Lindberg v. Fraser Health Authority and another, 2024 BCHRT 282
Date Issued: October 4, 2024
File: CS-003075
Indexed as: Lindberg v. Fraser Health Authority and another, 2024 BCHRT 282
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:
Sara Lindberg
COMPLAINANT
AND:
Fraser Health Authority and Dr. Rick Mentz
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Alison Moore
Counsel for the Respondent Dr. Rick Mentz: Andrew Tang
I INTRODUCTION
[1] In March 2020, Sarah Lindberg was pregnant and living in Maple Ridge. She wanted to deliver her baby at Ridge Meadows Hospital [RMH]. Dr. Rick Mentz, a contractor at RMH, told Ms. Lindberg she could not give birth at RMH. He told her she would need to go to a hospital with a higher level of care designation. Ms. Lindberg alleges Fraser Health Authority [FHA], who operates RMH, and Dr. Mentz discriminated against her based on her size and Body Mass Index [BMI]. She says Dr. Mentz discriminated against her on the basis of disability by treating her disrespectfully at an appointment and refusing to allow her to deliver her baby at RMH because of her BMI. I refer to Dr. Mentz and FHA as the Respondents in this decision.
[2] The Respondents deny discriminating and say they did not violate s. 8 of the Human Rights Code. Only Dr. Mentz has applied to dismiss the complaint without a hearing. This decision concerns whether the Tribunal should dismiss the complaint against Dr. Mentz without a hearing because there is no reasonable prospect it can succeed against him: Code, s. 27(1)(c).
[3] Dr. Mentz says the complaint should be dismissed against him because Ms. Lindberg has no reasonable prospect of proving he treated her disrespectfully. He says he provided her with the consultation requested and answered her questions as well as he could. Dr. Mentz also argues that, in any event, he could not accommodate Ms. Lindberg without incurring undue hardship as RMH’s policy – which he had no role in creating – is that patients with a BMI of 45 or more must be referred elsewhere to deliver their babies because RMH is not equipped for high-risk births.
[4] For the reasons that follow, I deny the application. I am not satisfied that Dr. Mentz is reasonably certain to prove that he would have incurred undue hardship if he recommended Ms. Lindberg be permitted to deliver her baby at RMH. I further find that the dispute about whether Dr. Mentz treated Ms. Lindberg disrespectfully, and if this was connected to her protected characteristic, is a foundational issue of credibility that must be resolved at a hearing. Ms. Lindberg’s complaint against the Respondents will proceed to a hearing.
[5] Before I explain my decision, I address a preliminary issue. Under the Case Path Pilot, the Tribunal permitted Dr. Mentz to file his dismissal application under s. 27(1)(c). Dr. Mentz filed his application under s. 27(1)(c) and s. 27(1)(d)(ii). The Tribunal will generally not consider dismissal on grounds other than those it permitted under the Case Path Pilot. There may be a narrow exception if the Tribunal decides it promotes the fair and timely resolution of the complaint to do so. The Tribunal exercises this discretion sparingly: Ibrahim v. The Owners, Strata Plan LMS 1222 and another , 2024 BCHRT 183 at para. 5. I decline to exercise that discretion here and have not considered the parties’ submissions on s. 27(1)(d)(ii).
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
[7] I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[8] Ms. Lindberg identifies as “fat.” For Ms. Lindberg, “fat” is a neutral term for people with larger bodies. Ms. Lindberg was pregnant in early 2020. She lived in Maple Ridge and wanted to give birth at her local hospital, RMH. Ms. Lindberg was diagnosed with gestational diabetes during her pregnancy. Ms. Lindberg was previously diagnosed with hypothyroidism and polycystic ovary syndrome [PCOS].
[9] Ms. Lindberg asked her midwives for a consultation with an obstetrician because of her gestational diabetes. Her midwives sent a consultation request to Dr. Mentz at RMH. The request lists “[gestational diabetes] requiring insulin this pregnancy as well as BMI <40” as the reason for the consultation.
[10] Dr. Mentz is a physician and surgeon licensed to practice medicine in British Columbia. During the relevant period, Dr. Mentz was an obstetrician at RMH. FHA says RMH is a community hospital with a maternity unit that is classified as low-risk and without the benefit of specialized staff and equipment.
