Administrative Review – Medical Employment Limitations: Two Decisions for the Price of One!

Administrative Review – Medical Employment Limitations: Two Decisions for the Price of One!

Introduction

One of the most problematic and poorly understood types of Administrative Review (AR) are ‘Administrative Review – Medical Employment Limitations’, typically referred to by the acronym ‘AR-MEL’.  Superficially, these Administrative Reviews are much like any other Administrative Review conducted under Defence Administrative Order and Directive (DAOD) 5019-2.

Except that they aren’t.

And, consequently, they are often even less fair than other types of Administrative Review.  Considering my recent criticisms of Administrative Review pertaining to compulsory release, that is a significant statement.

There are two principal reasons why they tend to be ‘less fair’: First, they are actually predicated upon two distinct decisions, by two distinct decision-makers.  However, many Canadian Forces (CF) members may not understand that subtle distinction until it is too late.  Second, the first of these two distinct decisions is typically made with little or no meaningful participation by the affected CF member.  Once the decision is made, it becomes an immutably entrenched decision, even though it is not made in a procedurally fair manner and, at times, can be substantively unreasonable.

AR-MEL bear many of the same hallmarks as many other Administrative Reviews.  They are conducted by Director Military Careers Administration (DMCA).  They often involve the potential (or, for cynical observers, the foregone conclusion) of compulsory release from the CF under a compulsory release item in the table to article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).  The respondent (the CF member who is the subject of the Administrative Review) will be informed of the process by way of a message issued by DMCA.  A ‘disclosure package’ will be generated and provided to the respondent, who will be given 15 working days (or 30 calendar days for a member of the Reserve Force on part time service) to offer representations.

Thus, an AR-MEL bears much similarity to an Administrative Review initiated for an alleged conduct or performance deficiency.

The principal difference is that an AR-MEL relies upon an earlier decision by a different decision-maker, which is invariably determinative of the decision made by DMCA.  And this earlier decision does not have even the hallmarks of procedural fairness that are generally associated with Administrative Review.

Granted, when an Administrative Review is initiated for conduct or performance deficiencies, there may well have been earlier statutory decisions that are relevant to the subsequent Administrative Review.  Previous articles in this Blog series have touched upon many of those.  A respondent to a conduct- or performance-related Administrative Review may have been the subject of decisions under the Code of Service Discipline, under the CF Harassment Prevention and Resolution policy (DAOD 5012-0), or under the CF policy for administrative remedial measures (DAOD 5019-4).  As I have indicated in those same articles, in more egregious cases, CF members have not be subject to prior determinations under the proper or expected disciplinary or administrative processes, which tends to contravene the principle of legitimate expectation and can therefore lead to an abuse of process.

AR-MEL stand in marked contrast.  When an AR-MEL is initiated by DMCA, there will invariably have been a prior determination by the Director Medical Policy (D Med Pol) or by a medical officer working within Medical Policy and Standards (Med Pol & Stds), such as the Senior Staff Officer, Medical Policy & Standards (SSO Med Pol & Stds).  The specific decision made by this statutory decision-maker will relate to Medical Employment Limitations (MEL) that are imposed on the CF member, which will then form part of, and likely precipitate a change to, the CF member’s Permanent Medical Category (PCAT).

Thus, the respondent to an AR-MEL will be the subject of two separate, yet related, decisions by a statutory decision-maker: a decision by D Med Pol concerning the CF member’s MEL (if any) and eventual PCAT, and the subsequent decision by DMCA arising from the AR-MEL.  The problem faced by many CF members, however, is that they are often unaware of the full nature of this dual decision-making process and typically only challenge the decision at, or after, the AR-MEL stage or the decision-making process.  This is understandable, as the decision-making process regarding the MEL and PCAT is much more opaque to a CF member, and there is no formal mechanism by which the CF member may offer informed representations to the decision-maker (D Med Pol) or seek a second opinion regarding the medical foundation for D Med Pol’s decision.

Consequently, by the time that the CF member is in a position to offer informed representations to a decision-maker – following the ‘disclosure’ stage of the AR-MEL – the CF member is not in a position to offer informed representations to a decision-maker who can actually make a relevant determination on key factors considered within the AR-MEL.  DMCA will not second-guess the MEL or PCAT assigned by D Med Pol.  DMCA’s decision-making is thus significantly fettered.

Technically, one of the decisions that faces DMCA in the AR-MEL is the decision whether the CF member can continue to meet the principle of ‘Universality of Service’ (U of S).  In other words: Can the CF member perform all the duties and functions expected of all members of the CF, regardless of their specific military occupation?  But in circumstances in which D Med Pol has already determined that a CF member cannot perform certain tasks, DMCA isn’t really exercising any discretionary decision-making.

For example, if D Med Pol imposes MEL asserting that “MBdr Lanyard cannot handle weapons or explosives…” there really isn’t any discretion that DMCA could exercise that would permit MBdr Lanyard to remain in the CF.  This conclusory statement by D Med Pol – frankly, a rather thinly veiled conclusion that MBdr Lanyard suffers from a mental health disorder where there is a risk of self-harm or harm to others – limits the courses of action open to DMCA.  While there may be limited scope to permit MBdr Lanyard to remain in the CF for a period of transition to civilian life, there is no course of action open to DMCA that does not lead to MBdr Lanyard’s compulsory release for medical reasons.

Therefore, the uncomfortable reality of AR-MEL is that DMCA is not the key decision-maker; D Med Pol is.  And while DMCA follows the imperfect decision-making process outlined in DAOD 5019-2, D Med Pol’s decision-making process is much less transparent and fair.  The consequence is that CF personnel who wish to challenge a compulsory release due to restrictive MEL or PCAT during an AR-MEL are essentially embarking on a ‘forlorn hope’.  And unlike the forlorn hope that arose from Director of Military Prosecution’s abortive attempt to prosecute the Chief Military Judge, this forlon hope is not of the CF member’s own making.  It is thrust upon the CF member by decision-makers who continue to maintain a disingenuous conceptualization and approach to the decision-making process.

And it is this injustice that we will explore in the present Blog article.

 

Scope

Having already provided a description of the general problem in the introduction, I propose to address the following issues arising out of AR-MEL:

1. When does an AR-MEL typically arise?
2. How are MEL and PCAT decisions typically made?
3. How does the nature of MEL and PCAT decisions impact the decision by DMCA in an AR-MEL?
4. What are the standards and content of these decisions?
5. What are some of the challenges encountered by CF members when responding to AR-MEL processes?
6. What can be done to improve the process?

 

Discussion

Administrative Review – Medical Employment Limitation

An AR-MEL will typically arise when D Med Pol imposes MEL on a CF member as part of a change of medical category.  An AR-MEL will typically only be triggered by a change of PCAT.  A temporary medical category (TCAT), as the name implies, is temporary and will not necessitate an AR-MEL.  The purpose of the AR-MEL is so that an appropriate CF statutory decision-maker (typically DMCA) can determine whether a CF member can continue to meet the minimum medical standards of the CF member’s Military Occupation Specification (MOS) or CF service generally.  The latter issue will turn on whether the CF member can meet the physical and medical requirements of Universality of Service’, often referred to by the acronym ‘U of S’.  CF policy on U of S is predicated largely on section 33 of the National Defence Act (NDA) and is amplified by DAOD 5023-0 and 5023-1.

DMCA uses the same general process that is used for all Administrative Review, which is set out in DAOD 5019-2.  However, unlike conduct- and performance-related Administrative Review, DMCA does not rely solely or principally on documentation offered by the CF Member’s commanding officer (CO) or other representative of the chain of command.  Instead, where an AR-MEL is conducted, the information will come principally from CF Health Services (CF H Svcs), principally D Med Pol and Med Pol & Stds.

This information will generally consist of a DND 4345-E Medical Employment Limitations (a 2-page standardized form), possibly (but not always) accompanied by additional, limited, documentation pertaining to the MEL.  The ‘medical disclosure package’ may also contain one or more notes from the CF member’s medical file.

