|
Medical Professionals (RHPA) - Doctors. Torgerson v. Health Professions Appeal and Review Board
In Torgerson v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court set out basics of the Health Professions Procedural Code regime, here as it applies to physicians and surgeons (CPSO):Legislative Regime
The Complaints Committee
[37] The Complaints Committee is a statutory committee of the College that screens complaints and reports of the College’s Registrar’s investigations. It is established pursuant to s. 10 of the Code. The Complaints Committee’s powers in disposing of investigations are set out in s. 26 of the Code, which states as follows:What a panel may do
26. (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:
1. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.
2. Refer the member to a panel of the Inquiries, Complaints and Reports Committee under section 58 for incapacity proceedings.
3. Require the member to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.
4. Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws.
Prior decisions
(2) A panel of the Inquiries, Complaints and Reports Committee shall, when investigating a complaint or considering a report currently before it, consider all of its available prior decisions involving the member, including decisions made when that committee was known as the Complaints Committee, and all available prior decisions involving the member of the Discipline Committee, the Fitness to Practise Committee and the Executive Committee, unless the decision was to take no further action under subsection (5).
Quality assurance
(3) In exercising its powers under paragraph 4 of subsection (1), the panel may not refer the matter to the Quality Assurance Committee but may require a member to complete a specified continuing education or remediation program.
(4) If the panel considers a complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, it shall give the complainant and the member notice that it intends to take no action with respect to the complaint and that the complainant and the member have a right to make written submissions within 30 days after receiving the notice.
(5) If the panel is satisfied, after considering the written submissions of the complainant and the member, that a complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, the panel shall not take action with respect to the complaint.
[Emphasis added.] [38] In King v. Gannage,[8] at para. 21, Justice Swinton described the role of the Complaints Committee as follows:The [Complaints Committee] plays an important role in screening complaints and reports and deciding whether further action is necessary. Subsection 26(1) of the Code sets out the powers of the [Complaints Committee] panel. After investigating a complaint or considering a report, the panel must consider the member’s submissions and make “reasonable efforts to consider all records and documents it considers relevant to the complaint or the report”. It then has a broad discretion to decide whether to refer a specified allegation of a member’s professional misconduct to the Discipline Committee; take some other remedial action, such as a caution or the member’s attendance at a remedial program; or take any action it considers is not inconsistent with the health professions Act, the Code, the regulations or by-laws. The Publication of Complaints Committee Decisions
[39] In 2017, pursuant s. 11 of to the Protecting Patients Act, 2017,[9] the Code was amended to require colleges of the regulated health professions to provide the public with greater access to information in respect of complaints and discipline processes. As of the Complaints Committee decision, s. 23 of the Code required that the College maintain a register containing the following information:Register
23 (1) The Registrar shall maintain a register.
Contents of register
(2) The register shall contain the following:
1. Each member’s name, business address and business telephone number, and, if applicable, the name of every health profession corporation of which the member is a shareholder.
[…]
7. A notation of every caution that a member has received from a panel of the Inquiries, Complaints and Reports Committee under paragraph 3 of subsection 26 (1), and any specified continuing education or remedial programs required by a panel of the Inquiries, Complaints and Reports Committee using its powers under paragraph 4 of subsection 26 (1).
8. A notation of every matter that has been referred by the Inquiries, Complaints and Reports Committee to the Discipline Committee under section 26 and that has not been finally resolved, including the date of the referral and the status of the hearing before a panel of the Discipline Committee, until the matter has been resolved.
9. A copy of the specified allegations against a member for every matter that has been referred by the Inquiries, Complaints and Reports Committee to the Discipline Committee under section 26 and that has not been finally resolved.
10. Every result of a disciplinary or incapacity proceeding.
11. A notation and synopsis of any acknowledgements and undertakings in relation to matters involving allegations of professional misconduct or incompetence before the Inquiries, Complaints and Reports Committee or the Discipline Committee that a member has entered into with the College and that are in effect.