[11] FHA’s “Higher Level of Care and/or Life, Limb and Threatened Organ Policy” [Higher Level of Care Policy]addresses BMI in pregnancy. The Higher Level of Care Policy sets out three FHA hospitals that are appropriate for complex perinatal conditions including bariatric care (BMI greater than 40). RMH is not on that list.
[12] RMH’s Obstetrical Site Committee has considered patient care and BMI since at least 2015. The parties have put before me minutes of the committee meetings from 2015, 2016, and 2020, where BMI and pregnancy were discussed.
Dr. Mentz attended the committee’s meeting in January 2020. The meeting minutes say, “Patients with a BMI of 45 or greater should be referred to deliver at a [Higher Level of Care facility]. If a patient has previously delivered at RMH with a BMI 45 or greater and her BMI has not increased, then she may deliver at RMH.”
[13] Ms. Lindberg met with Dr. Mentz on March 23, 2020. The parties’ descriptions of what happened at the consultation appointment differ on whether Dr. Mentz spoke to Ms. Lindberg about gestational diabetes. However, they agree that:
a. Dr. Mentz told Ms. Lindberg that her BMI was 46
b. Dr. Mentz told Ms. Lindberg she could not deliver at RMH because of her BMI
c. Dr. Mentz told Ms. Lindberg that she had to give birth at a different hospital because of her BMI, and
d. Dr. Mentz gave Ms. Lindberg an article on obesity in pregnancy.
[14] The parties also agree that Ms. Lindberg became upset when the issue of BMI was discussed during the appointment. Ms. Lindberg says she asked Dr. Mentz questions regarding the risks of her pregnancy, but Dr. Mentz did not answer her question and instead gave her an article regarding obesity and pregnancy. Ms. Lindberg says she burst into tears, and Dr. Mentz says she became angry and demanded answers to her questions. Ms. Lindberg disagrees with Dr. Mentz’s characterization of her as demanding.
[15] Dr. Mentz advised Ms. Lindberg’s midwives to refer her to a midwife group that works at another hospital. Dr. Mentz told Ms. Lindberg’s midwives that according to Ms. Lindberg’s pre-pregnancy information, her pre-pregnancy BMI was 46 and that she was not a suitable candidate for delivery at RMH. Dr. Mentz wrote:
Sara was very angry with the fact that I even mentioned that her BMI could complicate her pregnancy and delivery. She did not just want to know what complications I was referring to but was demanding that I give her “absolute risks.” I did inform her that that unfortunately is not possible, as she has multiple co-morbidities that can potentially affect her pregnancy. I did give her the article from UPTODATE on “Obesity in pregnancy” for her and her partner to review. I did inform her that she is high risk and unfortunately will not be able to delivery at our hospital.
[16] Ultimately, Ms. Lindberg delivered her baby at Royal Columbian Hospital without complication.
III DECISION
[17] Dr. Mentz applies to dismiss Ms. Lindberg’s complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c) The onus is on Dr. Mentz to establish the basis for dismissal.
[18] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[19] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[20] A dismissal application differs from a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[21] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[22] To prove her complaint at a hearing, Ms. Lindberg will have to prove that she has a characteristic protected by the Code, she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she does that, the burden will shift to Dr. Mentz to justify the impact as a bona fidereasonable justification. If the impact is justified, there is no discrimination.
[23] Dr. Mentz says that Ms. Lindberg has no reasonable prospect of proving any of the elements of the Mooretest. I will examine each element in turn before I address his argument that he is reasonably certain to prove a bona fide reasonable justification.
1. Is it beyond speculation that Ms. Lindberg has or was perceived by Dr. Mentz to have a disability within the meaning of the Code?
[24] I turn to the first element of the Mooretest. Dr. Mentz says there is no reasonable prospect that Ms. Lindberg will prove she has a disability within the meaning of the Code. However, he makes no arguments that go to this aspect of the Moore test. I have no trouble accepting that Ms. Lindberg has taken this aspect of her complaint out of the realm of conjecture. I make the following comments to assist the parties in understanding disability within the meaning of the Code going forward.