There appears to have been a change in process by D Med Pol without a change to DAOD 5019-2.  Part 6 of DAOD 5019-2 refers to disclosure of a CF 2088 by D Med Pol.  The CF 2088 is/was a CF form entitled ‘Notification of Change of Medical Employment Limitations (MEL)’ and was generated to identify the change of MEL and the resulting change to the CF member’s PCAT.  However, based upon my recent practice-related experience, it appears that the CF 2088 has been replaced by the DND-4345-E ‘Medical Employment Limitations for Administrative Review (AR/MEL)’.  However, DAOD 5019-2 makes no mention of form DND 4345-E.  It may be that a CF 2088 is still used to generate changes to MEL and PCAT; however, the form used within the AR-MEL process is the DND 4345-E.  It appears that DAOD 5019-2 is due for amendment.

When this information is disclosed to the CF member as part of the AR-MEL process, the ‘disclosure package’ will have similar elements to conduct- and performance-related Administrative Review disclosure.  There will be a cover letter, with one or more annexes.  These annexes will include a ‘response form’ for the CF member to indicate whether he or she will offer representations.  There will be a portion entitled “Legal and Regulatory Context” which will tend to present a boiler-plate description of the applicable law and policy (which tends to stress the policy instruments, and contains very little, if any, discussion of applicable law).  This will be followed by a synopsis organized under headings similar to other Administrative Review: General information; Reason for Submission; Summary of facts; Analysis; and, Findings (or Conclusion or Recommendation).

As with other Administrative Review, the information conveyed in the AR-MEL synopsis is not particularly profound.  Where the sole issue in the AR-MEL is whether the CF member still meets ‘U of S’, analysis is often limited to one or two paragraphs.  This is not surprising.  In light of the conclusory nature of boiler-plate ‘analysis’ in other Administrative Reviews, such ‘minimalist’ approach to AR-MEL is not unexpected, even though it remains problematic.

In my experience, the contents of AR-MEL are much more limited than conduct- or performance-related Administrative Review.  For example, an Administrative Review initiated for allegations of sexual misconduct can often run to dozens, if not hundreds, of pages.  An Administrative Review in which the chain of command has actually performed its duties and functions properly (admittedly, not nearly as common an occurrence as I would prefer) will likely include the paperwork relating to multiple, and graduated, use of remedial measures under DAOD 5019-4.  In an ideal world, it will include copies of the Initial Counselling (IC), Recorded Warnings (RW), and Counselling and Probation (C&P) that were employed to assist the CF member in overcoming his or her deficiencies.  After all, that is precisely what DAOD 5019-4 states is the policy objective for remedial measures.  This paperwork will include not only the forms denoting the IC, RW, and C&P, but also notes or memos recording the monitoring periods for these remedial measures, and the relevant outcomes.  There may also be documents relating to the conduct of harassment investigations or Code of Service Discipline proceedings.

Assisting CF members in overcoming their deficiencies – aka ‘doing your job as a leader’ – can tend to generate a fair bit of paperwork.  Equally, for CF leaders who are less interested in actually assisting their subordinates, and are simply using remedial measures as a means to ‘paper the file’ with the ultimate objective of seeking the CF member’s compulsory release, there will be a fair bit of paperwork generated for the purposes of the Administrative Review.  Whether a CF leader and decision-maker does his or her job properly in terms of complying with the spirit and intent of DAOD 5019-4 or the Code of Service Discipline, there is generally one unavoidable truth for Administrative Review for conduct or performance deficiencies: if a CO is going to recommend the compulsory release of a CF member for such deficiencies, the CO will have to ‘… show his/her work …’ through some form of documentation, regardless of whether it constitutes clear, cogent, and convincing evidence.

And that is because there has to be sufficient evidence for DMCA staff to apply the oft-cited, and often misunderstood, civil burden of proof.  If the eventual DMCA decision is to withstand further scrutiny under the CF grievance process and, eventually, after two or three (or more) years, judicial review before the Federal Court, DMCA staff will want to have some impressive-looking documentation.  As I have mentioned previously in this series, whether an Administrative Review offers a meaningful opportunity to evaluate and weigh previously untested evidence is another issue entirely.

In contrast, AR-MEL tend to be markedly less voluminous.  Many of these disclosure packages are no more than 20 to 30 pages.  And, remember, this includes:

• a cover letter of 4 or 5 pages, which describes the Administrative Review process;
• the respondent’s ‘acknowledgement form’;
• a 3- to 5-page annex describing the ‘Legal and Regulatory Framework’;
• a synopsis (that is often no more than 2 to 4 pages);
• a copy of the AR-MEL ‘Advisory Message’ that announced the AR-MEL (which is bilingual, and often 5 or 6 pages in length);
• the DND-4345-E (2 pages) and any accompanying medical records; and,
• the CF members Military Personnel Record Resume (MPRR).

Thus, not only is the ‘disclosure package’ minimal, of the 20 to 30 pages disclosed, often less than 25% of the pages conveys any meaningful information.

So, why is there such a marked difference between an AR-MEL and an Administrative Review for conduct- or performance-related deficiencies?

I suggest that it is because the true determinative decision is made by D Med Pol before the AR-MEL is even initiated.

 

MEL and PCAT Decision-Making by D Med Pol

The origins of an AR-MEL lie with the dual, and sometimes conflicting, role of CF H Svcs.  The CF maintains a health services infrastructure to maintain the health of CF personnel.  It would be markedly difficult for the CF to fulfil its roles if it could not maintain the health of its personnel.  Consequently, the CF maintains a formation of dedicated health care professionals to serve the physical and mental health care needs of CF personnel.

But that is not all that CF H Svcs does.  There is also a function that is distinct from the provision of health care.  CF H Svcs also maintains a directorate that, among other functions, reviews the medical status of individual members of the CF to determine whether CF members remain medically fit for their MOS and for CF service generally.  That directorate, Med Pol & Stds, is headed D Med Pol.  And the specific function involves assigning MEL and PCAT.

And make no mistake: these functions do not constitute the provision of medical services.  D Med Pol is not offering a diagnosis to a CF member to assist the CF member in adapting to, or overcoming, an injury.  That role falls to individual health care practitioners, such as a Primary Care Physician.   D Med Pol is making a statutory decision, under authority granted by the National Defence Act (NDA).  D Med Pol may be doing so based upon medical knowledge or purported expertise, but D Med Pol is still making a statutory decision.  Moreover, D Med Pol asserts a monopoly on making such decisions.  And these decisions often significantly affect the rights, interests, and privileges of CF personnel.

Consequently, one might assume that such decisions would have the type of procedural safeguards that would be attracted to such significant decisions.

That assumption would be incorrect.

The types and nature of the decisions relating to medical categories and limitations are as varied as the persons who comprise the CF.  This article does not, and could not, present a detailed analysis of all of the possible sequences of events or factors that might lead to career-limiting decisions predicated upon medical diagnoses.  However, there are general processes that are followed where determinations are made concerning an individual CF member’s MEL.  Generally, the sequence can be described as follows:

