College of physicians and surgeons of Ontario v. Porter, 2003 CanLII 44348 (ON SCDC)

COURT FILE NO.: 766/02

DATE: 20030710

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, SOMERS, GREER JJ.

B E T W E E N:

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Donald Poslun, for the Respondent,

Respondent

• and -

DR. PAUL MICHAEL PORTER

J. Thomas Curry and Nina Bombier, for the Appellant

Appellant

Heard: April 28 and 29, 2003

GREER J.

DISSENT IN PART

1I have reviewed the Reasons for Judgment of my colleague, Mr. Justice Somers, in this Appeal, and agree with all the conclusions and findings therein, except with respect to the Complaints Committee’s finding that Dr. Porter was incompetent. This finding was not overturned on Appeal in Mr. Justice Somers’ Reasons. With respect, I disagree in this regard and would overturn the Committee’s finding respecting the issue of incompetence. In my view, while it is proper for the Committee to find that Dr. Porter was negligent or that he showed a serious lack of judgment, in the manner in which he dealt with his files and spoke of personal matters to these patients, the term incompetence is not applicable to his ability to continue in his specialty as a psychiatrist.

2The term “Incompetence” is defined in Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18, in the Health Professions Procedural Code. It reads as follows:

52. (1) A panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment or disregard for the welfare of the patient of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted.

3Under subsection (2) thereof, the member’s certificate can be revoked or suspended or have terms and conditions imposed on it. To make such a finding of incompetence, the evidence must be clear, cogent and convincing. It is the position of Dr. Porter that in making such a finding, the Committee is really saying that he is a person who cannot be relied on to continue in his profession in the future. Such a finding of incompetence is not generally intended to look at an act in the past, but to look to the future and determine what will happen there. To look at this in the past would mean that there was no way for Dr. Porter to move forward.

4Counsel for Dr. Porter has told the Court that there is not another case like this one in any jurisdiction in the country, where such a conclusion is drawn after the Committee has found Dr. Porter not guilty of sexually abusing the two patients who lodged the complaints. Further he was found not guilty of breaching confidentiality. I cannot see where Dr. Porter has failed in a substantial way to appreciate the elements of his professional responsibility within the meaning of s.52(1).

5Dr. Porter was, previous to these complaints, a member in good standing in his profession. There were no incidents of misconduct in the past, and yet the penalty levied against him came close to revocation. We all agree that the penalty was far too harsh and have reduced it accordingly. Dr Porter, in the meantime, has taken the courses on record-keeping and boundaries, as he was asked to do. Further, the prosecution did not ask for a finding of and a conclusion of incompetence. The Committee even withdrew their initial charge that Dr. Porter had failed to meet the standard of his profession. The Committee therefore, in my view, should not have made up a factual basis for a charge that was not argued by the prosecutor. No expert was called by the College to say what conduct is considered “incompetence” in the profession. Therefore, the Committee, in my view, erred in thinking that it was open to them to come to that conclusion.

6It must also be noted that even though Dr. Porter failed to keep all of these two patients’ records in order, there is no evidence that this in any way impaired their treatment going forward with new doctors. The evidence is clear that these two patients, one diagnosed with DID and the other BPD, were extremely difficult, with one being more difficult than the other to treat. The evidence is that Dr. Porter was not the first psychiatrist to treat the most difficult one, and that others had also found her difficult to treat. In fact, Dr. Grumac, in evidence said that this patient may be untreatable. In retrospect, it was perhaps not wise on Dr. Porter’s part to take on these two difficult patients at once. Hindsight always helps, but the fact remains that he did his best to treat them and no finding of incompetence was made by the Committee, as to Dr. Porter’s clinical care with respect to these two, within the meaning of the Act.

7In Bayan v. College of Physicians and Surgeons of Ontario, [1993] O.J. No.946, Action No. 465/90, (Ont. Div. Ct.), the Court found that where incompetence was alleged, the College should have conducted a fitness hearing. There the Court saw such a hearing as both “the proper legal route” and to also be “the humanitarian route.” In reaching their conclusion, the Court held in paragraph 3 of their conclusions, the following:

In my view, “incompetence” carries with it a connotation of “mea culpa” – e.g. (i) voluntary ingestion of alcohol/drugs to the degree that renders the doctor incompetent to provide proper care to the patient, (ii) failure to “stay current”.

This definition cannot be applied to Dr. Porter’s care.

8In Re Singh and College of Nurses of Ontario (1981), 1981 1717 (ON SC), 123 D.L.R. (3d) 713 (O.C.J. Div. Ct.), the Court looked at the issue of incompetence as alleged against Singh in relation to the actual treatment and care of patients, and noted that the allegations were consistent with the findings in respect of the evidence before the Committee. In the case at bar, this just is not so, as I have noted above.

9In Arnold (Re) [1998] O.C.P.S.D. No. 7, a case involving a physician, where failure to maintain records and incompetence were also alleged, the Committee heard from 23 patients and 5 expert witnesses. There the Committee found at p.43, that in dealing with the issue of incompetence, the “Committee was aware that it was making an assessment of Dr. Arnold’s fitness to practise today, based on his past conduct.” They were also aware of the seriousness of such a finding. At paragraph 211 on p.42, the Committee found Dr. Arnold to be fundamentally an ungovernable doctor, whereby he refused to abide by the standards of the jurisdiction in which he worked and found his behaviour to “be alarming”. None of this is the case before us with Dr. Porter.

10Even in Dobrowoski (Re) [1995] O.C.P.S.D. No. 12, the Committee noted in paragraph 68 on p.13 of its Decision, that in order to find incompetence, “there must be evidence of current behaviour that is considered incompetent. No such evidence was presented.” The Committee went on to find that there was no incompetence found and noted that boundary violations were not sufficiently egregious to warrant a finding of incompetence. In my view, this is what the Committee examining Dr. Porter’s conduct ought to have found. “Incompetence” is defined in R. Steinecke’s A Complette Guide to the RHPA (Canada Law Book Inc.; Aurora, 2002) as:

Incompetence is different from misconduct. It generally does not involve unethical or dishonest conduct. Rather it refers to some status or condition of a practitioner which makes him or her unsafe. That status or condition must be assessed on the basis of the practitioner’s care of one or more patients. While the status of incompetence can be based upon conduct that occurred years ago, the discipline committee probably should be satisfied that the practitioner is currently incompetent.

11Steinecke then, in following the definition in the Code, goes on to point to the three requirements for finding a practitioner to be incompetent, namely that the incompetence must be clinical and relate to his or her professional care of a patient. Secondly, the incompetence must relate to a deficiency, that is lack of knowledge, skill or judgment or a disregard for the welfare of a patient. Thirdly, the incompetence must be sufficiently serious and of such a nature or extent as to demonstrate that the practitioner is unfit to continue to practise or that the member’s practice should be restricted.

12I therefore find that Dr. Porter has been incorrectly found by the Committee as incompetent, based on the analysis above in that it misapprehended the evidence or failed to properly apply it in its finding of incompetence. I would therefore reverse their finding in this regard. In all other respects, I concur with my colleagues.

GREER J.

Released: July 9, 2003

COURT FILE NO.: 766/02

DATE: 20030709

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, SOMERS, GREER JJ.