Indexed as:

Dr. Q. v. College of Physicians and Surgeons of

 British Columbia

IN THE MATTER OF an intended proceeding in Re: Dr. Q.,

appellant

AND IN THE MATTER OF The College of Physicians and Surgeons of

British Columbia, respondent

[1999] B.C.J. No. 159

1999 BCCA 53

Vancouver Registry No. CA024574

 British Columbia Court of Appeal

 Vancouver, British Columbia

Southin, Donald and Newbury JJ.A.

Heard: December 11, 1998.

 Judgment: filed February 1, 1999.

(16 pp.)

Medicine -- Discipline for professional misconduct -- Hearing -- Publication of reasons for decision, confidentiality -- Statutory appeals -- Ban on publication of names pending appeal.

This was an appeal by a doctor, Dr. Q, from a decision of a Supreme Court judge in chambers refusing his two requests, the first for an order protecting his anonymity during his appeal to the provincial Supreme Court from a decision of the College of Physicians and Surgeons that he was guilty of infamous conduct, and the second for an injunction preventing the College from releasing a summary of the case to the media. In January, 1998, an inquiry committee of the College issued a report finding that Dr. Q had engaged in sexual relations with a patient, behaviour constituting infamous conduct. On March 25, 1998, the council of the College accepted the report and decided that Dr. Q had been guilty of infamous conduct, then imposed certain punishments including suspension. Dr. Q informed the College of his intention to appeal and requested a stay of punishment pending the appeal. The College indicated that it would consider a stay of suspension, but would not entertain submissions on a stay of publication of a media release summarizing the College's disciplinary actions. The College imposed conditions on the doctor's return to practice, including a requirement that he have a chaperon present with all female patients. In April, 1998, the Chambers Judge dismissed Dr. Q's request for a prohibition on release of the summary of his disciplinary proceedings. On May 5, Dr. Q was granted leave to appeal. He argued that the Chambers Judge had erred by failing to balance all the relevant factors and by attaching inordinate weight to the public interest factor.

HELD: The appeal was allowed and the court granted an injunction preventing release of Dr. Q's name to the media pending his appeal. This was a case where the applicant for the injunction, Dr. Q, would suffer irreparable harm if it was refused, and the opposing party, the College, would suffer virtually no harm if it was granted. The public interest was sufficiently met by the protective conditions of practice, and by a timely publication of the discipline proceedings on an unnamed doctor. If the injunction was granted, the public interest in knowing the doctor's name would merely be postponed. If Dr. Q was cleared on appeal, his reputation would not have been ruined in the meantime.

Statutes, Regulations and Rules Cited:

British Columbia Supreme Court Rules, Rule 49.

Court of Appeal Act, ss. 10(2)(b), 18.

Medical Practitioners Act, R.S.B.C. 1996, c. 285, ss. 60(1), 60(2), 60(3)(a), 60(3)(b), 60(3)(c), 60(3)(d), 60(3)(e), 60(3)(f), 70(7)(a), 70(7)(b), 71(1), 71(2); Rule 15.

Counsel:

C.E. Hinkson, Q.C., for the appellant.

D. Martin, for the respondent.

Reasons for judgment were delivered by Donald J.A., concurred in by Newbury J.A. Separate dissenting reasons were delivered by Southin J.A. (para. 26).

1 DONALD J.A.:-- This appeal concerns requests by Dr. Q., a psychiatrist, for two things: anonymity during a Supreme Court appeal from a decision of the College of Physicians and Surgeons that the doctor is guilty of infamous conduct; and an injunction preventing the College from releasing a summary of the case to the media. Both requests were refused by a Supreme Court Judge in Chambers on 30 April 1998: Dr. Q. v. College of Physicians and Surgeons (B.C.) (1998), 159 D.L.R. (4th) 727.

2     On 5 January 1998, after a 4-day hearing, an inquiry committee of the College issued a report which found that Dr. Q. had engaged in sexual relations with a patient and that the behaviour constituted infamous conduct. On 25 March 1998 the council of the College accepted the report and decided that Dr. Q. has been guilty of infamous conduct.

