B.C. Human Rights Tribunal Utterly Disconnected From Reality… Again.

In an astounding display of the bureaucratic disconnect from reality B.C. Human Rights Tribunal member Enid Marion awarded $475,000 in damages, including a whopping $75,000 specifically for “injury to dignity, feelings and self-respect“, to University of British Columbia (UBC) medical student Carl Kelly.

This is ludicrous. It’s beyond ludicrous, actually. It’s utterly asinine.

Carl Kelly, as specified in the ruling Kelly v. UBC (No. 3), 2012 BCHRT 32, has

Attention Deficit Hyperactivity Disorder – Inattentive Type (“ADHD”). He also has a Non-Verbal Learning Disability (“NVLD”) and has, at times, suffered from anxiety and depression.

On August 29, 2007 UBC determined Carl Kelly was not suited to being a doctor and terminated his enrollment in its medical program.

Carl Kelly immediately filed a human rights complaint, since a “life-long desire” to be a doctor is a “human right’, right? Well, this is British Columbia and as B.C. Human Rights Tribunal member Enid Marion made crystal clear in her ruling,

“I have considered that I can accept some, all or none of the evidence of a witness.”

In other words Enid Marion can decide anything she wants for any reason and discount any evidence before her, for any reason.

Nice… but let me get back to the issue before us.

Not every person is suited to the career of their choosing. That may be sad, but that’s life.

If you unable to learn the material required and fail to perform adequately in your medical rotations even after accommodations are made specifically for you, it is reasonable to draw the conclusion that you are “unsuitable” to be a doctor.

That sucks when your “life-long passion” is to be a doctor, but that’s life unless, of course, you file a human rights complaint in British Columbia. Then the harsh realities of life mean very little.

The facts of this case include the following:

Dr. Carl Kelly entered the FM Program in November 2005 in the rural program. His start was delayed to accord with his graduation from the Undergraduate Medical Program at the University of Alberta (“U of A”).

Dr. Kelly was dismissed from the FM Program on the basis of unsuitability in August 2007 having only partially completed PGY 1 (Post Graduate Year 1).

Dr. Kelly’s first rotation was a paediatrics rotation in Kelowna. This rotation usually consists of two blocks (each block being 4 weeks). Dr. Kelly was only scheduled for six and one half weeks of training in this rotation due to his late start in the program. His performance was rated “fail.”

Carl Kelly, after almost 2 full years, failed to complete his first year of training, including his first paediatrics rotation, albeit a shortened rotation due to his own late start. In the words of the ruling, he failed.

The word unsuitable could easily be used in place of failed, won’t you agree?

Dr. Kelly was then scheduled for two blocks of family medicine at the UBC clinic in Vancouver. This rotation was extended to almost five blocks.

Extending Carl Kelly’s family medicine rotation over twice its normal duration seems like one heck of an accommodation to me. Moving him from his assigned rural training location of Kelowna to Vancouver seems like another. These accommodations tell me UBC wanted Carl Kelly to succeed and made great strides to see that he did, even though his performance continued to be poor.

In January 2006 Dr. Kelly’s preceptors raised concerns about his performance which were discussed at a Site Directors meeting.

Around this time, Dr. Kelly’s Director of his Residency Program, Dr. Carl Whiteside, advised Dr. Kelly that he had not passed his first rotation in paediatrics at Kelowna General Hospital. Dr. Whiteside discussed with Dr. Kelly undertaking his training in Vancouver so that he could access a more structured learning environment.

Dr. Whiteside suggested Dr. Kelly see Dr. Mike Myers, a psychiatrist with a speciality treating physicians. Finally, Dr. Whiteside requested an assessment of any difficulties Dr. Kelly experienced during medical school so that accommodation of Dr. Kelly could be considered in the FM Program. Dr. Kelly gave his consent for Dr. Robert Drebit, from the U of A, to release this information to the FM Program.