1. A CF member is diagnosed by his or her primary care physician.  This may lead to a referral to a specialist (either a uniformed CF health care professional or a civilian paid by the Crown to provide a diagnosis).  Arguably, where there is a likelihood that a career-limiting decision will arise, it is not uncommon for a CF patient to have been referred to a specialist.
2. Once the diagnosis is completed, the CF member will likely meet with his or her primary care physician to discuss the diagnosis (although there is no procedural guarantee that this will occur).  Certainly, the CF member will not, as a matter of course, receive detailed disclosure of all relevant documentation collated as a result of the referrals directed by CF medical practitioners.
3. Where the diagnosis appears to justify assigning MEL or changing a CF member’s PCAT, the recommendation will be initiated on a form.  According to DAOD 5019-2, this will be a CF 2088 ; however, in recent practice, this appears to have been replaced by the DND-4345-E.
4. This form is forwarded to the Base Surgeon (B Surg), the senior medical officer for the relevant Canadian Forces Base.  The B Surg will make a recommendation regarding the MEL and/or change of PCAT.  Typically, this will be a very brief annotation that would signal concurrence with the diagnosis.  This is what may be termed a ‘secretarial process’.  The B Surg does not meet with the patient and may not actually meet with the primary care physician.  The B Surg will presumably base his or her determination on a review of the relevant contents of the CF member’s medical file.  The B Surg’s comment and recommendation is not disclosed to the affected CF member at that time.
5. The file is then forwarded to D Med Pol where a medical officer will conduct a secretarial review of the file.  D Med Pol does not meet with the CF member.  D Med Pol may discuss the file with the relevant B Surg or the specialist(s) who diagnosed the CF member, but is not obliged to do so.  There is no evidence to suggest that such meetings or discussions are typically pursued.  D Med Pol – or, perhaps more accurately, a medical officer acting on behalf of D Med Pol, then approves the MEL and/or change of PCAT (or not).  Again, none of this is disclosed to the CF member at that time.
6. After D Med Pol makes the statutory decision altering a CF member’s MEL and PCAT, the DND 4345-E is then sent to the CF member’s CO, who is permitted to make comments (Part 5) and who then communicates the form to the CF Member, who is briefed on the MEL and PCAT.  Part 6 of the DND 4345-E is the portion of the form on which the CF member indicates her acknowledgement of the MEL/PCAT change.  Typically, this briefing will involve only the DND 4345-E (formerly the CF 2088).  It does not appear that any of the relevant medical records (e.g. specialist reports, correspondence from various physicians involved in the diagnosis, charts) are disclosed to the affected CF member at this point.  Nor, frankly would the CO be in a position to discuss those records with the CF member in a meaningful manner.  The CO certainly has no authority to alter the MEL or PCAT.  Essentially, this step in the process is simply one of the CO informing the CF member of the decision made by D Med Pol, and the CF member signing the bottom of the form to acknowledge that he or she has been informed.  This is the first point in the process where anything of substance is disclosed to the CF member concerning assignment of MEL or a change of PCAT.
7. If the MEL or change in PCAT might trigger career action (e.g. an obligatory change of MOS or a compulsory release for medical reasons), the DND 4345-E and accompanying documents are forwarded to DMCA by D Med Pol.  DMCA 3, the office responsible for AR-MEL, will then initiate an Administrative Review.

In the process described above, the CF member faces potentially career-limiting decisions by D Med Pol; however, the CF member is not offered a meaningful opportunity to make informed representations to the relevant decision-maker.  While the CF member will meet with their primary care physician in this process, and may also meet with a specialist, these are not opportunities for such representations.  A meeting with a specialist will principally be for diagnostic purposes.  The specialist does not determine the MEL or PCAT.  Similarly, the CF member may meet with his or her primary care physician, but that is an opportunity to discuss medical care.  The primary care physician might recommend MEL or PCAT changes; however, the primary care physician is not the decision-maker and D Med Pol is not bound by any recommendation by the primary care physician or the B Surg.  Nor is there anything means for the CF member to present his or her own representations in parallel to any recommendations by the primary care physician or the B Surg.

What’s more, the decisions relating to MEL are typically conclusory assertions.  These are communicated in two parts on the DND 4345-E: Part 3 – Medical Statement, and Part 4 – Medical employment limitations.

Let’s examine this part of the process in the context of a CF member who has been diagnosed with a contentious mental health injury.  Under Part 3, D Med Pol might state:

Member has been assigned employment limitations because of a chronic medical condition that is of HIGH RISK of not complying with Universality of Service.

That is a verbatim quote from an actual DND 4345-E.  The use of upper case letters to express the term “HIGH RISK” is typical of such statements from D Med Pol.  Presumably, by identifying the risk level in this manner, D Med Pol is stressing the significance of the risk.  Perhaps D Med Pol is adopting methodology that is often seen in social media, in which people use UPPER CASE TEXT to stress their beliefs.

Certainly, there is no actual analysis offered under Part 3.  There are no reasons given for the conclusion.  It is precisely what it purports to be: a statement by a medical authority.  More to the point, it is a conclusory statement.

Then, under Part 4, D Med Pol will typically assert one or more of the following MEL:

• Member unable to safely handle and effectively operate a personal weapon;
• Member unfit driving military vehicles; or
• Member requires specialized treatment more frequently than every 6 months.

And bear in mind, the CF member may face more than one medical issue, even if only one (i.e. the mental health injury) is a significant issue with potentially career-limiting effects.  For example, the CF member may require corrective lenses (eye glasses).  The CF Member may have allergies.  These may give rise to other MEL that are not necessarily career-limiting.

As a result, Part 4 of the DND 4345-E might also include less significant assertions:

• Member requires corrective lenses when driving
• Member requires regular prescription medication

However, when the various MEL are listed, there is no direct correlation communicated between the MEL listed at Part 4 and the medical statements under Part 3.  In some cases, the correlation may be obvious.  But that may not always be the case.

What is key is that these are all simply assertions.  There is no written analysis provided to the CF member, either when the MEL/PCAT change documentation is generated, or during the AR/MEL.  Such ‘analysis’ may arise when, and if, the CF member challenges these bald conclusions with a grievance; however, within the context of the initial decision-making mechanism, no analysis is offered and reasons given are conclusory.

The CF member is presented with a fait accompli, based upon conclusory assertions by D Med Pol.  There is no opportunity for the CF member to make any meaningful representations to the statutory decision-maker before the decision is made.  In other words, other than being the relevant patient, the CF member is afforded no meaningful participatory role or rights in a process that is designed to generate a statutory decision that affects that CF member’s rights, interests, and privileges in a significant fashion.

The lack of procedural fairness and sufficiency of reasons is egregious enough; however, those are not the only shortcomings in this process.

For members of the Regular Force component of the CF, who are not permitted to apply for and obtain a provincial health card, there is no opportunity to seek an external second opinion.  This is one aspect of the administration of the affairs of the CF in which a Reserve Force member has an advantage over a Regular Force member.  A reservist will undoubtedly have a provincial health card.  A reservist will have an opportunity to seek a second opinion regarding a contentious diagnosis.  While there is a possibility for a member of the Regular Force to seek a second opinion, that second opinion will typically come from another CF (or CF-employed) physician within CF H Svcs, to whom the CF member is referred by a CF physician.

A contrary second opinion is not a guarantee of a fair decision-making process.  First, the CF member would require the wherewithal and understanding of the significance of the anticipated diagnosis to seek the second opinion in the first place.  Time will be of the essence and, by the time an AR-MEL is generated, it will likely be too late to seek a second opinion.  (Remember, a CF member will typically be afforded only 15 working days to present representations in an Administrative Review.)  A Regular Force member who seeks a second opinion would have to first obtain the approval of their primary care physician to obtain a second opinion.  Where it requires referral to a specialist, the primary care physician may be reluctant to recommend the use of such limited and expensive resources and may even attempt to dissuade the CF member from seeking that second opinion.

However, even if the CF member is alive to the benefit of a second opinion and is actually able to obtain such in a timely fashion, there remains a more significant hurdle.  D Med Pol asserts a monopoly on the authority to make decisions regarding MEL and PCAT.  And that assertion is not entirely without justification.

Article 34.15 of the QR&O, entitled ‘Medical Boards’, states:

34.15 – MEDICAL BOARDS

(1) A medical board shall be assembled to examine the medical condition of a member:

(a) of the Regular Force or the Special Force

(i) before he is released or is transferred to the Reserve Force,

(ii) before his medical category is permanently altered,

(iii) before he proceeds on leave without pay and after his return from that leave,

(iv) when the total of sick leave recommended exceeds 30 days,

(v) on repatriation to Canada for medical reasons, and

(vi) at any other time prescribed in orders issued by the Chief of the Defence Staff; and

(b) of the Reserve Force when prescribed in orders issued by the Chief of the Defence Staff.

(2) A medical board shall consist of two medical officers when available or one medical officer when two medical officers are not available.

(3) A civilian medical practitioner employed under article 34.17 (Employment of Additional Medical Doctors and Other Health Care Personnel) may be appointed to a medical board in addition to a medical officer mentioned in paragraph (2) where it is considered desirable.

