Supreme Court tells psychologists to try again

Nova Scotia Board of Examiners in Psychology effectively denied itself the ability to do the right thing for Nova Scotian kids who need help

The board that licenses psychologists to practice in Nova Scotia got schooled on how to apply the law that governs their profession and rebuked for being unfair by the Nova Scotia Supreme Court this week.

Justice Timothy Gabriel set aside the Nova Scotia Board of Examiners in Psychology (NSBEP) decision to deny registration to Dr. Pamela Yates, and he told the board to try again, this time properly applying the Psychologists Act, while paying more heed to procedural fairness than it mustered last time around.

The 62-page decision released Thursday lays out in pain-staking legal detail where the board and its internal review committee erred, and how former NSBEP registrar Allan Wilson’s decisions resulted in a process that was not fair to Dr. Yates.

Pamela Yates is a native Nova Scotian who earned a doctorate in psychology and practiced in Saskatchewan before climbing the organizational ladder to become National Director for rehabilitation, social and educational programs at the Correctional Services of Canada.

She’s internationally recognized for work in forensic psychology and returned to Nova Scotia to take up the job as clinical program lead for the IWK’s Youth Forensic Services, a position she lost because the NSBEP refused her registration, which is a requirement to practice in Nova Scotia.

Justice Gabriel found that the board failed to exercise its statutory obligation, which provides the board discretion in consideration of applications, and instead rigidly applied its procedures and policies.

“With the procedure the board has adopted, discretion to licence someone ... disappears or is marginalized almost to the point of non-existence,” the judge wrote, adding that the board “cannot nullify or displace statutory discretion by adopting policy or procedures which have that effect.”

His decision, in effect, instructed the board to use its statutory discretion in considering Dr. Yates’ application and, noting that the purpose of professional self-regulation is public protection, the ruling states:

“The protection of the public is not solely achieved by the powers of exclusion. It is also served by the permissive power to consider the inclusion of individuals, (who) may be able to assist in protecting the public by the delivery of competent, professional services, notwithstanding their technical inability to meet all the requirements.”

The IWK is currently looking for six psychologists, and kids in Nova Scotia can wait months for a psychological assessment. Dr. Yates has been fighting the NSBEP’s decision for more than two years.

The court also found the NSBEP was not fair to Dr. Yates when considering her application.

Justice Gabriel noted that the board and its internal review committee failed to consider all materials submitted by Dr. Yates, partly because its former registrar, Dr. Wilson, decided unilaterally that those materials were not relevant to the criteria being used to judge her application.

Those materials established Dr. Yates as a leading forensic psychologist and included her extensive publications and references from prominent members of the profession.

When the stakes are high, as they are in this case, the court said the processes used to ensure fairness “need to be commensurate with this level of importance.” The standard of procedural fairness owed to Dr. Yates was not met by the board, which was instructed to reconsider her application including all relevant material.

The Psychologists Act explicitly provides the board with discretionary powers so that it can make judgements based on the merits of individual cases. But in its strict application of a set of pre-determined policies, the board effectively denied itself the ability to do the right thing for Nova Scotian kids who need help.

Obviously, Dr. Yates would not have accepted the IWK job and left her senior position with Corrections Canada had she anticipated running into a licensing quagmire. She had checked with the NSBEP before taking the IWK job and was given assurances that, with her qualifications, registration shouldn’t be an issue.

The board got it right with that informal assurance, only to get it very wrong when it applied its formal processes and tied itself into a Gordian knot of rules and policies that, in this case, ran counter to the provision of quality psychological care.

Experts note that successful treatment of kids with mental, behavioural and emotional problems increases dramatically with early intervention. Those and other considerations were secondary to the rules for registration applied by the NSBEP.

Let’s hope they do better now that the court has given them the chance to correct their mistake.

“The IWK is currently looking for six psychologists, and kids in Nova Scotia can wait months for a psychological assessment.”