Case before College of Physicians and Surgeons of Ontario explores whether Vavilov threshold was met
The Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario is statutorily required to consider a physician’s conduct history when assessing a complaint.
In S. R. v M. A., 2020 CanLII 76776 (ON HPARB), the respondent filed a complaint claiming that the applicant family physician displayed unprofessionalism and lack of care with regard to the patient, who had visited the applicant’s walk-in clinic with his two children, including the respondent. The patient’s children helped with the patient’s interpretation needs because he could not speak English fluently.
The respondent alleged that, after the patient could not tolerate the tongue depressions, the applicant said that he had no time for this, then suddenly left the examination room without offering or suggesting treatment for the patient. The respondent contended that this inhumane behaviour had deterred the patient from seeking other medical assistance despite his illness.
The Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario conducted an investigation then decided to require the applicant to complete a “Specific Continuing Education and Remediation Program,” which would focus on professional communications with patients and other health care providers, and to personally go to the college to be cautioned about his communications and the effects of such communications on the assessment and treatment of the patient.
The committee made note of the applicant’s long and concerning conduct history. The applicant had been subject to numerous complaints to the college regarding his communication skills and his conduct with his patients and staff, which have led to remediation through oral caution, self-directed learning, one-on-one instruction, professional education, practice assessments and monitoring.
Upon the applicant’s request for review, the Health Professions Appeal and Review Board confirmed the committee’s decision requiring completion of the remediation program and personal attendance at the college to be cautioned. The board found that the committee’s investigation was adequate and that the committee’s decision was reasonable.
On the issue of adequacy, the board said that the committee obtained and considered the pertinent medical record, the applicant’s conduct history and information from the applicant, the respondent, the patient and the patient’s son who was also present during the incident. The board said that the applicant did not show that further information, if acquired, might have impacted the decision.
The board noted that because the professional consequences involved would be significant, a high degree of procedural fairness was required. Accordingly, the committee provided the applicant many opportunities to present information and to comment on the committee’s concerns and proposed disposition, the board said.
Regarding the issue of reasonableness, the board discussed the applicant’s conduct history, stating that the committee was statutorily required to consider it. The committee had found that the applicant had an extensive and concerning conduct history and that past attempts at the applicant’s remediation, which did not include direct supervision or an oral caution, had failed to adequately remediate his subsequent conduct and communications. Thus, the board said that it made sense for the committee to require remediation with direct supervision and an oral caution for this case.
The board found that the committee had assessed not only the applicant’s conduct history but also the patient’s and his children’s recollections of the experience. The board agreed with the committee’s determination that the applicant needed more substantial remediation in terms of his communications, given the totality of the information in the record.
The board disagreed with the contention that the committee’s reasoning failed to meet the threshold set by Canada (Minister of Citizenship and Immigration) v Vavilov, in which the Supreme Court of Canada provided guidance on the meaning of reasonableness review. The board stated that the committee had reasonably explained the bases for its decision, which included the factual circumstances, the applicant’s conduct history and its finding that the applicant lacked insight on his own recurrent issues in connection with his communication skills in spite of the previous and ongoing remediation.