[25] Whether a complainant has a disability for the Code’s purposes depends on the facts and circumstances of the case: Young v. Vancouver Coastal Health Authority and others , 2018 BCHRT 27 at para. 100. This includes whether obesity constitutes a physical disability: Rogal v. Dalgliesh,2000 BCHRT 22; Hamlyn v. Cominco Ltd. [1989], B.C.C.H.R.D. No. 29 . Although the Code does not define “disability,” it has been interpreted by the Tribunal to mean a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Rael v. Cartwright Jewelers and another , 2021 BCHRT 106 at para. 13, citing Boyce v. New Westminster (City) , 1994 CanLII 18445 at para. 50. However, disability under human rights legislation, including under the Code, extends beyond biomedical conditions and functional impairments to perceptions and stereotypes regarding disability. This is sometimes referred to as the social construction of disability.
[26] The Supreme Court of Canada explained in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , 2000 SCC 27 at paras. 76-81:
49 Discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the mind of other people, in this case that of the employer.
48 Whatever the wording of the definitions used in human rights legislation, Canadian courts tend to consider not only the objective basis for certain exclusionary practices (i.e. the actual existence of functional limitations), but also the subjective and erroneous perceptions regarding the existence of such limitations. Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination
[27] At the heart of Ms. Lindberg’s complaint, in my view, is her position that she was perceived by the Respondents to be functionally limited based on her weight and that those perceived – but disputed –limitations required her to deliver her baby at a hospital with a higher level of care designation.
[28] Dr. Mentz does not dispute that Ms. Lindberg is, in her words, fat. Much of his argument on this application revolves around the rationale for RMH’s BMI threshold; specifically, that obesity in pregnancy is associated with increased complications requiring a higher level of care. Absent any argument from Dr. Mentz on why Ms. Lindberg has no reasonable prospect of making out this aspect of Moore, I decline to dismiss the complaint on this basis.
[29] Further, and in any event, Ms. Lindberg says that her physical disability stems from being diagnosed with PCOS and, she says, PCOS makes it difficult for her to lose weight. Therefore, Ms. Lindberg says that her weight is involuntary and permanent. Dr. Mentz does not dispute Ms. Lindberg’s claim of PCOS or how it impacts an individual’s weight. This is additional evidence that, in my view, takes her disability beyond the realm of conjecture.
[30] I also note that Ms. Lindberg identified her pregnancy as a disability in her complaint. Dr. Mentz argues that the Tribunal should dismiss this part of the complaint because pregnancy is considered discrimination based on sex, not disability.
[31] Dr. Mentz argues, and I agree, that human rights law has long recognized discrimination based on pregnancy, including pregnancy-related health impacts, as sex-based discrimination: Brooks v. Canada Safeway Ltd ., 1989 CanLII 96 (SCC), [1989] 1 SCR 1219. However, it would not be helpful to parse out Ms. Lindberg’s allegations by considering whether she has no reasonable prospect of establishing her complaint of discrimination based on her pregnancy. In Byelkova v. Fraser Health Authority, 2021 BCSC 1312 at para. 115, appeal dismissed as moot 2022 BCCA 205, the Court said the Tribunal should be reluctant to dismiss only some allegations under s. 27(1)(c) where the complaint itself will continue:
While the Tribunal may dismiss all or part of the complaint under s 27(1), insofar as the rationale for the s 27(1)(c) gatekeeping function is the efficient operation of the Tribunal, it may well be that no efficiency is gained by only dismissing half of the claim. Dismissing half of the claim could also later prove embarrassing, prompting inconsistent adjudicative decisions or foreclosing otherwise appropriate findings due to past rulings …
[32] This reasoning applies here. Ms. Lindberg alleges discrimination on the basis that her weight and BMI constituted a real or perceived disability by the Respondents who did not allow her to deliver at RMH and, in Dr. Mentz’s case, treated her poorly because of her weight. Her allegation on the basis of disability intertwines with her pregnancy. As such, the allegations must be considered in context with each other to be understood appropriately: Pattinson v. University of Northern British Columbia and another (No. 2) , 2024 BCHRT 110 at para 69; Fraser v. Tolko Industries Ltd. and others , 2021 BCHRT 118 at paras. 214-215. Further, no efficiency is gained by attempting to parse and dismiss some of the complaint allegations since the parties will need to address Ms. Lindberg’s pregnancy in the context of obesity.
[33] For the above reasons, I am persuaded Ms. Lindberg has taken her protected characteristics out of the realm of conjecture.
