April 20, 2011

Panel can assess “sexual” nature of touching based on patient perception, but failure of panel to grapple with credibility (as to how touching occurred) warrants new hearing

Administrative Law
Professional Regulation

In finding a reviewing judge should have deferred to a committee’s interpretation of its College’s bylaws, the Saskatchewan Court of Appeal found a discipline committee entitled to interpret a bylaw as prohibiting a physician from touching a female patient during a respiratory examination in a manner “that may reasonably be interpreted as sexual,” even though not intended to be sexual. [30] The Court of Appeal reversed the original finding, which set aside the discipline decision based on an interpretation of a bylaw (summarized here). See Shamsuzzaman v. College of Physicians and Surgeons of Saskatchewan, 2011 SKCA 41.

The Court of Appeal went on however, to find a defect in the panel’s assessment of the physician’s credibility concerning how he touched the patient during the examination. The patient was one of forty-five patients the physician saw that evening. He did not remember what occurred, but testified he would not have performed an examination in the manner the described. [11] The panel gave no reason for rejecting the physician’s testimony as to his usual practice. [32] As credibility was central to the determination of guilt, “It is not possible to consider the reasonableness of the outcome without knowing why the Committee reached its conclusion regarding credibility.” [37] The court noted that a tribunal “…cannot find that a complaint has been proven because of the lack of memory of the person complained against….” [40] As nothing in the physician’s evidence made his testimony of usual practice inherently unreliable, the reasons failed to provided him with any idea why the committee rejected his evidence. The reasons failed the test of “justification, transparency and intelligibility” and were therefore wholly inadequate. [48] Accordingly the court ordered a new hearing.
Shamsuzzaman v. College of Physicians and Surgeons of Saskatchewan, 2011 SKCA 41, varying 2009 SKQB 45