By March 2006 the Site Directors had determined that Dr. Kelly was not suitable for continued training in the rural program. This decision was based on learning styles observed by the rural preceptors in Kelowna and by preceptors in the UBC Clinic. At a meeting of the urban Site Directors on March 15, 2006 the Site directors considered these observations. The Site Directors determined:

a. that Dr. Kelly would remediate his paediatrics rotation;
b. that Dr. Kelly’s new site Director, Dr. Betty Calam would ask Dr. Garey Mazowita to act as a mentor for Dr. Kelly;
c. that Dr. Kelly would be attached to the incoming PGY 1 group for St. Paul’s Hospital as of July 1, 2006, if he successfully remediated his paediatric rotation;
d. that Dr. Kelly could return to the UBC Health Clinic for his family medicine rotation in his PGY2 year; and
e. that Dr. Kelly would follow a “vertical” structure for rotations, using both St. Paul’s and the Greater Vancouver programs, rather than the horizontal model at St. Paul’s.

On April 5, 2006 Dr. Kernahan met with Dr. Kelly and Dr. Newton, Clinic Director at the UBC Health Clinic, to discuss certain issues that had arisen regarding his conduct during the rotation. These included a prescription he had signed and complaints from a member of the faculty, Dr. Donlevy, regarding Dr. Kelly’s on call conduct. During that meeting Dr. Kernahan formed a concern regarding Dr. Kelly’s behaviour when Dr. Kelly left the room saying he was “going to be sick”.

Dr. Kelly was advised that he had still not passed the UBC Health Clinic rotation and that his rotation at the UBC Health Clinic would be further extended before he would begin his remedial rotation. He was also advised that he could provide his response to the two incidents discussed.

On April 27, 2006, Dr. Kernahan spoke with Dr. Simi Khangura regarding the structure of Dr. Kelly’s remediation. She advised that Dr. Kelly had not been functioning at the level of PGY 1 Family Medicine Resident in his previous rotation. Drs. Kernahan and Khangura discussed an evaluation model of providing daily feedback forms to Dr. Kelly at the end of each shift so that Dr. Kelly would get immediate feedback from each of his supervisors daily.

He failed his initial paediatrics rotation at UBC’s Medical School. After almost 5 blocks of family medicine rotation Carl Kelly still hadn’t passed that rotation. Even after UBC assigned him a mentor and created a special structure within the medical program designed specifically to fit his needs Carl Kelly continued to “under-perform”.

UBC continued to make changes to the program specifically to accommodate Carl Kelly.

On July 26, 2006, Dr. Calam spoke with Dr. Myers regarding a consultant for neuro-psychological testing for Dr. Kelly.

Also on July 26, 2006, Dr. Calam wrote to Dr. Myers and asked for an opinion outlining any restrictions for health reasons that Dr. Myers thought might be necessary for Dr. Kelly for his next rotation, scheduled at CTU at SPH for July 31, 2006, for four weeks. Dr. Myers provided same that day advising that, “Dr. Kelly is at risk for irritability, inner frustration and disorganization when he gets especially busy or tired.

On July 28, 2006, Dr. Kernahan concluded that Dr. Kason’s evaluation did not amount to a pass.

From July 31 to August 27, 2006, Dr. Kelly undertook a rotation in CTU – Internal Medicine (General). Dr. Kelly’s performance was assessed as a “pass”.

From August 28, 2006 to September 24, 2006 Dr. Kelly undertook a rotation in emergency medicine and was assessed as “pass”.

On September 14, 2006 Dr. Calam received a complaint from some of the residents in Dr. Kelly’s peer group about an e-mail he had circulated the previous month. Dr. Calam suggested that Dr. Kelly be relieved from his current rotation pending investigation.

As a result of his poor progress in the medical program and the email message UBC’s doctoral supervisors placed Carl Kelly on “educational leave”.

During this time of educational leave Carl Kelly went to his union to complain about his status and Ms. Zoe Towle, a representative of PAR-BC, intervened on his behalf.

In March 2007 Ms. Towle advised that on Dr. Kelly’s behalf PAR-BC would seek a second opinion from Dr. Margaret Weiss, a psychiatrist specializing in adult ADHD, to obtain information regarding potential accommodation of his learning disabilities and of his suitability for residency training.