2. Is there no reasonable prospect Ms. Lindberg can prove she experienced an adverse impact in services?
[34] Next, I consider whether Ms. Lindberg has no reasonable prospect of proving she was adversely impacted by Dr. Mentz’s acts or omissions. On the evidence before me, I am not persuaded that Ms. Lindberg has no reasonable prospect of proving adverse impact.
[35] First, there is no dispute that Ms. Lindberg was unable to give birth at RMH. At the very least, Ms. Lindberg has a reasonable prospect of establishing at a hearing that being denied service at the hospital’s maternity unit constitutes an adverse impact. That it was on the basis of Dr. Mentz’s recommendation that she was referred elsewhere, is undisputed. Ms. Lindberg also says that the hospital she was referred to was 45 minutes away from her home rather than the 10 minutes it would take her to get to RMH. She says that her partner could not drive her to the new hospital due to an injury. She had to ask her father to drive her even though it would take him 45 minutes to get to her home and another 45 minutes to get her to the hospital. Not only was this inconvenient, she says, but she was also concerned about the potential implications of any delay, given she was told her pregnancy was high-risk.
[36] Second, Ms. Lindberg alleges that Dr. Mentz treated her disrespectfully by (1) refusing to answer her questions because he perceived her to be demanding, (2) focusing on her weight to the exclusion of gestational diabetes, and (3) miscalculating her BMI. Dr. Mentz says he is reasonably certain to prove that he discussed gestational diabetes with Ms. Lindberg; he provided answers and information in response to her questions and calculated Ms. Lindberg’s BMI according to her pre-pregnancy weight and height.
[37] There is a conflict in the parties’ evidence about what happened at the appointment, including how Ms. Lindberg’s BMI was calculated. They dispute whether Dr. Mentz provided Ms. Lindberg with any information regarding gestational diabetes or whether he focused solely on her BMI. The only two witnesses to the appointment were Ms. Lindberg and Dr. Mentz; their versions of events differ. As stated above, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti at para. 67.
[38] The only potentially corroborating evidence is Dr. Mentz’s report to Ms. Lindberg’s midwives written a few days after their appointment. With respect, this is Dr. Mentz’s evidence and read in context – particularly that he makes a conclusory statement about her being angry and demanding information, in that report- I am not satisfied it is capable of reconciling the different versions of events. Given the conflict in evidence, Dr. Mentz’s report is insufficient to resolve the conflict. Therefore, I cannot find these allegations have no reasonable prospect of success.
[39] I also note that Dr. Mentz argues Ms. Lindberg’s complaint has no reasonable prospect of success because he did not deny her a service and was never requested to be, nor was he, her primary care physician. He argues that he provided the requested service – an obstetrics consultation – in a non-discriminatory manner.
[40] I do not understand Ms. Lindberg’s complaint to be that Dr. Mentz refused to meet with her, nor does it assert that he was her primary care physician. Ms. Lindberg’s complaint against Dr. Mentz concerns how he treated her at the appointment and his determination that she could not deliver at RMH. To the extent that Dr. Mentz may be suggesting that he was not providing a service protected within the meaning of s. 8 of the Code – because he was not her primary care doctor – I cannot accept that argument. Section 8 of the Code prohibits discrimination regarding accommodations, services, and facilities customarily available to the public or a subset of the public which may be eligible for the service. This includes medical consultation services, even if provided on a one-off basis. Dr. Mentz has provided no authority that suggests otherwise.
[41] Based on all the above, I am not persuaded that there is no reasonable prospect Ms. Lindberg will be able to prove she experienced an adverse impact during her appointment and on the basis of Dr. Mentz’s determination she could not deliver at RMH.
3. Has Ms. Lindberg taken nexus out of the realm of conjecture?
[42] Here, I must decide whether I agree with Dr. Mentz that there is no reasonable prospect Ms. Lindberg will prove her protected characteristics were a factor in the adverse impacts alleged.
[43] Dr. Mentz argues that Ms. Lindberg provides no evidence besides her subjective perception of what happened at the appointment and that Dr. Sandwith’s evidence is “highly speculative and lacks direct application to this case.”