 

Presumably, this is what is done at Med Pol & Stds when career-limiting MEL and PCAT are imposed on the relevant CF personnel.  It would be interesting if CF H Svcs produced statistics on the frequency with which they rely on sub-article (2), above, to perform this function using only one medical officer.  Moreover, in my experience, there is often little or no evidence presented during an AR-MEL of such boards being convened.  Certainly, the AR/MEL files that I have reviewed will typically make no reference to the content or nature of any ‘board deliberations’ or analysis.  The files will simply present the conclusory statements in the CF 2088 or DND 4345-E.

Additionally, D Med Pol will consistently cite CF policies in support of its decision-making monopoly.  These include: A-MD-154-000/FP-000 Canadian Armed Forces Medical Standards (CFP 154), specifically, Chapter 4 – Medical Employment Limitations and Medical Categories; Canadian Forces Military Personnel Instruction (CF Mil Pers Instr) 11/04 – Canadian Forces Medical Standards; CF H Svcs Instruction 5020-07 Changes of Medical Category or Employment Limitations; CF H Svcs Instruction 5100-16 Guidelines for the Application of MELs to Personnel Suffering from Mental Illness; and, CF H Svcs Clinical Council Combined MEL Guidelines.  However, only CFP 154 is available publicly.  A summary of CFP 154 is available online here, and Chapter 4 may be found here.  However, this is very basic information.  The information pertaining to the authority to describe and assign MEL are contained in CF H Svcs Gp Instructions, which are not available online.  For more information, it is necessary to contact Med Pol & Stds.  And, remember, these are policy documents generated by CF H Svcs personnel.  They are not a legislative basis for decision-making.

Consequently, even if the CF member is able to obtain a ‘second opinion’, and the second opinion is contrary to, or differs from, that of D Med Pol, the CF member can anticipate that D Med Pol will assert its exclusive monopoly on such decisions as the basis for rejecting the second opinion.  This amounts to argumentum ab auctoritate – argument from authority (or appeal to authority): “I am D Med Pol, and the decision is mine, and mine alone, to make.”

As I have illustrated above, any challenge to the D Med Pol decision will inevitably be after-the fact, as the CF member does not actually play any constructive role in the D Med Pol decision-making process.  The first opportunity that the CF member will have to object to D Med Pol’s conclusory reasons will be the AR-MEL

 

Impact of the D Med Pol Decision on the AR-MEL

One of the more problematic aspects of this process is the seeming ‘catch-22’ that a CF member faces, which I contend is predicated upon a rather disingenuous interpretation of the process by certain CF decision-makers.

In light of the process described above, many CF members affected by MEL-related decisions often only challenge those decisions once the AR-MEL is generated or, worse still, once DMCA makes the career-limiting determination of a compulsory release or compulsory change of MOS.

When a CF member does challenge a career-limiting decision by DMCA, whether by grievance or other mechanism, DMCA will take the position (not surprisingly) that DMCA is not in a position to second-guess a medical diagnosis by D Med Pol or any other CF medical officer.  (And DMCA will often erroneously refer to D Med Pol’s statutory decision as a ‘diagnosis’, even though D Med Pol is several steps removed from the ‘patient’.)  If a CF member grieves the DMCA decision of a compulsory release, the initial authority will typically be identified as DGMC.  As with DMCA, DGMC will conclude that DGMC is not in a position to second guess a medical diagnosis.

A CF member could attempt to challenge the decision by D Med Pol prior to the AR-MEL.  This does not happen often.  I suspect that three of the contributing factors are: (i) the limited information available to the CF member when the D Med Pol decision is made; (ii) the CF member is alerted to the decision only after it is made; and, (iii) the focus of the CF member will often be on the ostensible ‘career-limiting’ decision by DMCA, and not the underlying justification of the DMCA decision: the D Med Pol decision.

If a CF member challenges the ‘career limiting’ determination within the AR-MEL, this ‘catch-22’ typically unfolds as follows: (i) The CF member contends that the MEL are not warranted or that the assigned PCAT is overly restrictive.  (ii) The CF member may present some evidence in support of his or her position; however, that will tend to be an exception due to the limitations in seeking a second opinion.  (iii) DMCA will eventually determine that the CF member must be released, must change MOS, or other career limiting decision.  DMCA will assert that DMCA cannot alter the MEL or PCAT imposed by D Med Pol.

In short, D Med Pol takes the position: “Hey, it’s DMCA who is directing your release”; while DMCA asserts: “I have to accept the diagnosis offered by D Med Pol”.  And round-and-round we go…

 

The Standard and Content of the Decisions

What are the standards applied to the decision-making processes described above?  This Blog article does not offer an opportunity to examine all potential decisions that could arise from MEL and a change of PCAT.  Therefore, we will examine the most extreme decision: that of compulsory release for breach of ‘universality of service’ or ‘U of S’.

I have discussed the concept of universality of service in a previous Blog article.  Despite the common reliance upon this principle by CF decision-makers, and its examination by the Federal Court in judicial review of grievances relating to such decisions, there remain, surprisingly, mischaracterizations about this principle.

For example, in the recent judgment of the Federal Court in Kreutzweiser v Canada (Attorney General), 2018 FC 46, the court examined the principle of universality of service in a grievance relating to the compulsory release of a member of the CF.  In this particular matter, the grievance had been referred to the Military Grievance External Review Committee (MGERC) and the final authority had apparently adopted the reasoning of the MGERC in determining the grievance.  At para 15 of the judgment, the court held:

After laying out the facts and stating the positions of the Applicant and the initial authority, the [MGERC] begins its analysis by explaining the universality of service principle. The liability of all CAF members to perform any lawful duty at all times is established by s 33(1) of the National Defence Act, RSC 1985, c N-5 [NDA]. This universality of service principle means that all CAF members must be able to perform basic military skills and be prepared for military conflicts arising at any time. CAF policy stipulates that meeting the universality of service principle requires being physically fit, employable, and deployable. The Committee explains that the principle is recognized by s 15(9) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], which makes the CAF’s duty to accommodate subject to the universality of service requirement.

However, this passage misstates the principle of universality of service.  Technically, it does not apply to all CF members.  Subsection 33(1) of the NDA states:

33 (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty. [emphasis added]

The court did not state whether Kreutzweiser was a member of the Regular Force.  While there are several judgments of the Federal Court and Federal Court of Appeal concerning the principle of ‘universality of service’, there is relatively sparse case law that distinguishes the effect of this principle on members of the Reserve Force compared to members of the Regular Force.

There is, nevertheless, a distinction that can be drawn between the requirements of members of the Regular Force and personnel who serve on non-continuous part-time service (i.e. the Reserve Force).  The present Blog article does not afford an opportunity to examine these distinctions, nor is the examination of this distinction necessary for the examination of AR-MEL.  Certainly, if decision-makers and courts treat this principle as applying to all members of the CF, rather than just officers and NCM of the Regular Force, such distinctions will not be judicially explored until they become central issues in litigation.

In Kreutzweiser, the court examined the reasons described by the MGERC, which were adopted by the final authority.  The court held that it was reasonable for the final authority to conclude that the applicant (grievor) was in breach of ‘universality of service’.  There was apparently compelling evidence presented in the process leading to the final authority’s determination that the applicant (grievor) was incapable of meeting the exigencies of ‘universality of service’.

But what of circumstances where the evidence is not nearly so compelling?  Where it is ambiguous?  Or where, Heaven forbid, there is contradictory evidence?

The Federal Court judgment in Bouchard v Canada (Attorney General), 2014 FC 1231 [Bouchard] is a cautionary tale.  The grievor challenged his compulsory release decision by DMCA, based upon unreasonable MEL imposed by D Med Pol.  The grievor received determinations from both the initial authority and the final authority.  There are compelling indications that both grievance authorities approached the matter with an entrenched perspective.

