May 27, 2011

Extraordinary or interim action: where there is no direct evidence of conduct likely to harm or injure

Administrative Law
Inquiry and Investigations
Professional Regulation

Like the extraordinary action power under  s.35 of the BC Health Professions Act, the Ontario Health Professions Procedural Code (which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, chapter 18) provides that an Inquiry, Complaints and Reports Committee (the “ICRC”) can impose terms, conditions or limitations on a certificate of registration if firstly, an allegation is referred to a Discipline Committee, and secondly, the ICRC is “of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.” This is similar language to HPA s.35, which refers to action “necessary to protect the public”. A committee deciding to impose interim or extraordinary measures must, however, decide reasonably, which requires it to have some evidentiary foundation for concluding patients are exposed or likely exposed to harm or injury, and some reason for rejecting evidence contrary to that conclusion.

An Ontario court overturned interim measures ordered by the ICRC of the College of Physicians and Surgeons of Ontario in the Liberman case, where the ICRC did not have any direct evidence of a risk of harm to patients, and expert evidence pointed to the lack of such risk: Liberman v. College of Physicians and Surgeons of Ontario, 2010 ONSC 337, [2010] O.J. No. 227 [QL] (Ont.Div.Ct.). In that case, an anesthesioogist administered anesthesia to a patient during a liposuction procedure, and the patient subsequently died. The ICRC issued an interim order prohibiting the member from performing anesthesia  except in a hospital under the supervision of a certified anesthetist, in effect shutting down his practice. The member sought judicial review.

In assessing the complaint, the College had retained Dr. J to review records. Dr. J opined the member did not meet the standard of practice because he failed to recognize and properly treat post-operational hypovolemic shock. Dr. J declined, however, to express an opinion on whether the member’s conduct exposed or was likely to expose patients to harm or injury, as she only had one patient chart to review. The College then appointed Dr. K during its investigation to look at 55 randomly-selected files. In finding charting issues in 3 of the 55 cases, Dr. K concluded the patients were not exposed to any risk of harm (beyond what is expected from care provided by a competent anaesthesiologist). The member also provided two expert opinions. One opinion concluded the member’s practice did not expose nor was likely to expose patients to harm or injury.  The second opinion of Dr. D went further to opine that the member had met the standard of practice, given the environment and resources available.

While the court agreed it was to consider any interim order “tolerantly” and decide only if (a) the ICRC had a tenable basis for its decision, and (b) the decision fell within the range of what was reasonable, the ICRC “gave no explanation for rejecting the opinion of its own Medical Examiner on the core issue that it was to decide.” [30] In the absence of direct evidence to support the committee’s decision, the committee had to give “some explanation however brief for rejecting all of the evidence that was contrary to its conclusion.” [30] The evidence of below-standard charting, and the opinion of Dr. J (contradicted by Dr. D) that the member failed to react to and properly treat low blood pressure, was “not of itself evidence of probable harm to future patients, nor can it support a reasonable inference.” P33] Accordingly, the ICRC did not have evidence of probable harm, as distinct from evidence of simply below-standard conduct. [34] The ICRC was merely “speculating based in essence on one incident. That it cannot do.” [34]

Additionally, the court found that inclusion of particular documents in the record before the committee not disclosed to the member amounted to his being denied procedural fairness, as the member had no opportunity to respond to that material. [36-38]

Liberman v. College of Physicians and Surgeons of Ontario, 2010 ONSC 337, [2010] O.J. No. 227 [QL] (Ont.Div.Ct.).