July 23, 2019

The need for interim measures to involve the least restrictive means

Administrative Law
Inquiry and Investigations
Professional Regulation

The propriety of an interim suspension during a regulatory investigation, when a registrant is already subject to other interim safeguards, was addressed by the Alberta Court of Queen’s Bench, which stayed an interim suspension imposed by the College of Physicians and Surgeons of Alberta: Kumar v. College of Physicians and Surgeons of Alberta, 2019 ABQB 514 (July 9, 2019).

The need for a suspension arose when the Crown criminally charged a pediatrician with sexual assault and sexual interference upon a minor. [4] The minor in question was not a patient and the charges did not relate to the registrant’s practice. [4] The registrant denied the charges and pled not guilty. CPSA treated the charge as a complaint, [5] and as a result, the registrant gave the college an undertaking that he would attend all patient visits with a chaperone present, until the charges were adjudicated or until other information allowed for a variance of the condition. [6]

After media about the charges, the registrant voluntarily resigned from his clinic and hospital, and obtained work at a new clinic. [8] This led to information that the registrant had left his practice abruptly, and had not been forthright with Alberta Health Services leadership respecting the charges. [9] The college suspended the registrant’s permit to practice medicine. [12] The registrant then sought an interlocutory injunction to stay the suspension order, pending the criminal trial. [39]

The well-known test for such an interlocutory injunction involves three issues: (1) can the registrant show a “serious issue to be tried”; (2) can the registrant show that the interim suspension would result in “irreparable harm”; and (3) the “balance of convenience”, i.e., the “right” of the registrant to practice, weighed against the safety of the public. [13-19]

The court found that the balance of convenience favoured a stay of the interim suspension pending review. Given that prior to the suspension, the registrant would have had “at least two adults in the room while examining a young patient: the patient’s parent or guardian, and a chaperone”, the court decided that “[t]hese steps would eliminate any risk of inappropriate touching….” [22] The court noted that the college “was not able to answer why it would be necessary to have a complete restriction by suspending [the registrant] at this stage of the proceedings for the public safety concern.” [23] The court noted that “the regulatory body should be imposing the least restrictive means to protect the public interest in interim situations and unproven allegations”. [24]

While this case involves an application by a registrant to temporarily stay an additional interim measure pending some determination in the future, the reasoning of the court also points to a need for regulatory bodies to consider, when deciding on interim measures, “whether any measures are currently in place to protect the public” (e.g., Scott v College of Massage Therapists of British Columbia, 2016 BCCA 180, which we blog about here.)

Kumar v. College of Physicians and Surgeons of Alberta, 2019 ABQB 514 (July 9, 2019)

Lisa C. Fong and Michael Ng