12. A notation of every finding of professional negligence or malpractice, which may or may not relate to the member’s suitability to practise, made against the member, unless the finding is reversed on appeal.
[…]
15. Information that a panel of the Registration Committee, Discipline Committee or Fitness to Practise Committee specifies shall be included.
16. Where findings of the Discipline Committee are appealed, a notation that they are under appeal, until the appeal is finally disposed of.
[…]
19. Information that is required to be kept in the register in accordance with regulations made pursuant to clause 43 (1) (t) of the Regulated Health Professions Act, 1991.
20. Information that is required to be kept in the register in accordance with the by-laws.
Access to information by the public
(5) All of the information required by paragraphs 1 to 19 of subsection (2) and all information designated as public in the by-laws shall, subject to subsections (6), (7), (8), (9) and (11), be made available to an individual during normal business hours, and shall be posted on the College’s website within a reasonable amount of time of the Registrar having received the information and in a manner that is accessible to the public or in any other manner and form specified by the Minister.
[…] [40] The College General By-law also provides as follows:Content of Register Entries
49. (1) In addition to the information required under subsection 23(2) of the Health Professions Procedural Code, the register shall contain the following information with respect to each member:
[…]
21. In respect of a decision of the Inquiries, Complaints and Reports Committee that includes a disposition of a caution-in-person, if the complaint that led to the decision, or, in a case where there is no complaint, the first appointment of investigators in the file, is dated on or after January 1, 2015, a summary of that decision, and, where applicable, a notation that the decision has been appealed or reviewed.
22. Where a decision referred to in paragraph 21 above is overturned on appeal or review, the summary shall be removed from the register.
23. In respect of a decision of the Inquiries, Complaints and Reports Committee that includes a disposition of a Specified Continuing Education or Remediation Program (“SCERP”), if the complaint that led to the decision, or, in a case where there is no complaint, the first appointment of investigators in the file is dated on or after January 1, 2015, a summary of that decision, including the elements of the SCERP, and, where applicable, a notation that the decision has been appealed or reviewed.
24. In respect of the elements of a SCERP referred to in paragraph 23 above, a notation that all of the elements have been completed, when so done.
[Emphasis added.] [41] The Code provides a mechanism to correct certain information on the register:Correction of information
23 (13.1) The Registrar shall correct any information contained in the register that is required by paragraph 12 of subsection (2) or that is both required by paragraph 19 of subsection (2) and designated as subject to this subsection in a regulation made under clause 43 (1) (t) of the Regulated Health Professions Act, 1991, where a member demonstrates, to the satisfaction of the Registrar, that the information contained in the register is incomplete or inaccurate and where the member provides the Registrar with the information that is necessary to enable the Registrar to correct the incomplete or inaccurate information. [42] As is contemplated by s. 23(13.1), the regulation Information Prescribed under Subsection 23(2) of the Health Professions Procedural Code, O. Reg. 261/18 designates that certain information is subject to the above section:1. (1) The following information, if known to the College, is prescribed information to be contained in a College’s register for the purposes of paragraph 19 of subsection 23 (2) of the Code and is designated as information subject to subsection 23 (13.1) of the Health Professions Procedural Code in Schedule 2 to the Act:
1. If there has been a finding of guilt against a member under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) and if none of the conditions in subsection (2) have been satisfied, […]
2. With respect to a member, any currently existing conditions of release following a charge for an offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) or subsequent to a finding of guilt and pending appeal or any variations to those conditions.
3. If a member has been charged with an offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) and the charge is outstanding, […]
4. If a member has been the subject of a disciplinary finding or a finding of professional misconduct or incompetence by another regulatory or licensing authority in any jurisdiction, […]
5. If a member is currently licenced or registered to practice another profession in Ontario or a profession in another jurisdiction, the fact of that licensure or registration. The Review Board
[43] A member of the College who is the subject of a complaint may request a review of a Complaints Committee decision under s. 29(2) of the Code. The Applicant and H.G. were the parties to the review. Section 33 of the Code sets out the scope of the review and powers of the Review Board in its review:Conduct of review
33 (1) In a review, the Board shall consider either or both of,
(a) the adequacy of the investigation conducted; or
(b) the reasonableness of the decision.