At the final authority, the MGERC recommended that the grievance should be upheld and that the release decision, commencing with the determination of the MEL, should be restarted from the beginning.  Despite a compelling basis for this recommendation, the final authority rejected the MGERC’s conclusions and adopted instead the rationale advanced by D Med Pol.  Justice Bedard found the CDS’ determination unreasonable.  Of course, by the time the grievor received a determination from the final authority, he had already been released from the CF.[1]  Notwithstanding that the CDS’ determination was quashed, the grievor, MCpl Bouchard, was not – and could not be – reinstated.[2]

In particular, Justice Bedard observed, at para 56 of her judgment:

Nothing in the record suggests that, in its assessment of the applicant’s condition, D Med Pol examined and considered the frequency of mood swings, the type of medication he was taking, the care and services that had been required to stabilize his condition, the presence or absence of limitations arising from his condition, and so forth. The only physician who fully assessed the applicant’s personal situation is Dr. Fallu. It is useful to recall that Dr. Fallu is a psychiatrist whose expertise is recognized by the CAF, which regularly use his services.  [emphasis added]

In that case, D Med Pol, and the CDS, had adopted such an entrenched position that they refused to give appropriate consideration to a specialist who had assessed the grievor, and upon whom the CF regularly relied for such assessments.

Justice Bedard went on to observe, at para 59 of her judgment:

Captain Courchesne [D Med Pol], and the CDS who agreed with his opinion, expressed his disagreement with Dr. Fallu’s opinion. D Med Pol was not obliged to accept Dr. Fallu’s opinion, but I find its explanations for justifying its assessment of the applicant’s condition to be irrational and plainly inadequate in the present context.

Note, too, what Justice Bedard states at paras 68 and 69 of her judgment:

D Med Pol was not obliged to accept Dr. Fallu’s opinion, but in rejecting it, it had a duty to explain the basis for its decision. I find that, in this matter, it was frankly insufficient for D Med Pol to limit itself to expressing its disagreement with Dr. Fallu’s assessment in relying on general statements on the nature of bipolar disorder, without any reference to the applicant’s specific case. Dr. Fallu expressed his opinion on the specific questions asked of him by the CAF in relation to the applicant’s condition and which were within his area of expertise.

The imposition of permanent MELs was a determining factor in the review of the applicant’s medical category, in the administrative review and in the decision to release the applicant from the CAF. But the evidence in the record does not explain why Dr. Fallu’s specialized personalized assessment was rejected in favour of D Med Pol’s purely medical one. Moreover, nothing in the record suggests that D Med Pol relied on the medical literature to reject Dr. Fallu’s opinion

Not all CF members will obtain a medical opinion contrary to that of D Med Pol.  In many cases, medical limitations may be clear and not in dispute.  However, where there is potential for disagreement among medical professionals, recourse to a second opinion is a rare opportunity for a member of the Regular Force.  And the CF, ultimately, can control the selection of the specialist to whom a Regular Force member will be referred.

Nevertheless, as Justice Bedard observed in Bouchard, and consistent with any other statutory decision-maker in the CF, even D Med Pol must make decisions that are transparent, justified (i.e. based upon actual evidence before the decision-maker), and intelligible.  The decisions must be reasonable.  They must fall within a range of reasonable outcomes.

Often, when D Med Pol imposes MEL or otherwise justifies changes to a PCAT, the justification will be provided by what are colloquially termed ‘pearls of wisdom’.  These appear to be set characterizations – boiler-plate catch-phrases by another description – intended to signal deductions pertaining to prerequisites or standards.  Some of these phrases will signal where a person’s medical status will fall on a numerical scale applied to individual descriptors associated with a ‘medical category.  These categories are described in Annex A to ‘CFP 154’ – Canadian Armed Forces Medical Standards.  Annex A is entitled “The Medical Category System”.

A CF medical category is predicated upon six characteristics:

1. Vision (V);
2. Colour Vision (CV);
3. Hearing (H);
4. Geographic (G);
5. Occupational (O); and
6. Air Factor (A)[3].

Two of the most commonly contentious factors are the Geographic factor (G) and the Occupational factor (O).  Here is what Annex A to the Canadian Armed Forces Medical Standards has to say about these factors:

Geographic – Previous editions of CFP 154 have defined the Geographic Factor in relation to the environments a member can or cannot tolerate. This definition has evolved to one based on the required proximity to medical care. This includes the requirement for scheduled medical care, as well as an assessment of the risk of recurrence or exacerbation of the medical condition and the level of medical care that would be required. Many of the questions suggested in CF H Svcs Gp Instruction 4154-00 Guidelines for the Application of Medical Employment Limitations should be considered in the assessment of the geographic limitations and should be reviewed prior to assigning the G factor.

…

Occupational – The physical and mental activity and the stress associated with employment within a specific MOSID, although often difficult to describe and measure in an objective and reproducible manner, are important aspects in the grading of the occupational factor. The demands on the member may vary with the MOSID, as well as with the geographical locale. In general, the associated mental stress is not described in any detail, unless a specific MOSID or medical condition(s) (usually psychiatric) so dictates. In these cases, consultation with a military psychiatrist should describe acceptable levels of mental stress for the particular member. Annex B serves as a concise guide to the expected tasks and duties of all military personnel. Members with medical conditions which impose limitations should be assessed against both the Generic and the MOSID Task Statements. In this way, an appropriate O factor can be assigned. Many of the questions suggested in CF H Svcs Gp Instruction 4154-00 Guidelines for the Application of Medical Employment Limitations should be considered in the assessment of the occupational limitations and should be reviewed prior to assigning the O factor.

These are the two factors most commonly linked to disputes over universality of service.  Often, the D Med Pol determinations that result in the conclusion that a member is in breach of universality of service will pertain to either or both of these factors.  These will often be linked to the Generic Task Statements in Annex B of CFP 154.

Some of these pithy determinations, in relation to mental health issues, are described above:

• Requires medical follow-up more than every 6 months
• Member unable to safely handle and effectively operate a personal weapon;
• Member unfit driving military vehicles; or
• Member requires specialized treatment more frequently than every 6 months.

These are typically presented as ‘review proof’ assertions that will invariably oblige DMCA to conclude that a CF member must be released under a compulsory medical release item.  Remember: DMCA will not challenge the validity or merit of any conclusory determination presented by D Med Pol.

 

Challenges for CF Members

One of the principal challenges faced by CF members who are subject to AR-MEL is the fact that the truly determinative decision – the decision by D Med Pol to impose particular MEL or a specific PCAT – is made before the AR-MEL is even convened.  This dynamic presents multi-faceted challenges.

The CF member has no participatory role in that decision-making process.  If the CF member focuses on making representations to DMCA in the AR-MEL process, the CF member, in effect, is obliged to accept the determination by D Med Pol as a fait accompli.  This, in turn, will tend to make DMCA’s eventual decision in the AR-MEL a foregone conclusion.

If a CF member wishes to contest the eventual significant decision affecting his/her rights, interests, and privileges as a CF member, then it is necessary first to challenge the initial D Med Pol decision.  This, in turn, requires the CF member to understand the distinction between these two decisions (for which, hopefully, the present Blog article will provide some assistance) and must articulate this distinction in any representations.

If the CF member chooses to challenge the D Med Pol decision within the context of the AR-MEL, DMCA staff (and, eventually, DMCA) will invariably assert that the AR-MEL is focused on the career decision by DMCA and that it is not the appropriate mechanism to challenge the MEL or PCAT.  Therefore, the CF member will have to turn to the principal ‘adequate alternative remedy’ available to him or her: the CF grievance process.

 

Grievance

In light of the fact that a CF member is not afforded true procedural fairness regarding the decision by D Med Pol, it is not surprising that the grievance process becomes the most critical mechanism to safeguard a CF member’s rights, interests, and privileges in the face of a career-ending decision based upon medical conclusions.