3     In a letter dated 8 April 1998, Dr. Q. was informed that the Council had imposed a penalty of erasure from the Medical Register; transfer to the temporary Register; an 18 month suspension; costs in the amount of $30,400.00; and conditions upon his return to practice.

4     Dr. Q. informed the College of his intention to appeal and requested that the College stay its punishment pending an appeal taken pursuant to s. 71 of the Medical Practitioners Act, R.S.B.C. 1996, c.285. The College indicated that it would hear submissions on a stay of the suspension, but would not entertain submissions on a stay of publication of a media release summarizing the disciplinary action taken by the College.

5     After receiving submissions, the College agreed to stay the penalty pending the appeal on several conditions, including condition that Dr. Q. inform all patients and referring physicians of the disciplinary action and the appeal, and that he have a chaperon present while attending a female patient.

6     Counsel for Dr. Q. asked the College to stay a publication notice of the case. This was declined for reasons set out in a letter from the College's counsel dated 21 April 1998, which says in part:

          With regard to your request to Council to reconsider the issue of the stay of the publication notice, Council considered the submission set out at page 5 of your correspondence. Council confirmed its earlier decision to proceed with publication in this case. It was the Council's view that once the College has concluded its disciplinary proceedings and has found charges to be proven, there is a public interest in notifying the public of that finding. While it is possible, through the use of conditions, to ensure notification to certain individuals, there is a broader public interest which, in the Council's view, is served by publication. It is important that other members of the profession be aware of action taken. by the College with respect to one of its members and that the public generally be aware that such action has been taken. As you may be aware from previous publications, the College will include in any media release or notification that the matter is under appeal by the physician.

[emphasis added]

7     Dr. Q. continues to practice under the conditions stipulated by the College.

8     As part of his appeal to the Supreme Court, Dr. Q. filed a motion for:

(a)     an order permitting him to refer to himself as Dr. Q. for all purposes in his appeal;

(b)     an order that all material filed in support of the s. 71 appeal refer to the appellant as Dr. Q. and the complainant as Ms. T.; and

(c)     an order prohibiting the College from publishing the facts of the conviction and penalty pending deter-mination of the appeal.

The College consented to a stay of Dr. Q.'s penalty pending the s. 71 appeal.

9     As I have said, the learned chambers Judge dismissed the application for the three orders. On 5 May, Mr. Justice Lambert granted leave to appeal to this Court and prohibited the College from publishing the facts of the conviction and penalty pending this appeal: Dr. Q. v. College of Physicians and Surgeons (B.C.) (1998), 50 B.C.L.R. (3d) 298 (B.C.C.A.).

10     In his written reasons the learned chambers Judge referred to a decision of this Court, Roed v. Association of Professional Engineers of British Columbia (1988), 29 B.C.L.R. (2d) 59, where a similar issue arose from disciplinary proceedings against a professional engineer. This decision was influential in the result. After discussing Roed, the learned chambers judge went on to conclude as follows, at 732-33:

I have no doubt that the release of the Inquiry Committee's findings as well as the applicant's identity will cause his serious harm particularly if he is successful in his appeal. It may well be said that if the applicant is successful, his exoneration will indeed be hollow for the damage to his reputation may be irreparable. Concerns similar to these have been expressed with respect to the publication and revealing of the names of persons who are charged with criminal offences. In many cases persons who are charged but acquitted of crimes nevertheless suffered harm to their reputations. However there is a very compelling competing interest here. It is the public interest. The public has a right to know whether a person who is in a position of public trust has been found guilty of misconduct. In recent times there has been increasing public scepticism relating to the findings of disciplinary bodies of self-governing professions and organizations particularly where their decisions impact upon the public. Thus while the confidentiality and reputation of an individual are relevant matters to consider there is an overriding principle of public interest that requires openness. The applicant is in no worse position than others who have been found guilty of infamous conduct and have appealed as well as others who have been charged with criminal offences. With respect I do not think that s. 70(7) of the Act supra, was intended to place the proceedings in a shroud of secrecy.