Clearly Mr. Kelly felt UBC failed to accommodate his learning disabilities, even though they already made numerous, repeated and ongoing concessions for him. Due to his performance during his medical rotations, or more specifically his lack of performance during them, Carl Kelly was dismissed from UBC’s medical program.

In August 2007 the Resident Performance Subcommittee (“RPS”) of the PGEC met to consider Dr. Kelly’s suitability for continued training in the FM Program. On or about August 23, 2007 the PGEC recommended that the Complainant be terminated from the FM Program on the basis of unsuitability.

While it is sad and unfortunate, not everyone is cut out for the job of their dreams. That is one of the harsh realities of life here on Planet Earth.

Carl Kelly’s “life-long passion” is to be a doctor. Passion is great, but passion alone does not automatically qualify one for a job. You must also have skills, knowledge and aptitude, among other prerequisites.

I, for example, have a lifelong passion to be an astronaut and walk on the surface of Mars. Does that mean I have the aptitude, skills and physical attributes required to be an astronaut? Does that mean I’m entitled to a massive payout when I fail to meet those qualifications?

Absolutely not.

Unless, perhaps, I file a human rights complaint in BC and am fortunate enough to land Enid Marion as my Tribunal member! Then the odds are surely in my favour!

You see, Enid Marion of the BC Human Rights Commission felt UBC failed Carl Kelly and discriminated against him personally.

It’s hogwash, but Enid Marion gets to make that decision, not me.   I am left with the sole option of praying UBC appeals this absurd financial award.

Justifying this absurd monetary award for which every British Columbia Taxpayer will now pay, Enid Marion said this:

[101] My reasons for this are as follows:

b) I do not accept UBC’s argument that it is not principled to conclude that a person with a life-long passion suffers more than someone without such a passion when they experience discrimination. In this case, it is relevant and principled to consider that Dr. Kelly was pursuing an almost life-long desire to become a physician and that the loss of that opportunity had a serious and detrimental impact on him, particularly within the context of his family dynamics.

c) Dr. Kelly suffered deep humiliation and embarrassment as a result of the discrimination, which was ongoing for a significant period of time. He experienced symptoms of depression, including a lack of interest in life, trouble sleeping, and other health-related problems. I accept his evidence about the depth and continuing nature of those symptoms, including his thoughts of “ending it”, from the date of his termination in 2007 until his reinstatement to the Program in 2013, including his loss of self-identity and self-esteem, his feelings of worthlessness, and his despair and uncertainty about his future.

d) Dr. Kelly experienced further embarrassment when applying for jobs and explaining why, with his educational background, he was not pursuing his medical career.

e) Dr. Kelly lost his source of income and felt compelled to move back in with his parents, losing his independence.

[102] I find that the particular circumstances of this case are unique and serious. Unlike Gichuru, Dr. Kelly was unable to complete his training and enter practice as a physician as a result of the discrimination.

[103] In all the circumstances, I am persuaded that an award of $75,000 is reasonably proportionate to the injury to dignity, feelings and self-respect suffered by Dr. Kelly. I order UBC to pay to Dr. Kelly the sum of $75,000 damages for injury to dignity, feelings and self-respect.

I’m sure Carl Kelly is a very nice man. That does not bestow upon him the right to the career of his choosing. Like the rest of us, he must find the career he is best suited for, even if that ultimately is not one for which he has a “life-long passion”.

Can a person with ADHD be a doctor? Absolutely. As evidence of experts quoted in this ruling makes clear, such people are successful doctors, lawyers and entrepreneurs, among other careers.

Does that mean that every person with ADHD can be a doctor.

Of course not.

“Life-long passion” does not equal aptitude, ability or skill. Such is the harsh reality of life, unless you file a human rights complaint in British Columbia.

UBC made numerous and ongoing attempts to accommodate Carl Kelly’s ADHD and learning disabilities before terminating him from its medical program. When those additional efforts did not result in Carl Kelly passing his extended medical rotations UBC is held at fault by the BC Human Rights Tribunal, not Carl Kelly.

He was first reinstated to UBC’s medical program and then rewarded for failing to pass his medical rotations to the tune of $475,000.

That is absurd.

That is the BC Human Rights Commission.


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