[44] I am unable to accept Dr. Mentz’s argument. Ms. Lindberg has provided an affidavit from Dr. Sara Sandwith, a family doctor in BC who says she has “a range of additional qualifications that are relevant to maternity care.” Dr. Sandwith provides her views on BMI research and pregnancy risks. She refers to research on healthcare provider attitudes and bias towards pregnant patients with high BMI. She says those attitudes may lead to differences in decision-making. She points to a study that found physicians provided shorter visits to heavier patients, found them to be more annoying and had less patience the heavier the patient. Ms. Lindberg relies on this evidence to support her argument that she has taken out of the realm of conjecture that Dr. Mentz treated her disrespectfully in the specific ways set out above and that her body size was a factor in that treatment.
[45] At a hearing, the Tribunal could find that Dr. Sandwith’s evidence is social context evidence that supports an inference of nexus between how Dr. Mentz treated Ms. Lindberg and her disability, presuming the Tribunal finds as a fact that he treated her disrespectfully in the ways alleged. This kind of evidence can assist the Tribunal to understand the prejudicial attitudes and stereotypes faced by members of a particular group, which may be relevant to proving nexus: see, for example, Radekv Henderson Development (Canada) Ltd, 2005 BCHRT 302 at paras. 29, 132-142, 548-554; Balikamav Khaira Enterprises Ltd, 2014 BCHRT 107 at paras. 469-490 and 584-588. Therefore, I am not persuaded that Dr. Sandwith’s evidence lacks application in this case.
[46] Next, I consider whether there is a nexus between the allegation that Dr. Mentz miscalculated Ms. Lindberg’s BMI and her protected characteristics. Ms. Lindberg has not said how her weight could be a factor in Dr. Mentz miscalculating her BMI. I do not see any basis in Ms. Lindberg’s or Dr. Sandwith’s evidence that could support an inference that his miscalculation had a nexus to Ms. Lindberg’s disability.
[47] However, I find – as I did above in the context of Ms. Lindberg’s disability – that it would not be helpful to parse out Ms. Lindberg’s allegations at this stage: Byelkova at para 115. Ms. Lindberg’s allegations of discrimination on the basis of her weight are intertwined with her BMI or calculations of her BMI, and her allegations of discrimination may be properly understood at the hearing by considering whether and why Dr. Mentz miscalculated her BMI: Pattinsonat para 69; Fraserat paras. 214-215. As mentioned above, no efficiency is gained by attempting to parse and dismiss some of the complaint allegations since the parties will need to address Ms. Lindberg’s BMI.
[48] For the above reasons, I am satisfied that Ms. Lindberg has taken nexus out of the realm of speculation and conjecture. I now turn to whether Dr. Mentz is reasonably certain to establish a defence at a hearing:Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.
4. Is Dr. Mentz reasonably certain to prove he discharged his obligation to accommodate Ms. Lindberg?
[49] To justify his recommendation that Ms. Lindberg could not deliver at RMH at a hearing, Dr. Mentz would have to prove that: (1) he adopted the standard for a purpose rationally connected to function being performed, (2) he adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses their duty to accommodate [the complainant] to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),[1999] 3 SCR 868 [Grismer] at para. 20.
[50] The first two elements of Grismer are not at issue on this application. Therefore, I do not address them here but turn to what is disputed: whether Dr. Mentz is reasonably certain to prove that it was reasonably necessary for him to enforce the BMI cutoff of 45 or greater to ensure Ms. Lindberg and her baby were safe during delivery. Put another way, whether he could not have reasonably accommodated Ms. Lindberg without incurring undue hardship.
[51] What is reasonable is fact-specific and will turn on the specific circumstances of a particular case: Central Okanagan School District No. 23 v. Renaud , 1992 SCR 970. For the reasons below, I am not persuaded that Dr. Mentz is reasonably certain to prove that he could not reasonably accommodate Ms. Lindberg without incurring undue hardship.
[52] First, on the evidence before me, it is not entirely clear what policy or policies Dr. Mentz was applying. Second, I am not persuaded that Dr. Mentz is reasonably certain to prove that he was required to refer Ms. Lindberg to a higher level of care facility once he calculated her BMI as 46 pursuant to the policies before me.
[53] Dr. Mentz says it is RMH’s policy that obstetrical patients with a pre-pregnancy BMI of 45 or more are precluded from delivering at RMH. He says the RMH policy is FHA’s regional policy which he was not involved in creating. Dr. Mentz further says RMH incorporated the BMI cutoff to provide a standardized objective measure for patient referrals. Dr. Mentz relies on RMH’s Obstetrical Site Committee meeting minutes, during which the BMI cutoff was discussed.
