September 5, 2010

A finding of misconduct cannot stem from wrongs not in the citation

Administrative Law
Professional Regulation

Certain findings of professional misconduct by a physician, for failing to chart medication dosages to certain patients, were dismissed by the Alberta Court of Appeal as unreasonable where the findings of misconduct were based in part on unrelated evidence of incompetence that the physician was administering certain drug doses at one-tenth the accepted standard dose. The Investigating Committee voiced concerns about this practice in their reasons for convicting the physician, but incompetence was not part of the citation.

In order for incompetence to be used in support of the charge, the court found the proper course would have been for the College to adjourn, declare its intention to investigate, and permit the physician opportunity to prepare an answer: “However alarming, the nature of the new evidence did not justify stripping Dr. Visconti of his right to know the substance of the allegations against him and to prepare to meet them.” The court rejected the idea that allegations of incompetence could be inferred from particulars supporting the charge, which were in the form of a report. Particulars could not substitute a proper charge, and an accused “must not be tried on a charge of which he has not been notified”. Furthermore, the physician was entitled to assume that the portions of the report which did not address the allegations set out in the Notice to Practitioner “would not be addressed at his hearing”.

As a result of some of the convictions being dismissed as unreasonable, both penalty and costs would have to be revisited. “The sentence must fit the crime, rather than include redress for unindicted misconduct.”

Visconti v. College of Physicians and Surgeons of Alberta, 2010 ABCA 250.