11     Dr. Q. alleges that the learned chambers Judge erred by failing to balance all the relevant factors and by attaching inordinate weight to the public interest factor.

12     With respect, I think this assertion is correct and the appeal should succeed.

13     As the above quoted passage shows, the learned trial Judge found that Dr. Q. would suffer irreparable harm if the injunction was not granted. He did not make a corresponding finding with regard to the position of the College or the public. He found that the determining factor was simply the public's interest in knowing the details of the case.

14     The principles governing injunctions and stays of proceeding are well known and can be found in the leading case of RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

15     Absent from the analysis in the decision under appeal is any recognition that the College could immediately publish a notice which informs the public of the discipline without releasing the doctor's name. If the appeal fails it could then release the name in a subsequent notice. In that way the public could be assured that the College is doing its job in disciplining members for misconduct while fairly protecting the reputation of a doctor who may succeed in overturning the discipline on appeal.

16     Mr. Martin argued that such an approach could be interpreted as the doctors' protecting their own and might cause the public to lose confidence in the College. That is the only inconvenience or prejudice alleged. However, in my opinion no right thinking member of the public would place such an interpretation on the notice, especially when informed that the public has been protected by special conditions of practice imposed on the doctor while the appeal is pending.

17     As I see it, this is a case where the applicant for an injunction will suffer irreparable harm if it is refused and the opposing party will suffer virtually no harm if it is granted. The public interest is sufficiently met by the protective conditions of practice and by a timely publication of discipline of an as yet unnamed doctor. Thus, a proper balancing of interests did not occur in this case.

18     Reliance on Roed was, with respect, misplaced. The decision at first instance was made by Mr. Justice Taylor, then in the Supreme Court, who held that the Association would fail in its duty were it to suppress the fact of the decision against the engineer. He was concerned that members of the public would place their trust in him unaware of the disciplinary suspension imposed. He observed that a request for a ban on publication was unprecedented.

19     This Court upheld Mr. Justice Taylor's decision. In giving the reasons for this Court, Mr. Justice Esson said, at 62:

If the consequences of the knowledge of the fact of suspension upon knowledgeable persons such as the professional engineers on the staff of large mining corporations is likely to be as devastating to their sense of trust as Dr. Roed anticipates it will, then it seems to me that is a compelling reason why they should have the opportunity to be aware of the fact of this event. Mr. Justice Taylor tested that proposition by considering the question of how the matter would appear to persons who deal with Dr. Roed in the meantime should the appeal fail and who may have been prejudiced by placing their trust in him during that time.

Mr. Roberts has made a persuasive submission that the grounds of appeal are strong. Without the full record of the hearing it is impossible to know whether the grounds are as strong as are suggested, but I will say this: If they are that strong, then those are matters capable of explanation to companies such as Placer Dome Inc. and Teck Corporation and the persons employed by them. But what is sought here is essentially the concealment of the truth. The truth is that a duly authorized disciplinary committee has made findings adverse to Dr. Roed. It may or may not have reached the right conclusion, but those are not the kinds of facts which our society accepts ought to be concealed. I do not say that there will never be cases where an order should be made banning publication. Circumstances are too various to allow one to generalize that broadly, but I think the absence of any precedent is significant. I consider that Mr. Justice Taylor reached the right conclusion for the right reasons and I would dismiss the appeal.

20     Roed can readily be distinguished from the present case. Here, Dr. Q. must inform his patients and referring physicians that he has been disciplined and he must have a chaperon present while attending female patients. In contrast, there was no such arrangement to protect the public in Roed - publication was seen to be necessary to accomplish that purpose. If in the present case an injunction is granted, the public interest in knowing the doctor's name will merely be postponed. If Dr. Q. is cleared on appeal then his reputation will not have been ruined in the meantime.