Procedure
(2) In conducting a review, the Board,
(a) shall give the party requesting the review an opportunity to comment on the matters set out in clauses (1) (a) and (b) and the other party an opportunity to respond to those comments;
(b) may require the College to send a representative;
(c) may question the parties and the representative of the College;
(d) may permit the parties to make representations with respect to issues raised by any questions asked under clause (c); and
(e) shall not allow the parties or the representative of the College to question each other.
Powers of Board
35 (1) After conducting a review of a decision, the Board may do any one or more of the following:1. Confirm all or part of the decision.
2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
3. Require the Inquiries, Complaints and Reports Committee to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation. . Dr. Rajiv Maini v. HPARB et al.
In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered 'cautions' as an administrative remedy in a professional discipline context:(iii) Is the Public Nature of The Caution a Factor in Assessing Reasonableness?
[55] Dr. Maini submits that a caution in person is a public disposition. We disagree in the circumstances of this case.
[56] The public nature of a caution is irrelevant to the reasonableness analysis here. A caution “is not a sanction or a penalty. A caution is entirely remedial in nature” (Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246, para. 81; Silverthorne v. College of Social Workers & Social Services Workers, 2006 CanLII 10142, para. 16; Fielden para. 10; Greenwald v. Health Professions Appeal and Review Board, 2008 CanLII 63184 (Ont. Div. Ct.), para. 13), even when it is firmly worded or may contain “strong language” (Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758 (Div. Ct.), paras. 13-15). The public nature of cautions “does not fundamentally alter the preventive, educational and remedial nature of such orders” (Geris, para. 34; Griffith, para. 93; Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), paras. 44-45)
[57] Dr. Maini maintains that the public nature of the caution will threaten his livelihood and therefore attracts a heightened degree of scrutiny. The Applicant asserts that it “has particularly harsh consequences” such as those that “threaten an individual’s life, liberty, dignity or livelihood” as set out by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 133).
[58] A caution in person, however, is a remedial disposition involving a discussion with one’s peers about the conduct at issue. The objective of such a discussion is to improve a physician’s practice and ensure the protection of the public. There is no evidence in this matter that Dr. Maini is at risk of a disciplinary suspension, or of losing his employment. His “perceptions” that an advisory caution may have an effect on his career are insufficient to impose a higher standard of Reasons than would otherwise be required (Griffith, para. 92). . Gill v. College of Physicians and Surgeons of Ontario
In Gill v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered the test and the standard of review for professional discipline penalties:[82] The Appellant has failed to show that the Committee made an error in principle or that the penalty was clearly unfit (R v Lacasse, 2015 SCC 64 at para 39-40). To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances (College of Physicians and Surgeons of Ontario v Pierovy, 2018 ONCA 420 (CanLII)). Deference is afforded to the discretionary decision of the Committee to set a particular penalty (Lacasse, supra at para. 12). . Dr. Luchkiw v. College of Physicians and Surgeons of Ontario
In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered a JR of a disciplinary finding of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO), here regarding issuing COVID vaccination exemptions and related COVID matters. In this quote the court considers the appropriateness of the disciplinary order made: Summary – Suspension Order Was Reasonable
[83] I find that there was ample evidence to support the decision of the ICRC to suspend Dr. Luchkiw’s certificate of registration. The decision was based on evidence that her conduct with respect to IPAC practices and her issuance of a vaccine exemption to immunocompromised patient, exposed, or was likely to expose, patients to harm and/or injury.
