January 21, 2011

Lawsuit against Ontario college fails for its publishing a fitness matter in good faith

Administrative Law
Professional Regulation

A lawsuit by a physician for $10 million against the College of Physicians and Surgeons of Ontario for publishing the fact of his being referred to the Fitness to Practice Committee was “struck out” for having no chance of success, in Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324.

In that case, a physician said he discovered and document evidence of “a possible infectious cause for delusional parasitosis in cocaine users that is probably a fungus that lives somewhere beneath the epidermis….” The physician submitted a paper to the Canadian Medical Association Journal supporting his assertion. The College received an anonymous complaint that the physician “believed that worms were coming out of his skin” and alleged that the physician may be incapacitated. The editor of the journal also submitted a complaint to the College, asserting that the physician was “losing his grip on reality” [18]. The registrar investigated the complaints, and the Executive Committee appointed a Board of Inquiry [23]. The physician was assessed by two specialists, who concluded incapacity and/or a delusional disorder, and cocaine dependency, allegedly based on his beliefs, and on scratches on the physician’s skin. The physician asserted, however, that the specialists had been negligent, as they did not properly review his research, testing was negative for cocaine, and the scratches were caused by his cat.

The physician was referred to the Fitness to Practice Committee. His certificate was suspended, however, due to the physician failing to submit his Annual Renewal form in time. [29] The physician re-applied, but the registration committee declined to approve immediately, based on his referral to the Fitness to Practice Committee and reasonable grounds to believe he was incapacitated. [36] The fact of his being referred to the Fitness to Practice Committee was published on the College’s website. The referral to the committee was later withdrawn, however, due to the expiry of the physician’s registration. [133]

The physician commenced two actions, one for negligence and one essentially for libel. The physician later withdrew the claim of negligence. [2] The court found that “none of the records, reports, orders, decisions or other documents” created during the College’s process could be admitted in “in a civil proceeding other than a proceeding under this Act…” pursuant to s.36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Assuming the physician’s allegations to be true, however, the court assumed that the Fitness to Practice Committee and publication of the same occurred after his certificate was suspended, such that the College did not have jurisdiction when it took those steps. The physician’s claim still could not succeed, given College immunity from claims based on good faith actions, pursuant to s.38 of the RHPA. [58-60; 63; 66; 68] No evidence supported a claim of the College acting in bad faith. [75] The court noted the physician admitting, during cross-examination for the College’s motion, that he had conducted research on himself and his cat using cocaine, and that he had smoked cocaine for 18 months, and that he had fed cocaine to his cat as part of his research. [83] Furthermore, suspension of his registration was processed after the Executive Committee referred him to the Fitness to Practice Committee, albeit on the same day.

Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, [2011] O.J. No. 136 (Ont.Sup.Ct.) (January 14, 2011)