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Medical Professionals (RHPA) - Doctors Cases (3). Thibert v. Health Professions Appeal and Review Board [for numbered HPPC cites see link]
In Thibert v. Health Professions Appeal and Review Board (Div Court, 2022) the Divisional Court canvassed some basics of the RHPA/HPPC regime, here regarding doctors:The Process
[6] The College of Physicians and Surgeons of Ontario is responsible for the regulation of the medical profession in Ontario. It does so pursuant to the Regulated Health Professions Act (“RHPA”), the Health Professions Procedural Code which is Schedule 2 to the RHPA, the Medicine Act, 1991, regulations promulgated under those Acts and the by-laws of the College. The Health Professions Procedural Code, s. 10 prescribes the committees the College is to have. They include an Inquiries, Complaints and Reports Committee (“ICRC”).
[7] Where, as here, a complaint regarding the conduct or actions of a member of the College is received by the Registrar, a panel of members of that committee, as selected by its Chair, will investigate or consider a report of the Registrar.[2] In this case there was an investigation. Once an investigation is complete the panel may:1. refer any allegation of misconduct or incompetence to the Discipline Committee,
2. refer the member for incapacity proceedings,
3. require the member to appear before a panel of the committee to be cautioned,
4. take action it considers appropriate that is not inconsistent with the Regulated Health Professions Act, the Health Professions Procedural Code, the regulations or by-laws.[3] [8] In this case only paragraphs 3 and 4 are relevant. Where the decision is made under the authorization of either of those two paragraphs, the member or the person who filed the complaint may request that the Health Professions Appeal and Review Board (“HPARB”)[4] review the decision made by the ICRC.[5] On such a review the HPARB shall consider either or both of the adequacy of the investigation and the reasonableness of the decision.[6] . Nahas v. HPARB
In Nahas v. HPARB (Div Court, 2022) the Divisional Court considered an RHPA complaint against a doctor by a third party (a common law spouse of the patient), and how the patient's privacy rights were addressed in that situation:[40] The applicant submits that the ICRC should not have investigated a “third party” complaint (a complaint from someone other than the patient) and that neither the ICRC nor the HPARB took into account the patient’s interests.
[41] The legislation does not restrict complaints to those initiated by patients. The focus of the complaints process is on the conduct of the physician, which is consistent with the role of the College to regulate the practice of medicine in the service of and protection of the public interest. In Volochay, the Court of Appeal noted this statutory mandate when finding that that College was entitled to continue to investigate a complaint even though the complainant had withdrawn it: at para. 46. The ICRC was well within its mandate to investigate the complaint and took into account the patient’s point of view, noting that she was happy with the treatment that she received.
[42] The applicant also raised issues about the patient’s rights, submitting that the ICRC made no effort to justify the intrusion into the patient’s privacy rights. Leaving aside the issue of whether the applicant can raise those rights, the ICRC specifically noted that it took steps to minimize the amount of medical information in its reasons and the HPARB made a disclosure order protecting personal health information dated September 28, 2018. The HPARB also took steps in this court to protect personal health information. The patient was aware of the ICRC investigation and did not challenge the s. 75 investigation through which the applicant’s records of her care were obtained.
[43] We disagree with the applicant’s characterization that the ICRC “overrided” the patient’s rights rendering its decision unreasonable. The ICRC proceeded to fulfill its statutory obligation to investigate the complaint and both the ICRC and the HPARB took steps to address the impact on the patient’s personal health information. . Nahas v. HPARB
In Nahas v. HPARB (Div Court, 2022) the Divisional Court considered a doctor's JR of the HPARB dismissal of an appeal of an ICRC investigation and decision that he undergo "specified continuing education". The applicant raised the adequacy of the disclosure they received at the ICRC investigative stage as a fairness issue:[30] With respect to disclosure more generally, the extent of the duty of procedural fairness depends on a variety of factors as set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817.
[31] With respect to the nature of the decision being made, the ICRC performs a screening role. It screens complaints and decides if any further action is necessary: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 7416 (Div. Ct.) at paras. 37-38. It is not adjudicating in a formal way. It decides whether a complaint should be referred to a discipline hearing (where it would be adjudicated with considerable procedural requirements culminating in a formal hearing) or some other response should be made.
[32] The ICRC has procedural fairness obligations commensurate with its role. The ICRC must give the member notice of the complaint and an opportunity to make written submissions: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para. 47. Those steps were taken in this case.
[33] With respect to the statutory scheme, the Code contemplates that it is at the HPARB review stage that the applicant receives the complete record of what was before the ICRC. The applicant received that material, including the four documents, and had an opportunity to make submissions about them. At the HPARB, the main issue raised was whether the s. 75 investigation to obtain the medical records gave rise to reporting obligations. That was also the main focus in the applicant’s factum in this court. The applicant abandoned that ground for relief at the outset of the oral hearing in this court.
[34] On the question of whether there was adequate disclosure of the complaint at the ICRC stage, the applicant relies on Volochay, yet that case is not comparable. In Volochay, the member was not given notice of the complaint or an opportunity to respond to it. The complaints committee took steps without any submissions from the member. The applicant also relies on Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.). However, that case began with a notice of termination of employment. The conduct giving rise to the ICRC decision was collected in an investigation and not shared with the member. The applicant also relies on Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), which arose from a s. 75 investigation. In that case, the court noted at para. 12 that “it is adequate at the investigation stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” The inspector had interviewed numerous witnesses and although a summary was provided, it did not make the member aware of the substance of the allegations. The member was not given the names of the people or the details of the conduct discussed with them. These cases were all different in material ways.
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