[84] The College received multiple reports with respect to Dr. Luchkiw’s IPAC practices and the issuance of a vaccine exemption to an immunocompromised patient. The investigator who attended at Dr. Luchkiw’s office on November 29, 2021, observed deficiencies related to her IPAC practices. There was no signage at the entrance to the office advising that all patients and visitors are to wear a mask and practice hand washing hygiene. The investigator also noted insufficient space for physical distancing, a failure to provide cleanable chairs in the waiting room and there were no tissue and/or paper towel and lined waste receptacles available for disposal.
[85] I also find that the evidence supports the conclusion that Dr. Luchkiw failed to co-operate in the investigation. She took the position, through her counsel, that the College did not have the lawful authority to conduct the investigation. She did not provide the information or documentation requested by the investigators. She did not provide access to her office. I am satisfied that the conclusion of the ICRC, that she was ungovernable and as a result her patients were exposed to harm and/or injury, is reasonable and supported by the evidence.
[86] I conclude that the decision to issue the Suspension Order was reasonable. I am also satisfied that the decision to suspend her certificate of registration was the least restrictive order available to protect the public: College of Physicians and Surgeons of Ontario v. Matheson, at para. 62. The reasoning of the ICRC decision is intelligible, internally coherent and factually grounded. The decision is entitled to deference. . Dr. Jha v. College of Physicians and Surgeons of Ontario
In Dr. Jha v. College of Physicians and Surgeons of Ontario (Div Ct, 2022) the Divisional Court considered whether criminal conviction for domestic violence (albeit with a absolute discharge) was relevant for determining professional discipline of a doctor:[118] The purpose of professional regulation is not to “police the morality” of members of a profession. Rather, the purpose of professional regulation is to maintain professional integrity and professional standards. The purpose of professional discipline proceedings it is to “exercise disciplinary power over members of a profession so as to ensure that their conduct conforms to the standards of the profession”: R. v. Wigglesworth, 1987 CanLII 41, [1987] 2 S.C.R. 541, at pp. 560, 565-566 (quoting from The Doctrine of Res Judicata at p. 566).
[119] It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 CanLII 1694 (ON SC), 1980 CanLII 1964, 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 219.
[120] The degree to which a member’s conduct outside of conduct at their workplace, involving co-workers, or (in the case of medicine) patients, may be the subject of professional discipline proccedings is not limitless. But as I will explain, I find no error in the Discipline Committee’s finding, grounded in the record before it, that the criminal findings in this case are relevant to the appellant’s suitability to practise.
[121] Discipline committees of regulated health professions in this province have consistently found that criminal findings of guilt of assault in a domestic violence context are relevant to a member’s suitability to practise because such conduct displays “poor judgment, lack of self-control, and capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values” characteristic of health professions: College of Nurses of Ontario v. Soriano, 2016 CanLII 102074 (C.N.O.) at pp. 2-3, 4; College of Physicians and Surgeons of Ontario v. Lian, 2013 ONCPSD 1 at pp. 5-6; College of Physicians and Surgeons of Ontario v. Prebtani, 2005 ONCPSD 26 at pp. 3-4; College of Physicians and Surgeons of Ontario v. Sidhu, 2002 ONCPSD 41 at pp. 3-4, 20-21; Ontario (College of Physicians and Surgeons of Ontario) v. Shamji, 2020 ONCPSD 26 at p. 12; College of Nurses of Ontario v. Hough, 2016 CanLII 152838 (C.N.O.); College of Nurses of Ontario v. Sondy, 2012 CanLII 98101 (C.N.O.); see also Law Society of Upper Canada v. Kumarasamy, 2015 ONLSTH 52 at para. 6.
[122] Some of these decisions also find that the conduct is relevant to a member’s suitability to practise based on the fact that in some medical specialities, physicians will be called on to treat victims of domestic violence, and must be sensitive to issues related to domestic violence; and also on the need for the profession to demonstrate to the public that acts of domestic violence by physicians, who stand in a position of trust towards patients, are not condoned by the profession.
|