Unfortunately, what many CF members may not realize is that, conceptually, the CF’s statutory grievance process does not exist principally as an aid to them in resolving disputes with statutory decision-makers, but, rather, to assist the institution in avoiding litigation before the Federal Court.  As I have indicated in previous Blog articles, a CF member must generally exhaust the CF grievance process before seeking review before a constitutionally independent court.  Consequently, there are two distinct factors that separate this judicial review from any substantive or procedural errors by either D Med Pol or DMCA:

1. The CF will have at least one, if not two, opportunities to correct any procedural errors and substantive deficiencies in the decisions by virtue of the adjudication by the initial authority and the final authority; and
2. Under the current administrative law principles presently recognized by the courts, the final authority’s determination (which is the decision that is actually brought before the Federal Court) will be granted a significant margin of appreciation and deference.

Even if the court over-turns the determination, in light of the timeline for so-called ‘medical releases’ (which are usually completed 6 months after the DMCA decision) and the adjudication of a grievance by the final authority (which typically takes in excess of a year from the date the grievance is submitted to the date of the final authority’s determination), the grievor will likely be a civilian (and will have been for several months, if not years) before the court reviews the determination.  This is what arose in Bouchard.  Even if the final authority overturns the D Med Pol and/or DMCA decisions, this will arise well after the grievor has been released.  At present, the CDS does not have the power to reinstate a grievor who was subject to an ‘improper release’.

So, what can a CF member do if he or she feels aggrieved by a decision to order his or her release, or other significant career action (e.g. compulsory change of MOS), as a result of MEL or a PCAT?

It starts with the decision by D Med Pol.  Most CF grievors focus on the AR/MEL when they submit their grievance.  While the AR/MEL process should be scrutinized for substantive and procedural errors, a grievor should understand that DMCA (and DGMC) will not question the D Med Pol ‘diagnosis’.   Therefore, if the grievor has concerns about the merit, fairness, or transparency of the D Med Pol decision, he or she needs to address that explicitly.

One of the first challenges the CF member may face is the 3-month limitation period under QR&O art 7.06.  If the CF member waits until an AR-MEL is concluded to grieve the decision by D Med Pol, that 3-month limitation period will invariably have expired.  In many cases, the AR-MEL could take at least three to six months to conclude.  Even if the CF member does not receive disclosure of the CF 2088 or DND 4345-E prior to the AR-MEL (which is not an infrequent occurrence), the CF member will undoubtedly receive a copy of the MEL change form during the AR-MEL process.  The member may also receive a copy shortly before, or contemporaneous with, the initiation of the AR-MEL.

If the CF member waits until an unfavourable decision is made by DMCA, based upon contentious MEL or PCAT, the CF member can anticipate that D Med Pol (or another senior medical officer) will insist that the initial authority (IA) for any MEL-related grievance should reject a grievance based upon delay.  Indeed, in a recent MEL-related grievance for which I assisted a CF member, SSO Med Pol & Stds did just that: despite the fact that the IA had already accepted a grievance for determination, notwithstanding the expiration of the limitation period, SSO Med Pol & Stds insisted that the IA should reject the grievance for delay.  It appeared to me that SSO Med Pol & Stds did not appreciate the fact that the grievor raised compelling arguments about the multiple shortcomings relating to the fairness of the MEL decision-making process.  The IA’s grievance staff had to remind SSO Med Pol & Stds that the grievance had already been accepted for adjudication by the IA, which required D Med Pol staff to respond to the arguments presented by the grievor.

The limitation period at QR&O 7.06 will commence when the CF member learns, or ought reasonably to know, about the career-limiting MEL or PCAT.  Consequently, the likeliest point from which to calculate the limitation period is the date that the CF member receives a copy of the DND 4345-E (formerly CF 2088).  Therefore, a prudent CF member, who wishes to contest the MEL and/or PCAT, should bring a grievance as soon as practicable after receiving this form.  This will ensure that the CF member may bring a grievance ‘as of right’, rather than relying on the exercise of discretion by the IA to accept a grievance that is submitted outside the 3-month limitation period.

Timely submission of a grievance also has the benefit of increasing the likelihood of resolving the matter before a career-ending decision is made by DMCA.  While it remains possible – or even likely – that an AR-MEL will proceed notwithstanding a grievance relating to the underlying MEL or PCAT, as I describe above, the CF member will be unable to challenge the MEL or PCAT meaningfully within the AR-MEL process.

By grieving the MEL/PCAT decision by D Med Pol as soon as practicable – preferably before the AR-MEL is convened – the CF member may also set conditions to bring an argument before DMCA that the AR-MEL process must be suspended until the MEL/PCAT-related grievance has been exhausted.  After all, that is the CF member’s ‘adequate alternative remedy’.  If such a request is rejected by DMCA, it also sets conditions for a CF member to seek interim interlocutory relief from the Federal Court, prohibiting the conduct of the AR-MEL until the MEL/PCAT-related grievance is concluded (i.e. a decision is made by the final authority).  It is at this stage in the process that the CF member would likely benefit from the assistance of privately retained counsel.

One of the challenges that the grievor will face throughout both the AR-MEL and the grievance processes is the ‘culture of entrenchment’ that CF H Svcs has developed concerning these decisions by D Med Pol.  As I note above, medical officers within Med Pol & Stds appear to take the position that the assignment of MEL or the alteration of the medical factors for a PCAT represents a ‘medical decision’ or ‘diagnosis’.  I contend that this is an incorrect characterization.  When assigning MEL or PCAT, D Med Pol is exercising public law authority and acting as a statutory decision-maker.  In light of the consequences of such decisions (particularly those which can lead to career limitations, including compulsory release), a CF member is entitled to procedural fairness, including the right to make meaningful and informed representations to the decision-maker: Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 SCR 311; Cardinal v Director of Kent Institution, [1985] 2 SCR 643.

And make no mistake: D Med Pol is making a career-limiting decision.  D Med Pol may take the position that it is the decision by DMCA that is the career-limiting decision and that the AR-MEL process followed by DMCA offers sufficient procedural fairness to the CF member.  However, as I explain above, such a position would be inaccurate, unreasonable, and disingenuous.

In the conduct of an AR-MEL, DMCA does not question the basis of the D Med Pol decision concerning MEL and PCAT.  The disclosure and synopsis offered by DMCA during the AR/MEL will not question the merit of D Med Pol’s determination.  Consequently, any representations by a CF member during the AR/MEL concerning the merit of the decision by D Med Pol would not constitute an opportunity to make informed representations to an unbiased (and unfettered) decision-maker.  DMCA can be expected to reply to any such representations by stating: (i) DMCA is bound by the ‘medical determinations’ by D Med Pol; and (ii) a decision to order a compulsory release is predicated upon the CF members PCAT and MEL.

Based upon this logic, during the process by which a CF member is compulsorily released from the CF for medical reasons, the aggrieved CF member would never truly have an opportunity to contest the actual reasons underlying the decision.  If the CF member grieves the DMCA decision, the redress authorities who determine the outcome of the grievance will undoubtedly assert that DMCA’s decision was reasonable because DMCA is not in a position to challenge the MEL or PCAT assigned by D Med Pol.  Consequently, a grievance of the DMCA decision leads to a futile examination of an entrenched institutional decision.

This process is further undermined by the inability of a Regular Force member to obtain a truly independent second opinion.  Members of the Regular Force are not permitted to possess a provincial health card.  They do not have their own personal primary care physician.  They are obliged to rely on physicians provided by the CF H Svcs Gp.  Not only do they not have the option of seeking a truly independent second opinion, they do not even have the choice of which CF physician they can select.

Added to this lack of independent framework is the ongoing fiction that a CF member can have an open discourse with his or her primary care physician.  This is because the CF can, and will, make use of a CF member’s personal medical information without requiring the CF member’s express consent.  The reliance on this information to impose a PCAT and MEL, and to direct compulsory release, does not require the CF member’s consent.

There is nothing unlawful about the CF relying on a CF member’s medical information (which is under the control of the CF).  There are compelling justifications for the CF to have this lawful authority.  However, it appears disingenuous when CF medical authorities take pains to try to assert that they balance patient rights and interests in this process.  The reality is that CF H Svcs compiles medical information on CF members both to provide medical care to those members and to make determinations about medical fitness to remain in the CF.  It is a fiction that a CF member has the same privacy interests regarding medical information, and its use in career-limiting circumstances, as is enjoyed by the broader civilian population.

