January 13, 2014

Proof of professional standards

Administrative Law
Professional Regulation

Where professional misconduct is at issue, a hearing panel may need to determine the applicable standards of practice of the profession. Often, the standards are expressly set out in a regulator’s bylaws, standards or code of ethics. Where, however, a regulator has not promulgated applicable standards, a hearing panel can ascertain the applicable standard by looking to evidence of a common understanding within the profession as to the appropriate conduct of a reasonable professional, or by deducing a standard from the profession’s fundamental values. A panel may not however formulate a standard on the basis of the panel members’ own opinions.

A recent Ontario case illustrates these principles in Yazdanfar v. College of Physicians and Surgeons of Ontario, 2013 ONSC 6420. The court upheld as reasonable the findings of a hearing panel about a standard of practice applying to liposuction. The court applied law set out in Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11, (2010) 317 D.L.R. (4th) 152 (N.L.C.A.) (“Walsh”), where the Newfoundland and Labrador Court of Appeal noted that a finding of professional misconduct requires reference to ascertainable standards arising from either written standards of practice, or alternatively, evidence as to the applicable standard within the profession (at para. 13 of Walsh).

Background: The complaint issues included allegations of failure to maintain the standard of practice with respect to the care of three liposuction patients in 2007 and 2008, along with a number of other allegations. [5]

The guidelines produced by the American Society of Plastic Surgery (ASPS) permit a maximum extraction volume of 5000 cc’s of total aspirate (including fat). [27] The registrant relied on different guidelines of the American Academy of Cosmetic Surgery (AACS) guidelines, which permit 5000 cc’s of fat (and therefor a greater amount of aspirate) to be extracted. [27]

Hearing Panel Decision: After a 68-day hearing, the Committee upheld many allegations against the registrant. [7] Respecting the standards of practice for liposuction, and specifically about standards on ‘extraction volume’, the panel held that the registrant had breached the standard of practice by routinely exceeding the maximum allowable extraction volume in a liposuction procedure, [26] based on the guidelines produced by the ASPS. [30] Various experts testified to the ASPS guidelines reflecting the standard in Ontario.

Decision of the court: The registrant argued that the hearing panel had erred, for lack of any “clearly ascertainable” standard of practice with respect to liposuction that had been clearly communicated to those who were to be governed by it at the time of the breach. [23] He argued that the Committee unreasonably accepted the ASPS guidelines as reflecting the applicable standard of practice, instead of the guidelines published by the AACS. [26] As no guidelines were set out in advance by the College, and the College knew or should have known that she treated the AACS guidelines as representing the applicable standard of practice, it was unreasonable for the Committee to treat the ASPS guidelines as binding. [32] The registrant submitted that the College had never made any written statement that the ASPS guidelines were the applicable standard of practice. [33] She also submitted that another order (the “Anderson Order”), made in relation to another doctor in 2007, was inconsistent.

The court rejected the registrant’s arguments, as standards of practice do not have to be grounded in formal written guidelines articulated and promulgated by the regulator in advance. [34] The previous order of a hearing panel of the College, the Anderson Order, was not an articulation of a standard of practice made to the registrant, or to the profession in general. [38] The court found that the Committee’s decision about the applicable standard of practice in Ontario being the standard for maximum extraction set in the ASPS guidelines was reasonable. [45]

The court endorsed a statement in Walsh (at para. 48) that a standard of practice exists even when it is not explicitly set out in written code, and that a tribunal may ascertain it “by reference to evidence of a common understanding within the profession as to expected behaviour of a reasonable professional, or by deducing it from the profession’s fundamental values”. [36] But the reasons of Chief Justice Green in Walsh also cautioned that a specialized tribunal could not say that “the standard is whatever we say it is” or “formulate a standard based on their own opinion of what they personally think best practice to be” (at para. 42).

The Walsh and Yazdanfar cases together illustrate that a regulator may prove unwritten standards of practice through evidence of standards within the profession, but this proof requires evidence from witnesses, and cannot be based on the personal knowledge of panelists.

Yazdanfar v. College of Physicians and Surgeons of Ontario, 2013 ONSC 6420