[54] Dr. Mentz does not name the policy he is referring to when he says RMH’s policy is a regional policy. However, he relies on the affidavit of Annette Harrington, FHA’s clinical manager for Maternal, Infant, Child and Youth, which FHA filed in this complaint. Ms. Harrington refers to, and put before me, FHA’s Higher Level of Care Policy. The Higher Level of Care Policy addresses complex perinatal conditions, including BMI greater than 40, and which hospitals are equipped to care for patients with those conditions. As mentioned, RMH is not listed for patients with a BMI above 40. I infer from the entirety of the materials, and Dr. Mentz’s reliance on the Higher Level of Care Policy, that this is the regional policy he refers to as FHA’s regional policy.
[55] Dr. Mentz also relies on RMH’s BMI discussions from the Obstetrical Site Committee. According to the committee meeting minutes dated January 8, 2020, “Patients with a BMI of 45 or greater should be referred to deliver at a [higher level of care hospital]. If a patient has previously delivered at RMH with a BMI of 45 or greater and her BMI has not increased, then she may deliver at RMH.”
[56] I understand Dr. Mentz’s argument that the policy he was following was the Higher Level of Care Policy as implemented by RHM’s Obstetrical Site Committee. The issue I have with Dr. Mentz’s argument is that the Higher Level of Care Policy and RMH’s cutoff are not the same. Neither Dr. Mentz nor Ms. Harrington explain why the Higher Level of Care Policy appears to have a lower BMI cutoff than RMH’s cutoff, as set out in the committee meeting minutes. As noted above, the cutoff reflected in the January 2020 meeting notes was 45 or greater. The cutoff in the Higher Level of Care Policy is above 40. This raises an unanswered question about whether RMH – or the practitioners applying its policy – have the discretion to set a different standard for patients who want to give birth at that hospital and on what basis they exercise that discretion.
[57] Dr. Mentz has also not explained why the RMH policy appears to have an exception for patients who have a BMI of 45 or greater but have previously delivered at RMH. As I understand his argument, he says it is unsafe for women to give birth at RMH if they have a BMI of 45 or more. He says this is because RMH does not have the necessary resources. It is not obvious to me, and Dr. Mentz does not explain, why those safety concerns do not apply to those who have previously delivered at RMH but are in the same BMI category as Ms. Lindberg. Again, this exception does not appear in the Higher Level of Care Policy, so it is unclear to me what policy he was actually following and what that policy required of him.
[58] In any event, for this application, the parties do not appear to take issue with the characterization of the policy as RMH having a BMI threshold of 45 or greater. Instead, Ms. Lindberg takes issue with whether the Respondents are reasonably certain to prove that the standard is reasonably necessary to achieve patient safety or whether the Respondents could have accommodated her without undue hardship.
[59] Dr. Mentz argues he acted appropriately and according to RMH’s policy by advising Ms. Lindberg that she would need to deliver her baby elsewhere. He says there were legitimate medical and safety-based reasons compelling him to tell Ms. Lindberg she would need to deliver at a hospital that was better equipped to support high-risk pregnancies. Dr. Mentz submits that the basis for the RMH policy includes risks associated with anesthesia in the event of a caesarian section, greater risks associated with airway management under general anesthetic, and the necessity of having a second qualified surgeon or two surgical assistants in light of elevated risks, which further complicates the procedure.
[60] Ms. Harrington adds that it is her understanding that there is a shared medical concern among contract physicians and health authority representatives for the delivery of newborns with expectant mothers that have a higher than 45 BMI at RMH. This, she says is due to concerns that arise out of associated risk of complex perinatal conditions in pregnancy and the level of care available at RMH. Ms. Harrington says that the resources at RMH are insufficient to manage any larger acute problems that could arise during a newborn’s delivery due to a lack of available sub-specialists to address the potential higher level of care needs should the delivery not proceed routinely.
[61] Ms. Lindberg argues that Dr. Mentz has failed to show he is reasonably certain to prove that a BMI cutoff of 45 is reasonably necessary to ensure patient safety. She says the Respondents do not address why the threshold of 45 or greater was chosen, as opposed to another BMI categorized as “obese.”