In addition to providing medical care for CF personnel, CF H Svcs is also responsible for making statutory determinations that affect CF members’ careers. This distinguishes them from private physicians.  The personal physician of an employee in the private sector would generally be prohibited from sharing the patient’s medical information with the patient’s employer.  While there are means for the employer, in certain circumstances, to obtain that information for certain purposes, there is a marked distinction between civilian employers and the CF.  I do not suggest that there is no justification for this marked distinction; however, I do object to the perpetuation of the fiction that somehow a CF member’s interests are protected to the same extent as a civilian when the organization charged with the exclusive provision of the CF member’s medical services (for members of the Regular Force) is also responsible for making career-ending determinations in a process from which that CF member is largely excluded.  And, in this process, CF H Svcs decision-makers assert a monopoly in such determinations.  Further, the CF member is generally prevented from seeking an independent second opinion, or even from making informed and meaningful representations to a decision-maker who, subsequently, appears to believe that conclusory, summarized justifications are sufficient.

Also, for clearly justifiable reasons of privacy, a CF member is not permitted to access other CF members’ medical files.  Thus, there is no way for an affected CF member to know how D Med Pol treats other CF members in similar circumstances.  The CF member can only rely upon his or her own experiences and information.  It is impossible for the CF member to corroborate the belief that D Med Pol consistently takes an entrenched attitude regarding statutory decision-making such as the imposition of PCAT and MEL.

However, there are indications that senior CF medical authorities do, in fact, have an entrenched attitude toward D Med Pol’s the decision-making.  The above-noted case of Bouchard offers a compelling example.  These authorities assert that D Med Pol is the corporate authority responsible for impartially reviewing and considering requests with respect to the medical services rendered and decisions pertaining to MEL and PCAT.  This implies that no one has the authority to second-guess such decisions, including whether D Med Pol is truly being impartial and reasonable.

This entrenched attitude leads to rigidity in the AR-MEL process.  In order to have a meaningful opportunity to respond to an ‘analysis’ by DMCA staff, a CF member must have a meaningful opportunity to review the underlying D Med Pol decision.  That decision is made in a process from which the CF member is generally excluded.  This requires the CF member to seek disclosure of his or her own medical information from CF H Svcs, after the D Med Pol decision is made.  It is not uncommon for CF members to experience delays in this disclosure process.  Moreover, if it is initiated during the DMCA AR-MEL (as will often be the case), the CF member will only have 3 weeks to make his or her representations.

In the past, CF members have been informed by DMCA staff that, if they require more time, they can make additional representations through the grievance process.  This is tantamount to saying: ‘We don’t have to give you a procedurally and substantively fair process regarding your compulsory release; you can always grieve it.’  There are some indications that DMCA staff are taking a more flexible approach to extending time limits for representations.  However, these extensions generally amount to 2 to 4 weeks.  In a process that is measured in months, and where access to personal information can take several months, this is not a significant additional amount of time.

However, I suggest that it is morally, if not legally, untenable for a public decision-maker to employ a manifestly unreasonable process by relying on subsequent remedial mechanisms to justify an initially unfair process.  Even setting aside this moral-legal question, there are two other defects with the perspective: ‘if you don’t like it, you can grieve it’.  First, it accentuates the dangers of entrenched decision-making.  Second, it ignores the obligations imposed on statutory decision-makers by manipulating the temporal dynamic of the decision-making process.

As I indicate above, there is a tangible risk that CF members in such circumstances face entrenched decision-makers.  Decision-makers within CF H Svcs Gp and NDHQ (e.g. D Med Pol) have clearly demonstrated intransigence concerning their earlier decisions when faced with contrary representations or facts.  I suspect they rely, in part, on the impracticability of any single CF member being able to present tangible evidence of their intractability.  A sole grievor will not be able to conduct a searching analysis of decisions in similar circumstances, because such decisions constitute personal information attributable to other people.  Even if a grievor were to submit an Access to Information (ATI) request regarding other CF members in similar circumstances, there would be considerable delay in the delivery of information, and it would likely be heavily redacted.

Similar intransigence can arise with DMCA.  Once DMCA makes a determination concerning compulsory release, like most institutional decision-makers, DMCA will be reluctant to revisit such a decision, even if the material facts (or representations, based upon recently disclosed information) change.  That institutional entrenchment is exhibited by redress authorities in the grievance process.  DGMC is reluctant to overturn the decisions made by DMCA.  This then triggers the second concern.

The CF, as an institution, controls its own processes.  There are very few time constraints imposed on decision-makers.  Conversely, individual CF members, who are affected by institutional decisions, are consistently constrained by limitation periods imposed either by legislation or policy.  While it is understandable that the CF, as an institution, would wish to ensure timely administration by imposing limits on personnel making use of administrative systems, this aggravates a pre-existing power imbalance.  This is exacerbated by rigidity of process.

The limitations imposed upon the subjects of AR-MEL (i.e. no more than 15 working days to make representations to DMCA) is a tangible example.  When imposing this limitation, DMCA staff typically inform the affected CF member that only the most compelling justification would permit an extension.  Recalling that CF members have no opportunity to make any representations concerning the D Med Pol decision that precipitates the AR-MEL, the CF member is essentially given 3 weeks to make representations concerning both decisions.  In comparison, D Med Pol and DMCA will typically have several months to arrive at, and reinforce, their conclusions.  While there have been indications recently that DMCA staff are becoming more flexible in granting limited extensions to respondent CF personnel who seek extensions, these extensions are typically 2 to 4 weeks.  They do not adequately address the power imbalance.

Undoubtedly, the CF will wish to guard against CF members attempting to prolong their service, and to delay a decision adverse to their interests, through the employment of ‘requests for extension’ as a delaying tactic.  However, where statutory decisions significantly impact the rights, interests, and privileges of CF members, those CF members are entitled to a fair process, including the opportunity to make informed and meaningful representations to the decision-maker.  The CF controls not only the AR-MEL process, but also the grievance process which the CF member is obliged to use when challenging such a decision.  The CF controls the information made available to individual CF members, including the timeliness (or lack thereof) in which it is provided to those CF members.  Therefore, it is incumbent upon the CF and CF decision-makers to ensure that the process is reasonable and procedurally fair.

Generally, once DMCA makes a compulsory release determination, a CF member will be released within 6 months (or less).  It is unlikely that any related grievance will be determined within that time-frame.

Again, the obligations relating to limitation periods are principally imposed on individual CF members, not the CF as an institution.  The grievor must bring the grievance within 3 months.  In the case of a compulsory release, I suggest that the grievor must be prepared to bring the grievance immediately in order to place the grievance before the initial authority sufficiently in advance of the compulsory release taking effect.  Where the impugned decision is a compulsory release, a CO will not be the initial authority.[4]  The grievance must be forwarded to DGCFGA within 10 days of receipt by the CO, and thence to the appropriate initial authority[5].

This limitation is observed principally in the breach thereof.  This is unsurprising, as there is no enforcement mechanism in the legislated regime.  There are no consequences if the CF, as an institution, fails to meet this time limit.  There is no incentive for the institution to be timely in forwarding the grievance to the initial authority.  Once the initial authority receives the grievance, he or she must make the determination within four months of receipt of the grievance (not the date it is submitted to the CO).[6]  Even if the initial authority does not determine the grievance within four months, the sole recourse for the grievor is to either wait for the initial authority (thereby rendering the putative limitation period nugatory) or refer the matter to the final authority[7], who faces no limitation period for the determination.  Conversely, QR&O Chapter 7 imposes limitation periods on grievors throughout the process.  Additionally, policies such as DAOD 2017-1 impose additional limitation periods on grievors, such as the obligation to make representations within 21 calendar days of receipt of a synopsis from the initial authority’s grievance staff.[8]

Frankly, it is not realistic for a grievor to expect a final and binding determination in the grievance process before the ‘typical’ 6-month period for a ‘compulsory medical release’ expires.  As DMCA staff will often stress to an affected CF member: CF members are not entitled to a full 6-month period prior to a compulsory release.  Therefore, the suggestion that a CF member need not be granted an extension ‘save in exceptional circumstances’ is an overly restrictive approach for the CF to take when the future of a CF member’s career is at stake.