21     The judges in Roed treated the request for anonymity as unprecedented. Apparently they did not have cited to them the decision of the Alberta Queens Bench in King v. Institute of Chartered Accountants of Alberta (1983), 25 Alta. L.R. (2d) 286 where Justice Purvis restrained the Institute from publishing an advertisement that a member had been struck off. He said at 287:

It is important to the welfare of members of the public who are clients of chartered accountants that the institute maintain its good name and the confidence of taxing authorities and financial institutions.

The confidence inspired by use of the designations C.A. and Chartered Accountant is important to the welfare of members of the public who are clients of members of the institute. This confidence should be maintained.

I am also concerned to protect the appellant from the very considerable damage which would be done to his professional reputation by publication pursuant to the order of the council. It would be unfortunate if this damage were caused by publication following which the Court of Appeal reversed the action of the institute.

22     In a case subsequent to Roed, Madam Justice Roscoe, then of the Nova Scotia Supreme Court (Trial Division), arrived at the same conclusion as King in Shackleton v. Nova Scotia Board of Examiners in Psychology (1991), 103 N.S.R. (2d) 426, at 430:

I find, in considering this application for a stay and looking at the penalties that have been imposed, that the part of the penalty that would create the greatest harm - the harm that I have found that would be irreparable - is the part of the penalty which indicates that the decision of the Board, with respect to suspension, would be published, and published quite widely.

In terms of the other part of the decision, that is, the suspension and terms for reinstatement, I find that if that part of the penalty decision were to stand - in other words, if the stay were not granted on the first and second parts of the penalty decision - that the public interest would be sufficiently protected because Dr. Shackleton would be prevented from saying he is a psychologist. He would be prevented from seeking employment and saying, at the same time, I am a member, I am a registered psychologist in the Province of Nova Scotia. He would not be able to advertise his services as a psychologist in the Province while the suspension was current. And I find that that portion of the penalty is sufficient to protect the public interest.

The other portion of the penalty, that is, to publish, may add greater protection to the public, but it is also the part that causes the greatest harm to Dr. Shackleton if his appeal of the decision of the Board is successful.

So when separating out the parts of the penalty that have been imposed, and looking at them individually, I find, first of all, that the appellant has not met the test when looking at the suspension part of the penalty and the terms for reinstatement. But with respect to the second part or the third part, this is, publication, I find that he has met the test.

I am therefore prepared to order that the application be dismissed with respect to the suspension and terms for reinstatement, but that it be granted, that is, a stay be granted pending the appeal on the part of the penalty decision that deals with publication - all parts of the publication of the notice of suspension of Dr. Shackleton.

23     In the present case, the learned chambers judge drew an analogy to the reporting of criminal proceedings. With respect, I do not think that was appropriate. The legislative regime under the Medical Practitioners Act provides for confidentiality in the disciplinary process, including in camera hearings. There is no parallel in criminal practice and procedure. Rule 15 made pursuant to the Act begins:

15.     All hearings or inquiries shall be held in camera unless the executive committee or the council otherwise directs.

Section 70(7) of the Act provides:

(7)     Subject to the Ombudsman Act, each person employed in the administration of sections 51 to 66, including a person conducting an inquiry or investigation, must preserve confidentiality with respect to all matters or things that come to the person's knowledge or into the person's possession in the course of the person's duties except

(a)     as may be required in connection with the administration of sections 51 to 66 and any rules relating to those sections, or

(b)     as may be authorized by the executive committee if it considers disclosure to be in the public interest.

24     While it may be said that the primary goal of the confidentiality is to protect complainants, I think it is also true to say that doctors are intended to be protected. There is a public interest in not damaging professional reputations unnecessarily. The appeal under s. 71 will take place in open court so it can be seen that justice is done.

25     For these reasons I would allow the appeal and grant an injunction in the terms sought below.

DONALD J.

 NEWBURY J.:-- I agree.

