2025 BCHRT 168
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Mr. S
COMPLAINANT
AND:
Dr. M and Clinic
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Kathleen Smith
On his own behalf: Mr. S
For the Clinic: Nobody appearing
Counsel for Dr. M: Deanna Froese
Date of Hearing: October 21, 22 and 24, 2024
Location of Hearing: Videoconference
I INTRODUCTION
[1] The complaint arises out of a medical appointment between the Patient, Mr. S, and the Doctor, Dr. M. For ease of reading, I refer to Mr. S as the Patient and Dr. M as the Doctor.
[2] The Patient is a person with mental disabilities. The Doctor is a physician trained in general practice. The appointment took place at the Clinic.
[3] The Patient alleges that the Doctor ended his appointment abruptly after learning that he was not working, receiving disability benefits, and seeing a psychiatrist. The Patient further alleges that the Doctor told him he had too many problems and had to go elsewhere and then called the police. The Patient says the Doctor’s actions amount to discrimination in services based on physical and mental disability contrary to s. 8 of the Human Rights Code.
[4] The Doctor denies discriminating. The Doctor says the Patient became increasingly agitated during the appointment, and that the Doctor ended the appointment and later called the police out of a concern for his personal safety. The Doctor says he advised the Patient to return to his family doctor because they knew his medical history, not because of any disability. The Doctor says he provided a service to the Patient to the extent he was able, given the presenting issue and the Patient’s behaviour.
[5] When the Patient made his complaint to the Tribunal, he named the Doctor and the Clinic. The Clinic filed a response to the complaint that asserted it was not an appropriate respondent because it was not involved in the interaction between the Patient and the Doctor. The Clinic did not apply to dismiss the complaint against it. During the later stages of the Tribunal’s process the Clinic stopped responding to communications from the Tribunal. I am satisfied that the Clinic had notice of the hearing and no unfairness resulted from proceeding without the Clinic.
[6] I heard this complaint over three days. In this decision, I rely exclusively on the oral and documentary evidence presented by the Patient and the Doctor at the hearing as well as their final arguments. The Doctor called an expert to testify on his behalf; however, I have not relied on that opinion to reach my decision. I accept that the expert was qualified to provide an opinion on matters relating to family medicine and assessing clinical skill and knowledge. Ultimately, however, I did not find the expert’s evidence helpful or relevant to the specific issues I need to decide in this case.
[7] There is no dispute that the Patient has a mental disability, therefore, the issues I need to decide in this case are: (1) whether the Patient has established a physical disability for the purposes of the Code; (2) whether he experienced an adverse impact regarding a service customarily available to the public; and, if so, (3) whether the Patient’s disability was a factor in the alleged adverse impact.
[8] For the reasons that follow, I accept that the Patient experienced an adverse impact. However, I find that the Patient has not proven on a balance of probabilities that his disability was a factor. On a balance of probabilities, I find that the Doctor was exercising his professional medical judgement when he recommended the Patient return to his family doctor and acted solely on a perception in the moment that his safety was at risk when he called the police. In reaching this conclusion, I want to emphasize that I am not finding that the Patient is dangerous or posed an actual threat. I am mindful of the harmful stereotypes that continue to affect individuals living with mental disabilities, including those that portray people with mental disabilities as inherently violent and dangerous. In this case, I am simply persuaded on all of the evidence that the Doctor believed it was in the Patient’s best interest to return to his family doctor and became sincerely concerned about his safety. I do not find that his perception of the situation was based on any arbitrary or stereotypical views of persons with disabilities, including persons living with mental illness.
[9] Before moving on, I want to acknowledge that this was a difficult process for the Patient. The Patient represented himself throughout the Tribunal process. During the course of the complaint, the Patient expressed that he found the process confusing and complicated at times. Notwithstanding the challenges of representing himself in a formal legal process, the Patient persevered. During the hearing, the Patient testified about trauma and harm flowing particularly from his encounter with the police. I acknowledge his courage in pursuing this complaint, which arose from a difficult and traumatic experience which still impacts him today.
II Preliminary Issue: Application to Limit Publication
[10] The Doctor applies under Rule 5(6) of the Tribunal’s Rules of Practice and Procedure to limit the publication of information in this final decision that would identify the parties. He also requests that the Tribunal continue the order issued in Mr. S v. Dr. M and another, 2023 BCHRT 239 [Decision No. 1.] to protect the identities of the parties in the event the public is granted access to the complaint file under Rule 5(8).
[11] I grant the Doctor’s application. Below, I provide my reasons. I begin with a procedural history of this issue to put my decision in context.
[12] In December 2023, the Tribunal denied the Doctor’s application to dismiss the complaint without a hearing but allowed his application to limit publication of the names of the parties: Decision No. 1. The anonymization order in Decision No. 1 was in force until the hearing.
[13] After learning that a member of the public would be observing the hearing, the Doctor applied for a publication ban during the hearing. The Tribunal granted the Doctor’s application. I reproduce the Tribunal’s order of October 21, 2024, below:
I order that:
a. The Tribunal will not publish or make available to the public any information that could identify the Complainant or the Respondents to the complaint. This order applies only up until the Tribunal issues a final decision.
b. No person may publish information disclosed in or in relation to this hearing which could identify the Complainant or the Respondents in connection with this complaint.
c. At the conclusion of the hearing, any party may apply for further orders to limit publication of information.
[14] The Doctor applies for a further order. He says that he seeks to protect his reputational interests, the treating relationships between the practitioners at the Clinic and their patients, and to protect the Patient’s sensitive medical and personal records. The application was included with his final argument.
[15] After the Doctor submitted his final argument and application to limit publication, the Patient had the opportunity to file a reply submission. He did not file one. This means, among other things, that he did not address the application to continue the order to limit publication of personal information. I am satisfied that no unfairness flows from deciding this application without hearing from the Patient. The Patient had notice and a chance to respond to the application. When the Patient did not file a reply by the deadline set by the Tribunal, the Tribunal’s Case Manager wrote to the parties to confirm that (1) the Doctor delivered a hard copy of the submission to the Patient by mail as per his request, and (2) the Tribunal did not receive a reply from the Patient by the due date. The Case Manager also attempted to reach the Patient by telephone to determine whether he intended to file a reply. The Case Manager called the Patient several times and was unable to leave a voicemail. Having heard nothing further from the Patient, I determined that it was appropriate to make this decision without a reply.
[16] The Doctor argues that there are privacy and professional reputation interests that outweigh the public’s interest in the parties’ identities. I summarize the main points in his argument as follows.
a. The allegations are serious.
b. A professional reputation is the product of much dedication, time, and effort, and can suffer greatly from a single complaint alleging a human rights violation – even if that complaint is dismissed.
c. The physician-patient relationship is built on mutual trust and respect. Publishing the names of the respondents may impair their ability and that of other professionals at the Clinic to effectively provide care to patients, given the potential adverse inference that could be drawn from the fact a human rights complaint has been brought against them.
d. The allegations and information disclosed during the hearing are sensitive.
e. The Patient likely has a personal interest in not disclosing his personal medical information.
[17] During the hearing, the Doctor testified that he is worried that this case could impact his reputation in the medical community, even if the complaint is dismissed against him. He explained that although he is currently retired from clinical practice, he continues to work in the medical field.
[18] As set out above, the Patient did not make submissions on this application. However, I observe that he previously opposed the Doctor’s name being anonymized. I also observe that in his final argument the Patient states that there is no dignity in having to share his personal, private, embarrassing, and humiliating health issues. I infer that he has some interest in keeping his own personal information private.
[19] All of the following circumstances together persuade me to grant the application:
a. The allegations are serious and are likely to engage the public’s interest.
b. The Tribunal has recognized that knowledge of a human rights complaint against a physician and/or a medical clinic could impact their professional reputations and the relationships with their patients: ND v. University of British Columbia and others, 2009 BCHRT 60 at paras. 67 and 69; Mr. C v. The Clinic and another, 2016 BCHRT 192 at paras. 35 and 36; and LD v. A Health Authority and others, 2015 BCHRT 13 at para. 83.
c. The Patient’s allegations and evidence at the hearing include sensitive personal and medical information, including about his history of serious mental health struggles.
[20] My order is set out at the end of this decision.
III EVIDENCE
[21] In this section, I summarize the evidence admitted at the hearing.
[22] The Clinic operates as both a family practice and a walk-in clinic.
[23] The medical appointment at issue took place on February 6, 2019.
[24] The Patient and the Doctor had not met before the appointment. They agree that the appointment started late. They also agree that the Doctor asked questions about the Patient’s medical and social history. They disagree about what happened later, including how the appointment ended and the reasons the police became involved.
A. The Patient’s Evidence
[25] The Patient describes himself as a person struggling to overcome many barriers. He says he experienced trauma and abuse as a child and has been diagnosed with attention deficit disorder, chronic depression and anxiety, and borderline personality disorder. He also has a medical condition called dextrocardia where he was born with his major organs in the wrong place.
[26] The Patient testified that he had not been working for the three or four months prior to the appointment and was receiving disability benefits.
[27] The Patient said that he needed medical help to address concerning issues he was having with his stomach, including abdominal pain and rectal bleeding. He testified that he did not know what the cause was and wondered if it had to do with his organ condition, his hernia scar not healing correctly, or the medication he was taking. He also referred to his last ultrasound that showed his stomach as “twisted.” The Patient gave evidence that his stomach issues had been going on for the past two years, but the bleeding was more recent.
[28] The Patient initially tried to book an appointment with another doctor, Dr. J, who also practices at the Clinic. The Patient had seen Dr. J before, on the recommendation of his sister. The Patient had found Dr. J helpful and hoped Dr. J could become his family physician. The Patient says that the earliest appointment available was with the Doctor, so he made an appointment with the Doctor instead.
[29] The Patient testified that in the past there was a doctor at another walk-in medical centre that he used as his family doctor for a few years. The Patient says he did not consider that physician or the other medical centre to be his family doctor.
[30] The Patient’s evidence was that the Doctor was running behind, and when he arrived, he was initially cheerful, but his demeanor changed. The Patient said he became “cold” and “uncaring” during the appointment. He says the Doctor asked irrelevant questions and focused on his vulnerabilities. The Patient testified that he felt like he was being interrogated. In cross-examination, he agreed that he was likely fidgeting. He also accepted that he may have been visibly distressed. The Patient testified that, notwithstanding his distress, he answered all the Doctor’s questions because he needed help.
[31] The Patient testified that he told the Doctor he was receiving disability benefits for the last few months because of borderline personality disorder and stomach issues. The Patient says that the Doctor fixated on his disability by asking who had signed the application for disability benefits and why. He says the Doctor’s attitude towards him changed when he disclosed that it was his psychiatrist who had signed the application for disability benefits.
[32] The Patient testified that, abruptly and out of nowhere, the Doctor told him that he had to go elsewhere. The Patient says that when he asked the reason, the Doctor told him that he had too many problems and did not like his attitude. The Patient says this occurred shortly after the Doctor had asked him about being off work and receiving disability benefits. The Patient understood the Doctor’s comment that he had to go elsewhere to mean that he could not see any other physician at the Clinic, including Dr. J.
[33] There is an issue about whether, during the appointment, the Patient requested an ultrasound. In his response to the complaint, Dr. M asserted that the Patient had demanded an ultrasound. During the hearing, the Patient denied that he demanded an ultrasound. However, his evidence on this point shifted during the hearing. During cross-examination he stated that he did not want an ultrasound, but rather he wanted treatment. Later he testified that he assumed the treatment he needed was an ultrasound because that is what happened the last time and was therefore hoping for an ultrasound. Later, the Patient agreed that he asked for an ultrasound. There is no dispute that ultimately, Dr. M did not provide the Patient with a requisition for an ultrasound. The Patient denied that the Doctor explained to him why an ultrasound was not clinically indicated and/or the possible causes of rectal bleeding. The Patient also denied that the Doctor explained that the reason he suggested returning to the medical centre was because they had already started investigations on the presenting issue.
[34] The Patient testified that when the Doctor left the examination room, he sat there for a while not knowing what to do. The Patient says that when he eventually left the room and entered the hallway, he saw the Doctor emerge from another room. The Patient says they made eye contact, and then the Doctor walked away from him.
[35] The Patient testified that he returned to the waiting room of the Clinic and stayed there for around 30 minutes. During that time, he says he asked the receptionist for the Doctor’s name and whether there was a process to make a complaint about doctors at the Clinic. He further testified that he told the receptionist he had more questions for the doctor and was going to wait.
[36] The Patient says the Doctor entered the waiting room, and he approached the Doctor to speak with him, but the Doctor hurried off in the opposite direction toward the hallway. The Patient testified that, at this point, he left the Clinic and while in the parking lot, a police officer approached him.
[37] The Patient says the Doctor wrongly treated him like a threat and criminal by calling the police. He says that the Doctor did so knowing his vulnerable position, including that he lives alone and with depression.
[38] The Patient testified that the police arrested him. He described the police’s handling of him as aggressive, including by putting him in handcuffs. He testified that the interaction with the police was traumatic and harmful. He says that the trauma and harm flowing from the encounter with the police still impacts him today. The police are not a party to the complaint.
[39] While not relevant to my decision, I pause to acknowledge that the Patient presented evidence to show that there was no basis for the police to arrest him that day.
[40] The Patient testified that as a result of the events of February 6, 2019, he no longer trusts the health care system and avoids seeing a doctor.
B. The Doctor’s Evidence
[41] The Doctor testified about his training and experience as a physician in general practice. The Doctor completed his training in 1984 and practiced general medicine up until 2020. For over 35 years, he saw patients in hospitals, clinics, and on reserves.
[42] The Doctor joined the Clinic in 2016 and practiced there until 2020. He testified that his practice at the Clinic was mostly seeing elderly geriatric patients with complex medical problems, as well as seeing people who did not have insurance and had no access to medical services. The Doctor worked at the Clinic three days a week and saw between 12 and 20 patients a day. His evidence was that he spent approximately 15 to 30 minutes with each patient, depending on the complexity of the case.
[43] The Doctor understood that the Patient was a walk-in patient and recalled that the appointment would have started after 5:00 pm.
[44] The Doctor testified that he began the appointment in his usual way by greeting the Patient and asking the reason for the visit. The Doctor says the Patient did not respond to his greeting and appeared agitated. The Doctor testified that the Patient told him he was there because of abdominal pain and rectal bleeding and wanted an ultrasound. According to the Doctor, he then followed his regular practice of taking a history to get more information to understand what was going on with the Patient.
[45] The Doctor says that through his questioning of the Patient, he obtained some information about the Patient’s medical history including rectal bleeding, kidney pains, twisted bowels, and a hernia. He also obtained information from the Patient about his social history including that he was not working at the time and was receiving disability benefits.
[46] The Doctor described the Patient as jumping around with information and that the history-taking was confusing and “all over the place.” The Doctor testified that he felt the Patient was not being forthright in response to the Doctor’s questions about his family doctor.
[47] The Doctor says that he asked the Patient about his family doctor during the appointment because: (1) he was trying to establish what was going on with the Patient and for how long; (2) the Patient mentioned attending another clinic, specifically the medical centre; (2) a family doctor usually signs off on disability benefits and makes referrals to specialists like a psychiatrist; and (3) the Doctor was required to send a copy of his notes to the Patient’s most responsible physician. According to the Doctor, the Patient told him that his psychiatrist had signed the disability paperwork. The Doctor says he did not ask the Patient about the details of his mental health issues.
[48] The Doctor testified that he observed the Patient become increasingly agitated during the history taking process. He described the Patient as loud. He also described the Patient as leaning towards him like he was trying to get up out of his chair, which the Doctor perceived as threatening. He testified that he asked the Patient a few times to calm down, but he did not. The Doctor says that toward the end of the appointment the Patient told him “you work for me,” in a loud and aggressive manner, which he found frightening. The Doctor testified that this occurred near the end of the appointment, and after he had explained to the Patient that an ultrasound would not be useful in determining the source of the rectal bleeding and that he would be best served by going back to the medical centre. The Doctor felt that the Patient did not want to listen to him.
[49] According to the Doctor, the appointment lasted about 20 minutes, and at the end he told the Patient that the conversation was over, and he was leaving. He testified that he ended the appointment because there was nothing further he could do for the Patient during the visit, and the Patient’s behaviour was escalating to the point he no longer felt safe in the examination room. The Doctor perceived the Patient’s body language and raised voice as aggressive and threatening. The Doctor denies telling the Patient that he had too many problems and needed to get out. He also denies telling the Patient he could not see other physicians at the Clinic.
[50] The Doctor also testified that he did not consider the presenting medical issue as urgent because the symptoms had started a couple of days ago and there was no acute bleeding. He also understood from the Patient that his stomach issues had been going on for a couple of years and had been investigated recently at the medical centre. The Doctor testified that this is the reason he did not issue a requisition for an ultrasound and suggested to the Patient that he would be best served by going back to the medical centre.
[51] The Doctor testified that when he left the room, he went into an empty examination room and recorded his notes from the appointment.
[52] Below I reproduce the notes that the Doctor says he wrote at that time:
Subjective
History:
Friday and Saturday had abd pain and bleeding PR – past 2 years bleeding from bowels and now has bloody diarrhea and severe kidney pains as well and not sure if related to his hernia. Last time he had U/S was told that he had twisted bowels. Investigated at [medical centre] and enlarged liver. Used to be a heavy drinker most of his life and last drink was 4 months ago. Lives with his dogs in a house. Smokes pot and has borderline personality and depression. CXR apparently showed dextrocardia. He is on disability for 3-4 months because of his borderline personality and signed off by Dr. [redacted] psych. On psych meds that he cannot recall.
Objective:
Body habitus and expression very aggressive demanor and in no acute distress and telling me that I work for him.
Assessment:
Dextrocardia Behavior Aggressive
Plan
I have advised him that he is best served by going to see his regular doctors that have been looking after him as he has a florid history of bleeding that could be from a number of reasons from alcohol to piles etc and insists that he wants an u/s that I do not think is going to solve his issues. His investigations are best decided by his regular physicians who know him. He was being louder and more adopting a more physically threatening posture and coming at which me when I said that this visit is over and I was not able to interact with him any longer as my initial instincts of not feeling safe was right and I feared for my well being.
[reproduced as written]
[53] The Doctor testified that he then went to see his last patient of the day. According to the Doctor, his next patient told him there was an agitated fellow talking to other patients in the waiting room, stating that he was waiting for the Doctor and looking for the Doctor’s car. The Doctor testified that he then went out into the hallway and saw the Patient coming towards him. The Doctor testified that the Patient was yelling at him, called him a “coward,” said that he was “running away.” He also testified that the Patient made a gesture which he interpreted as a signal to go outside. The Doctor perceived the Patient’s conduct as aggressive and a threat to his personal safety.
[54] The Doctor testified that he then went back down the hallway to the examination room closest to the exit and moved the examination table in front of the door to create a barricade so the Patient could not open it. He called the police from that room and says he did so because he was frightened by the Patient’s conduct.
[55] The Doctor says that when the police arrived, he gave a statement. He says he asked the police if it was safe to go to his car as it was getting dark out. The Doctor testified that, before he left the Clinic, he added information about the police incident into his clinical notes for the Patient’s appointment.
[56] Below I reproduce the part of the Doctor’s chart notes that he added after encountering the Patient in the hallway and talking to the police:
[Redacted] was there as next patient and told me that she had overheard what he said at the front desk that he is going to be waiting for me and looking for my vehicle and I went to front desk to check and he was walking in after he had already left and looking for me. He eyed me in the hallway and said that I was a coward and running away and was in aggressive demeanor and I called Police who attended within minutes and told n\me he was unhinged and that he will be taken to his home and had been warned not to attend this clinic again. He could be charged with
uttering threats but nothing usually happened and was told to call police
asap if he shows up.
[reproduced as written]
[57] During cross-examination, the Doctor was asked about his notes, including what he wrote after the appointment. He testified that:
a. The medical record is an account of everything that happened and that if a person is aggressive or threatening, it is common practice to document this in the chart notes. It is the only place to record this kind of information.
b. He needs to be as accurate as possible, and therefore, tries as much as possible to capture everything with the exact words used.
c. The part about the Patient being “unhinged” and uttering threats were not the Doctor’s words, but rather what the police officer said.
IV Issues and law
[58] To succeed in his case, the Patient must prove that (1) he had a disability at the relevant time, (2) he experienced an adverse impact in a service customarily available to the public, and (3) his disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[59] If the Patient does not establish the three elements of his case, the Tribunal need not consider the duty to accommodate. This is because there is no freestanding duty to accommodate. The duty to accommodate only arises as part of a defence if discrimination is established.
[60] As noted above, there is no dispute that the Patient has a mental disability. However, whether the Patient has a physical disability under the Code is in dispute.
[61] The parties further dispute whether the Patient has established that he experienced an adverse impact regarding a service customarily available to the public, and whether his disability was a factor in the alleged adverse impact.
V ANALYSIS
A. Does the Patient have a disability protected by the Code?
[62] In his complaint, the Patient alleges discrimination in services based on physical and mental disability. The Tribunal proceeded with the complaint under both grounds. In this section, I explain why I find the Patient has established a mental disability protected by the Code but not a physical disability.
[63] The Patient’s testimony and the medical documents admitted at the hearing confirm that the Patient has a long and complex psychiatric history. The Doctor concedes that the Patient has a mental disability under the Code.
[64] The Doctor argues that the evidence presented at the hearing does not, however, support a finding that the Patient had a physical disability at the relevant time.
[65] For the following reasons I dismiss the allegations based on physical disability.
[66] In the complaint, the Patient referred to a physical disability but did not provide any details. During the hearing, he testified about times in his life when he was unable to work due to health issues and received disability benefits. The Patient; however, generally had a poor memory about the details of when he was not working and for what reason, other than a time when he was injured in a motor vehicle accident.
[67] The Patient did not identify a physical disability at the time of the appointment, other than the presenting issue with his stomach.
[68] The Patient did not address the issue of physical disability at all in his final argument.
[69] In contrast, the Patient testified in detail about his past and present mental health challenges. He argued that the Doctor’s attitude toward him changed after learning that he was not working, receiving disability benefits, and seeing a psychiatrist. He also argued that stigma and stereotyping associated with mental illness contributed to the Doctor’s conduct.
[70] In all these circumstances, I agree with the Doctor that the Patient’s evidence does not establish that he had a physical disability within the meaning of the Code at the relevant time.
B. Was the Patient adversely impacted in the provision of a service customarily available to the public?
[71] The Doctor disputes that the Patient was denied a service customarily available to the public. He argues that, therefore, there can be no adverse impact. His evidence was that his practice was to not make a diagnosis for rectal bleeding in one visit because there are many possibilities and a process to distill a diagnosis. According to the Doctor, he was exercising his professional medical judgment when he assessed that an ultrasound was not clinically indicated and recommended that the Patient return to the medical centre. The Doctor testified that he attempted to explain his reasons for redirecting the Patient back to the medical centre, but the Patient did not accept it. The Doctor says there was no denial of services. He also says that the services he provided to the Patient were the same services he would have provided to any other Patient in the circumstances.
[72] The Patient argues that he was denied necessary medical services.
[73] For the purposes of this decision, I assume without deciding that the ending of the appointment is an allegation that the Doctor refused to provide a service contrary to s. 8 of the Code. In these circumstances, I assume without deciding that the Patient experienced an adverse impact from the Doctor’s decision to end the appointment when he did.
[74] The Doctor argues that calling the police is not a denial of a service customarily available to the public. The Doctor says that by the time he called the police, the appointment had already been terminated. In his view, a finding of discrimination for calling the police could have a chilling effect on members of the public.
[75] The Patient argues that the Doctor used the police as a means to target and harm him.
[76] As set out earlier in this decision, the police are not a party to this complaint, and I do not consider whether the police’s treatment of the Patient breached the Code.
[77] There is no dispute that the Doctor was the service-provider. He says that he completed the service then observed that the user of the service was still on the premises. He testified about the encounter that occurred after the appointment had ended, which was a cause for concern. As a result, he called the police and reported a concern for his safety.
[78] For the purposes of this decision, I will assume without deciding that the calling the police allegation is an allegation of discrimination regarding a service captured by s. 8 of the Code. In these circumstances, I assume without deciding that the Patient experienced an adverse impact from the Doctor’s call to the police.
C. Was the Patient’s disability a factor in the adverse impacts?
[79] The Patient argues that the Doctor perceived him as a threat based on stigma and stereotypes associated with mental illness. Specifically, the Patient argues that the Doctor’s attitude toward him changed after the Doctor learned that he was off work, receiving disability benefits, and seeing a psychiatrist for his mental health issues.
[80] For the following reasons, I find the Patient has not established a connection between his mental disability and the adverse impacts.
[81] On the contrary, I find, on a balance of probabilities, that the Doctor had solely non-discriminatory reasons to end the appointment and later, call the police. In these circumstances, the Patient has not met his burden to prove that his disability was a factor in the adverse impacts.
[82] I begin by noting that I gave significant weight to the Doctor’s chart entry for February 6, 2019. I accept the Doctor’s evidence that he recorded the notes on the same day as the interaction with the Patient and has a professional and ethical obligation to create accurate notes. I also observe that although the Patient disputed some aspects of the chart notes at the hearing, he agreed in his final argument that aspects were accurate, primarily the section where the Doctor recorded the Patient’s report of his medical and social history (i.e. the subjective history). Lastly, I considered that there had been a considerable passage of time between the events at issue in the complaint and the hearing.
[83] I also considered that the Patient generally had a poor memory of events. This was most apparent when he gave evidence about his work and medical history, including times when he was working versus times he was receiving disability, employment insurance, and/or ICBC benefits.
[84] I begin with the ending of the appointment. The Patient asserts that the Doctor ended the appointment soon after he learned about his history of mental health issues, specifically borderline personality disorder and depression. On this basis, he argues that a connection between his mental disability and the Doctor’s decision to end the appointment can be inferred based on the timing. Although he does not argue it explicitly, I also understand the Patient to be saying that stigma, bias, and/or stereotyping were factors in the Doctor’s perception that he was aggressive and a threat. In his final argument, the Patient highlights that persons living with mental illness face real stigma, including assumptions that mental health issues automatically mean you are violent or a threat. I understand the Patient to be arguing that the Tribunal ought to consider the social context of myths and stereotypes about mental illness to draw an inference of discrimination.
[85] The Doctor denies there is any correlation between the Patient disclosing information about his mental illness and psychiatrist and the appointment ending. He testified that the conversation continued after the Patient disclosed that information. The Doctor says that he ended the appointment for the following reasons:
a. An ultrasound was not clinically indicated;
b. The Patient would be best served by returning to the medical centres where investigations of this issue had been started;
c. The Patient’s behaviour was escalating throughout the appointment and culminated in the comment “you work for me” when the Patient did not want to listen to the Doctor’s recommendations; and
d. The Doctor no longer felt safe.
[86] For the following reasons, I prefer the evidence of the Doctor regarding the reasons for ending the appointment when he did.
[87] The Doctor completed a thorough history-taking because he had not seen the Patient before. The Patient provided information about several issues in his medical history that would have required follow-up questions. I accept that questions about the Patient’s lifestyle, living arrangements, work, disability benefits, medications, and family doctor were relevant questions in the circumstances.
[88] The Doctor denied that he fixated on the Patient’s mental health as alleged, and the Patient did not present evidence to the contrary. It is undisputed that the Doctor only obtained a copy of the Patient’s complete medical records, including his psychiatrist’s records, during the course of the complaint and did not have them at the time of the appointment. The evidence indicates that the only information the Doctor had at the time was that the Patient was unable to work for several months due to mental illness and was living with borderline personality and depression.
[89] I accept the Doctor’s evidence that he suggested that the Patient go back to the medical centre and did not tell him that he had to go elsewhere. This is consistent with his contemporaneous notes, his evidence that it was a suggestion and not an order, and his evidence that he does not have the right to stop the Patient from seeing any other doctor who is willing to see him.
[90] I accept the Doctor’s evidence that the Patient insisted that he needed an ultrasound, and based on his professional medical judgment, an ultrasound would not be helpful. As set out above, the Patient initially denied that he demanded an ultrasound; however, he retreated from that position when he was shown a copy of his original complaint form where he wrote, “That day when I went to the doctor’s office, I was just hoping for an ultra-sound, nothing more.”
[91] I accept the Doctor’s evidence that the Patient did not listen to his explanation about the different causes of bleeding and why an ultrasound would not be helpful. This is consistent with the Doctor’s contemporaneous notes.
[92] I find that the Patient was loud during the appointment. This is consistent with the Doctor’s contemporaneous notes. It is also consistent with subsequent observations of his demeanor by his psychiatrist during their appointments.
[93] During cross-examination, the Patient was asked about a note his psychiatrist made in his medical chart in December 2018. The psychiatrist described the Patient’s affect as “typical histrionic and loud at times.” The Patient testified that he has a lot of passion but disagreed that he can be loud. He was not familiar with the term histrionic.
[94] The Patient was also asked about an appointment he had with his psychiatrist in March 2019. The psychiatrist’s chart notes indicate that they discussed the incident at the Clinic on February 6, 2019. Below I reproduce the relevant parts of the chart note:
Recently he went to a family doctor asking for help and told the family doctor that he got disability. His family doctor asked him to leave. He had a discussion with his family doctor, who left the office and called the police on him. It is very disappointing.
Gets very loud and histrionic. When I indicated to him maybe the way he presented as loud – actually the doctor took it the wrong way and the staff called police for their safety. He indicated that could be but nobody is willing to help him. I mentioned to him that he has to correct his cognitive distortion.
[95] The Patient testified that he had a conversation with his psychiatrist and asked for his help. He disputed that there could have been a concern about safety because of how he presented and asserted that the psychiatrist did not take accurate notes. He also disputed that he would have been loud during that appointment.
[96] A third entry from the psychiatrist, dated June 2019, was put to the Patient. The psychiatrist again described the Patient as histrionic and loud at times. The Patient did not recall seeing the psychiatrist in June 2019 and suggested that the date was wrong because he saw the psychiatrist once after the incident at the Clinic with the Doctor. The Patient again denied that he would have been loud during that appointment.
[97] I find that the psychiatrist’s observations of the Patient as “loud” over several medical appointments tends to support the Doctor’s evidence that the Patient was loud during the appointment at issue in this complaint.
[98] I accept the Doctor’s evidence that the Patient did not change his behaviour when asked to calm down. Although the Patient denied being agitated, he acknowledged that he was frustrated, distressed, and likely fidgeting. He also testified that the Doctor made a comment about his attitude.
[99] The evidence before me supports a conclusion that the Doctor felt there was nothing more that he could do for the Patient, so he ended the appointment. The evidence also supports a conclusion that the Doctor had concerns about the Patient’s demeanor, found him aggressive, and began to feel unsafe, including when the Patient would not listen to his explanations and instead told him “you work for me” at the end of the appointment.
[100] In all these circumstances, I accept the Doctor’s non-discriminatory reasons for ending the appointment.
[101] In reaching this conclusion, I specifically considered whether there is evidence that the Doctor’s perception was based on stereotypes about people with mental disabilities, conscious or unconscious. There is no doubt that discrimination based on mental disability can occur without any conscious intention and is often subtle. I also considered that stigma may cause people to profile those with mental disabilities based on preconceived ideas about their character and treat them with suspicion, including perceiving them as a danger to others: Mai v. Hillcrest Community Center Preschool and another, 2021 BCHRT 65 at paras. 53 to 55.
[102] Ultimately, the Patient did not persuade me that stigma, bias, or stereotyping was at play. The Patient did not point to any aspect of the interaction, including specific questions, from which the Tribunal could infer the Doctor was, consciously or unconsciously, biased in relation to persons with mental disabilities, including persons living with borderline personality disorder and/or depression. The Patient also did not persuade me that the Doctor’s ending of the appointment was premature or an overreaction. The Doctor completed a thorough history taking and spent approximately 20 minutes with the Patient. This is apparent from the notes that he took. He also provided sound medical reasons for not providing a requisition for an ultrasound and recommending that the Patient return to the medical centre where investigations had already been started.
[103] I also observe that the Doctor’s minimal reference to a mental disability in the chart notes support his evidence that this information did not have a great significance for him. As set out above, the Doctor wrote, “He is on disability for 3-4 months because of his borderline personality and signed off by Dr. [redacted] psych. On psych meds that he cannot recall.”
[104] I specifically considered the Patient’s timing argument. It is well established that an inference of discrimination can be drawn based on timing. However, the Patient did not elaborate on how quickly or abruptly he says the appointment ended after the Doctor learned he has a mental health history and sees a psychiatrist. I found his evidence about the sequence of events that day less detailed and less reliable than that of the Doctor, which is understandable given the passage of time and his lack of contemporaneous notes. Having considered the totality of the evidence, I prefer the evidence of the Doctor that the conversation continued after they discussed the disability benefits, and ended when the Doctor concluded there was nothing further he could do for the Patient during the visit, and the Patient did not accept that.
[105] In short, I accept that the Doctor ended the appointment based on his assessment of what would be in the Patient’s best interest considering the nature of the issue and prior investigations, and the Patient’s behaviour.
[106] I pause to address the Patient’s argument that the Doctor may have tampered with, fabricated or falsified his chart notes in order to defend himself in case of a complaint, including this one. The Patient has suggested that the Doctor added information to his chart notes at a later point in time in order to protect and defend himself from a complaint. When this was put to the Doctor at the hearing, he denied this accusation and explained in detail the process for recording clinical records, including the importance and ethics associated with recording accurate and thorough notes on the same day, as temporal as possible. Where the Patient did not adduce any evidence to support his assertion of document altering aimed at deception, I reject this argument. A serious allegation of this nature must be based on more than a bald assertion.
[107] Next, I turn to the Doctor’s phone call to the police.
[108] As I understand it, the Patient says the Doctor called the police based on an incorrect perception that he was a threat. The Patient associates this misperception with the common stereotype that people with mental health are dangerous and violent.
[109] The Doctor denies that the Patient’s history of mental health issues was a factor in his decision to call the police. He says that he did so for his own safety only after another patient warned him that the Complainant was waiting for him in the lobby and asking where his car was, and the Patient confronted him in the hallway.
[110] For the following reasons, I find that it was the Doctor’s sincerely held belief that he was unsafe and not the Patient’s disability that led to the Doctor calling the police.
[111] I accept the Doctor’s evidence that his last patient of the day told him that there was an agitated person looking for the Doctor’s car. This is consistent with the chart notes.
[112] I prefer the Doctor’s evidence that the Patient yelled and gestured at him in the hallway. I find that the Doctor’s chart notes recorded on the same date provide the most accurate depiction of what the Patient said. Therefore, I also accept that the Patient called him a coward and referred to him running away.
[113] I found the Doctor credible when he described the encounter as frightening and that he feared for his safety.
[114] In short, I accept the Doctor’s evidence that the Patient’s behaviour during and after the appointment, together with his understanding that the Patient was looking for his car, caused him to fear for his safety and led to him calling the police.
[115] Although the Patient denies the comments and gestures attributed to him, I find it relevant that the Patient acknowledges that he did not leave the Clinic after the appointment. He also testified that he told the receptionist that he still had questions for the Doctor, and when he saw the Doctor in the hallway, he approached the Doctor and tried to speak with him. In these circumstances, I prefer the evidence of the Doctor which is corroborated by his contemporaneous chart notes.
[116] Other than the fact he had previously disclosed a history of mental health during the appointment, the Patient has not pointed to any other evidence from which the Tribunal could infer that his mental disability was a factor in the Doctor’s decision to call the police. He also has not persuaded me that the Doctor’s actions were disproportionate, or an overreaction based on arbitrary or stereotypical views of persons living with mental illness. The Patient did not make any specific reference to stereotypes of persons living with borderline personality or depression.
[117] In addition, the Patient speculated at the hearing that the police were called because he asked the Clinic reception about a complaint process. I observe that this does not align with the Patient’s theory that the Doctor considered him a threat based on his history of mental health issues. In any event, there was no evidence called in support of it.
[118] Based on the whole of the evidence before me, I find that the Doctor formed his perception of a safety concern based on the whole of his experience with the Patient. In these circumstances, I accept the Doctor’s evidence that he called the police strictly because he feared for his safety in the moment, and his fear was not based in any conscious or unconscious bias.
[119] Based on all of the foregoing, I dismiss the complaint against the Doctor.
D. Allegations against the Clinic
[120] I understand the Patient is alleging that the Clinic is vicariously liable for the conduct of the Doctor under s. 44(2) of the Code. Where I dismiss the complaint against the Doctor, it follows that I must dismiss the complaint as against the Clinic.
[121] For the sake of completion, I also find that the Patient did not adduce evidence or make any argument that connects his disability to any alleged act or omission on the part of the Clinic. For example, he did not give evidence about any disability-related needs for visiting a doctor or a clinic.
[122] In all these circumstances, I dismiss the complaint against the Clinic.
VI CONCLUSION
[123] The complaint is dismissed under s. 37(1) of the Code.
[124] I grant the Doctor’s application to limit publication. The Tribunal will continue to anonymize the names of the parties, referring to them as Mr. S, Dr. M, and the Clinic and redact any information that could identify the parties.
VII ORDERS
[125] I order that the Tribunal must anonymize the names of the parties and must redact any information that could identify the parties before it releases any parts of the complaint file or the Tribunal’s decisions to the public under Rule 5.
Kathleen Smith
Tribunal Member