Even then, there is the possibility that entrenched attitudes will not be over-come in the grievance process, as demonstrated in the Bouchard judicial review.

Perhaps, in light of what arose in Bouchard, CF H Svcs might be reluctant to engage outside consultants who are not prepared to support the conclusions of CF decision-makers.  In any event, Justice Bedard clearly identified that the decision regarding the imposition of MEL directly and substantially affects not only the review of a grievor’s medical category, but also the administrative review and decision by DMCA to order compulsory release.

Consequently, such decisions must be predicated upon clear and convincing evidence.  They must be transparent.  The underlying evidence must justify the determination.  The reasons must be intelligible and the decision must be within a range of reasonable outcomes.  Ultimately, however, these standards are not applied to the decisions by D Med Pol or DMCA, but on the decisions made by the final authority when adjudicating a grievance concerning the decisions by D med Pol and DMCA.

 

How can things be improved?

There are a variety of changes that could be implemented in the Administrative Review process that would improve the timeliness, fairness, and objectivity of that process.  And the rationale for making such improvements is not solely for the benefit of the individual CF members who are the respondents in these processes.  Improved Administrative Reviews mean that CF decision-makers will be able to make better, timelier, decisions.  That represents an institutional improvement.  However, recommendations for improving Administrative Reviews generally will be the subject of the next, and final, Blog article in this series.  The focus of the present Blog article is the AR-MEL process.

Clearly, the most significant improvement to be made relates to the process by which MEL and PCAT are assigned.  Indeed, the nomenclature “AR-MEL” is misleading, as the Administrative Review does not relate to the assignment of the MEL, but, rather, to the decision-making once MEL are imposed.  One of the most pertinent improvements that could be made is to permit the CF member, whose rights, interests, and privileges are so significantly affected, to have a clear participatory opportunity in the decision-making process.

The Administrative Review process is an obvious tool that could be adopted by the decision-making conducted by, or on behalf of, D Med Pol.  However, D Med Pol is not obliged to use the policy under DAOD 5019-2, provided that the ‘content of fairness’ of whatever mechanism is adopted meets the fairness required for decisions that will significantly affect a CF member’s rights, interests, and privileges.

This starts with adjusting the sequence of events relating to the completion of the DND 4345-E (formerly the CF 2088).  Rather than involving the affected CF member at the end of the process – which is invariably the least fair approach as it affords no participatory rights – the CF member should be informed of the recommendation to alter his or her MEL or PCAT when that recommendation is first made.  The CF member should receive disclosure of the basis for that recommendation.  The information conveyed in this step should be reduced to writing and provided to the CF member in a manner that accurately captures the process.

The CF member should be given an opportunity to offer representations on these recommendations, which should be submitted to the ‘Medical Board’ making the eventual determination.  Once the determination is made, the Medical Board must be obliged to reduce its decision to writing.  This decision must be predicated upon actual analysis, based upon a transparent process, producing intelligible reasons that rationally justify the decision.  A CF member’s service cannot be terminated based upon rote, boiler-plate ‘pearls of wisdom’.  Nor should it be terminated on a medical ‘star chamber’ in which a CF member has no participatory rights.

There is no indication that creation of this fair process will lead to an untenable administrative burden for the CF.  Not all CF members will contest their change of MEL or PCAT and, presumably, fewer still will have compelling reasons for doing so.  But for those who do object, and whose objections are based upon meritorious concerns, the current AR-MEL is manifestly unfit for such a purpose, principally because it arises well after the actual MEL/PCAT decision has been made.

CF H Svcs medical practitioners have a clear and unambiguous legislated role in making determinations regarding medical fitness of CF personnel.  That is certainly not in dispute.  However, being assigned a clear legislated function is not a guarantee that the decision-makers are infallible.  Nor does it obviate the common law obligation imposed upon those statutory decision-makers to make fair and reasonable decisions.  Therefore, the process by which those decisions are made must be improved.

Adopting procedural changes to the decision-making process will not automatically correct entrenched and closed-minded attitudes.  However, the procedural changes noted above will at least recognize that MEL-PCAT decisions are not ‘medical diagnoses’ but are decisions by statutory decision-makers.  This recognition would be reinforced by the obligation to provide actual analysis and intelligible reasons.  By making the process more transparent to the affected CF member, and by granting the CF member meaningful participatory rights, there may be improvement regarding the tendency for CF statutory decision-makers to entrench their perspective.  Where entrenched perspectives persist, reviewing courts will have an opportunity to correct irrational and closed-minded decision-making, as the Federal Court did in Bouchard.

Finally, Bouchard highlights the importance of viable second opinions in MEL-PCAT decision-making.  All CF personnel, Regular and Reserve, must be permitted to seek a relevant second opinion, particularly where their continued service is at stake.  By involving them at an earlier stage in the decision-making process, they will be able to seek out second opinions.  While these won’t necessarily bind D Med Pol and other CF H Svcs decision-makers to a specific course of action or result, such second opinions should be considered by an open-minded decision-maker, and will improve the decision-making process.

Ultimately, improvement of MEL-PCAT decision making rests on CF decision-makers acknowledging three inter-related principles:

1. Decisions assigning MEL and PCAT are public statutory decisions, notwithstanding that they are predicated upon medical information.
2. As public statutory decisions, where the decisions can affect the rights, interests, and privileges of the CF members who are assigned the MEL and PCAT, those CF members are entitled to a fair process, and reasonable, transparent, and intelligible decisions that are justified based upon relevant evidence.
3. One of the most efficient and effective ways to ensure fair and reasonable decision-making is to ensure adequate participatory opportunities for the affected person.

Invariably, fair and reasonable decisions are ‘good’ decisions, not just for the affected individual, but for the institution making those decisions.  CF H Svcs decision-makers should not be afraid to make their decision-making processes transparent and fair.  However, the intransigence and culture of entrenchment that has consistently been displayed in past decisions by D Med Pol, may be a significant barrier to change.

[Suggested Citation: Rory Fowler, “Administrative Review – Medical Employment Limitations: Two Decisions for the Price of One!”, (July 15, 2020), online: The Military Justice Project, http://militaryjusticeproject.com/administrative-review-medical-employment-limitations-two-decisions-for-the-price-of-one/]

[1] In fact, the grievor was released well before even the initial authority’s determination.  Granted, the grievor was informed on 27 Jan 09 of his compulsory release set for 17 Oct Jan 09, and he did not bring his grievance until 6 Oct 09.  However, the facts described in Bouchard appear to indicate that the grievance was not determined by the initial authority until at least 2 years after it was initially submitted.  Even if Bouchard had submitted his grievance the day after receiving notification of his compulsory release, he still would not have received the initial authority’s determination until well after he was released.

[2] Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24, which received Royal Assent in 2013, introduced an amendment to section 30 of the NDA, which would permit the Chief of the Defence Staff to “… cancel the release or transfer of an officer or non-commissioned member if the officer or non-commissioned member consents and the Chief of the Defence Staff is satisfied that the release or transfer was improper”, subject to regulations enacted by the Governor in Council.  However, this provision has not yet come into force and will not come into force until regulations are enacted to do so.

[3] Air Factor (A) is generally only evaluated for potential air crew.  Those who do not require such evaluation are often identified as ‘5’ (for non-air crew who are fit to fly in aircraft as passengers) or ‘6’ (for CF personnel who cannot fly even as passengers).  Every MOS will have its own minimum standards for each of these factors, based upon the requirements of the MOS.

[4] QR&O art 7.14.

[5] QR&O arts 7.09 and 7.10.  Note that there is no express time limit on DGCFGA’s actions to forward a grievance to the appropriate initial authority: “as expeditiously as possible”.

[6] QR&O art 7.15.

[7] QR&O art 7.15(4).

[8] DAOD 2017-1, para 9.4.