The following is the judgment of:

26     SOUTHIN J.A. (dissenting):-- I have had the privilege of reading in draft the reasons for judgment of Mr. Justice Donald.

27     As he has set out the course of proceedings, I need not do so.

28     The relevant sections of the Medical Practitioners Act, R.S.B.C. 1996, c. 285, are:

60

(1)

An inquiry committee must find the facts, find whether any charge or complaint has been proved and report its findings to the council in writing.

(2)     At any time after it begins taking evidence respecting a charge or complaint, the inquiry committee may of its own motion suspend from practice the member whose conduct is under inquiry until the next council meeting, and must promptly give written notice of the suspension to the member and the registrar.

(3)     If the inquiry committee reports, under subsection (1), that a member has been guilty of infamous or unprofessional conduct, is incapable or unfit to practise or is suffering from a mental ailment, emotional disturbance or addiction to alcohol or drugs that might, if the member continues to practise as a physician or surgeon, constitute a danger to the public, the council may

(a)     erase the member's name from the register,

(b)     suspend the member from practice for a period specified by the council,

(c)     erase the member's name from the register and direct the member's registration in the temporary register under section 38 subject to conditions the council determines,

(d)     impose on the member a fine not to exceed an amount set by rule under section 5,

(e)     reprimand the member, or

(f)      suspend the imposition of punishment and place the member on probation on terms the council specifies.

* * *

70

(7)

Subject to the Ombudsman Act, each person employed in the administration of sections 51 to 66, including a person conducting an inquiry or investigation, must preserve confidentiality with respect to all matters or things that come to the person's knowledge or into the person's possession in the course of the person's duties except

(a)     as may be required in connection with the administration of sections 51 to 66 and any rules relating to those sections, or

(b)     as may be authorized by the executive committee if it considers disclosure to be in the public interest.

* * *

71

(1)

A person who makes a complaint on which an inquiry has been held, or who has been dealt with by the council under section 60, may appeal from the decision or direction of the council to the Supreme Court within one month from the date of the decision or direction.

(2)     On hearing an appeal the court may reverse, alter or amend the decision or direction, order a further inquiry by the inquiry committee or commissioner or make another order, on costs or otherwise, it believes proper, including a direction that a registration struck out be restored or a suspension or probation ends [sic].

29     The Council has determined disclosure to be in the public interest and directed that disclosure.

30     Whether there is any appeal under s. 71 from such a direction is a nice question which I need not decide as the application to the learned judge below was not couched, as I read it, as an appeal from that direction. It was couched as an application to the jurisdiction of the court to grant interlocutory injunctions.

31     Nowhere in the Supreme Court Act or the Supreme Court Rules is there any provision analogous to either s. 10(2)(b) or s. 18 of the Court of Appeal Act.

32     I do not say that the court below had no jurisdiction to make the order sought for it has inherent jurisdiction, unlike this Court, which has no powers save those conferred by statute. Nonetheless, the absence from Rule 49 of the Supreme Court Rules, which is directed to statutory appeals to that court, of any provision concerning stays or interim relief, requires the court below to tread warily when exercising its inherent jurisdiction.

33     Although, in form, the court is not sitting in judgment on the College's decision under s. 70(7), nonetheless, in substance it is, and because that is the substance of the matter, I consider that the concept of curial deference comes into play. I do not say that it comes into play in the way which it does upon judicial review but it must be given, in my opinion, some weight.

34     The decision of the College to publish is neither erroneous in law nor unreasonable. The learned judge below did not see fit to interfere with the decision of the College and I do not think it fit to interfere with the decision of the learned judge below. That being so, I would dismiss the appeal.

35     This is not the case to expatiate on when a decision to publish would be unreasonable. I say only that I do not exclude the possibility that a decision to publish might be found unreasonable if the decision of the inquiry committee under appeal was patently of doubtful validity. As no argument was made to us on the merits of the appeal, this proposition, even if sound, has no application here.

SOUTHIN J.A.

cp/ci/d/lmt/qlcct