[62] Ms. Lindberg relies on Dr. Sandwith’s evidence concerning the research into BMI and birthing risk to argue that the policy is arbitrary. Dr. Sandwith says that using BMI as a tool for assessing perinatal risk is limited in numerous ways, including:
a. None of the risks associated with increasing BMI occur exclusively in patients with higher BMI or are eliminated by having a BMI between 18.5 and 24.9 (the defined reference standard).
b. None of the studies associating increasing perinatal risk differentiates adverse outcomes caused by increased fat from confounding factors.
c. There are limited studies that quantify the absolute risk of specific adverse outcomes. She cites one study that found women undergoing cesarian sections at different BMI categories failed to demonstrate any difference in risk of obstetric, anesthetic, and neonatal outcomes except for increased intra-operative blood loss. She says this study suggests no simple relationship exists between increasing BMI and anesthetic or operative complications.
[63] Dr. Sandwith’s opinion is also that there is evidence that supports options for a more nuanced approach to risk and care planning for women who are fat and pregnant, other than relying on their BMI. She cites two studies: one that described using clinical factors and biomarkers beyond BMI to stratify pregnancy and delivery risk amongst obese pregnant women, and one that showed no difference in outcomes for obese women versus control in an “alongside midwifery unit” despite national guidelines recommending obese women labour in a unit led by consultant obstetricians.
[64] Dr. Sandwith’s review of the research literature is enough to satisfy me, on this application, that it is not reasonably certain that at the hearing, Dr. Mentz will prove RMH’s BMI cutoff is reasonably necessary to ensure patient safety. On its own, this might not be enough to convince me that the part of the complaint about the BMI cutoff ought to go forward against Dr. Mentz. There appears to be no dispute that he is an FHA contractor. There is little if any evidence that he created or was the driving force behind RMH’s BMI cutoff.
[65] However, Dr. Mentz discretion in how the cutoff is applied remains unclear on the evidence before me. The Higher Level of Care Policy defines “higher level of care” and “life, limb and threatened organ.” Both definitions say, “final determination is at the discretion of the physician involved in the transfer”. Dr. Mentz argues that the policy he followed was a regional FHA policy, and the Higher Level of Care Policy is the only one he refers to in his submissions. Accordingly, it is not clear to me that Dr. Mentz is reasonably certain to prove he had no discretion to consider whether there was a way Ms. Lindberg could deliver safely at RMH given the policy leaves final determination to the discretion of the physician involved in the transfer.
[66] There is a procedural and substantive element to the duty to accommodate: Gill v. BC Ministry of Labour and another, 2020 BCHRT 103 at para. 73; University of British Columbia v. Kelly, 2016 BCCA 271 at paras. 42-43. If, as the Higher Level of Care Policy says, the final determination was at Dr. Mentz’s discretion, he will need to prove that he fulfilled that duty by considering whether, in Ms. Lindberg’s specific circumstances, he could have recommended she be permitted to give birth at RMH while meeting the hospital’s safety goals.
[67] Dr. Mentz relies exclusively on the policy and its rationale and has not provided evidence about whether he considered Ms. Lindberg’s circumstances beyond her BMI when advising her she was precluded from delivering at RMH. On this basis, I cannot resolve whether Dr. Mentz is reasonably certain to prove his conduct was justified pursuant to Grismer at this stage of the proceedings as the details of his discretion to recommend she be permitted to deliver at RMH under the Higher Level of Care Policy remains unclear.
[68] A hearing on the merits is required to make findings of fact about what the policy or policies were at RMH that Dr. Mentz was applying, whether he was required to refer Ms. Lindberg elsewhere pursuant to those policies, and, if he wasn’t, whether he could not have recommended she deliver at RMH without incurring undue hardship. I can only base this decision on the materials filed by the parties and not on speculation about what evidence may be filed at the hearing: Chan, 2013 BCSC 942 at para. 77. While it may be that Dr. Mentz proves his conduct was justified at a hearing, I am unable to say he is reasonably certain to so on the material before me.
[69] I am not finding that Ms. Lindberg will succeed in her case at a hearing; I am finding that on the evidence before me, the complaint rises above the level of speculation and conjecture, and a hearing is required to decide on the merits of the complaint.
IV CONCLUSION
[70] The application is dismissed. The complaint against Dr. Mentz and FHA will proceed to a hearing.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal