Civil claim arises from patient’s opioid dosage post-motor vehicle accident
The British Columbia Court of Appeal has ruled that the College of Physicians and Surgeons of British Columbia failed to show that court openness would seriously risk achieving an important public interest in a civil case concerning opiate dosage.
In College of Physicians and Surgeons of British Columbia v. Madryga, 2025 BCCA 250, a patient filed a civil claim against the health professions regulator in February 2023. He alleged that he had been prescribed a high dosage of opioids to manage chronic, debilitating pain after a 1997 motor vehicle accident.
He said the regulator interfered with the medical care of his treating physicians – “Dr. L” and “Dr. M” – and pressured them to decrease his prescribed opiate dosage to a level deemed appropriate under its prescription review program since 2015. He added that the program’s interactions with the two physicians amounted to regulatory harassment.
The regulator responded to the patient’s civil claim in May 2023 and amended its response in October 2023. The amended response addressed his claims about the communications between the program and his treating physicians.
In a December 2023 letter, Dr. M’s then-counsel objected to some material in the amended response and alleged that the regulator breached s. 26.2 of BC’s Health Professions Act, 1996, which protects the confidentiality of information given to a quality assurance committee or program.
In response, the regulator applied to the Supreme Court of British Columbia for an order sealing the amended response’s disputed portions. On the other hand, the patient requested the production of records that the regulator held. The regulator countered that the confidentiality requirements in ss. 26.2 and 53 of the Health Professions Act prevented the disclosure of the records sought.
The BC Supreme Court judge deemed ss. 26.2 and 53 unconstitutional for interfering with a provincial superior court’s core jurisdiction under s. 96 of the Constitution Act, 1867. The judge said these provisions lacked force and effect to the extent that they deprived the court of a way to review the propriety of producing records during litigation.
The regulator appealed and applied for a sealing order of material that it planned to include in the appeal record, specifically portions of its amended response and the letter from Dr. M’s then-counsel objecting to some parts of the amended response. Opposing this application, the patient argued that no compelling public interest justified sealing the material.
Dr. M, no longer represented by the counsel who authored the December 2023 letter, withdrew his objection to the amended response’s contents and opposed the request for a sealing order.
Sealing order denied
The Court of Appeal for British Columbia dismissed the application for a sealing order. In reaching this outcome, the appeal court addressed the steps of the test in Sherman Estate v. Donovan, 2021 SCC 25.
First, the appeal court accepted the regulator’s claim that there was an important public interest in complying with the relevant statutory confidentiality provisions, specifically those in the Health Professions Act.
Second, the appeal court held that the regulator failed to establish that court openness would seriously risk attaining this important public interest. Thus, the appeal court considered it unnecessary to discuss the remaining steps of the Sherman Estate test.
The regulator alleged that, without a sealing order, there would be a serious risk that its registrants would lose faith in the confidentiality of the quality assurance process. The appeal court disagreed and said court openness would not seriously risk the public interest in ensuring the integrity of the quality assurance process.
The appeal court noted that, regardless of a sealing order’s issuance, it would keep a public record of the regulator’s filing of an amended response, the objection of Dr. M’s then-counsel to the disclosure, and the regulator’s application seeking a sealing order in response to this objection.
The appeal court concluded that court openness posed no further risk to the integrity of the regulator’s quality assurance process, given that Dr. M opposed the requested sealing order and given that the narrative regarding the interaction between Dr. M and the program would mostly stay unsealed either way.
Lastly, the appeal court acknowledged that this appeal and the underlying claim engaged complex issues concerning the application of the confidentiality requirements of s. 26.2 and s. 53 in the context of litigation assailing the actions of a quality assurance program.
