COURT FILE NO.: 251/03

DATE: 20040426

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MacFarland, Forestell, Wilson JJ.

B E T W E E N:

DONALD TON CHONG

Applicant

• and -

THE COLLEGE OF PHYSICIANS & SURGEONS OF ONTARIO

Respondents

Counsel: David Cousins, for the Applicant Louis Sokolov, for the Respondent

HEARD: February 17, 2004

By the Court

[1] The Applicant, Dr. Donald Ton Chong, had practised as a general practitioner in the City of Toronto for some thirty years without incident or complaint. In 1999 his practice was chosen to undergo a random audit and peer review by the Quality Assurance Committee of the College of Physicians and Surgeons of Ontario (QAC). After a protracted process, on April 16, 2003, upon the recommendation of the QAC, the Registrar ordered that a condition be imposed upon the Applicant's certificate of registration limiting his practice of medicine solely to surgical assisting for a period of six months. The Applicant seeks judicial review of that decision.

The Issues

[2] The Applicant asserts that the process adopted by the QAC failed to respect principles of natural justice and procedural fairness for several reasons, including:

(a) The QAC failed to appoint a second Review Panel to consider the assessment of Dr. Rudner as required by section 33 of the Medicine Act, 1991 Ont. Reg. 114/94. The Applicant was not afforded the opportunity to be heard before the QAC decided to refer the Applicant for testing at the Competency Assessment of Primary Care Physicians (the PREP Assessment);

(b) The multiple-choice component of the PREP Assessment was not reflective of tests administered to general practitioners, nor was it reflective of his practice.

(c) The PREP Assessment includes an interview and diagnostic component with scripted actors. Dr. Chong asserts that the mock patients in question never made certain complaints, and therefore his diagnosis was not in error.

(d) The College refused to release either the questionnaire administered, or the videotape, to allow Dr. Chong the opportunity to substantiate his position and question the PREP Assessment results by an independent expert.

[3] The Respondent College disagrees with all these assertions, and states, in any event, this application for judicial review is moot, as the six-month terms and conditions have expired.

Mootness

[4] Although the six-month term imposing conditions upon Dr. Chong’s licence expired in October 2003, it is our view, that the issue between the parties is very much alive. The College chose not renew or extend the six-month term. However, the College has advised Dr. Chong in writing by letter dated July 30, 2003 that if Dr. Chong went back into the practice of medicine, in all likelihood the College would initiate disciplinary proceedings against him. The College would without doubt in any future disciplinary proceeding be relying upon the peer review, the PREP Assessment and the recommendation of the QAC, all which is the subject matter of the application for judicial review.

[5] The case law is clear. The test for mootness is outlined in Borowski v. Canada (Attorney General) (1989), 1989 123 (SCC), 57 D.L.R. (4^th) 231 (S.C.C.) at page 239. The doctrine of mootness applies when “the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case”.

[6] In our view, as it is clear that the College contemplates further proceedings relying upon the test results that are subject to judicial review in this application, the case is not moot. The issues are far from academic. A “live controversy” exists between the parties.

[7] In the alternative, if a matter is technically moot, the court may exercise its discretion to hear the case if the circumstances so warrant. See: Borowski at page 239. In our view, if the issue is moot circumstances exist which would warrant the matter proceeding. Dr. Chong has been a respected professional member of his community for over thirty years. He wishes the opportunity to clear his reputation.

The Governing Legislation

[8] Section 33 of the Medicine Act outlines the procedural safeguards that are prescribed if the QAC is contemplating taking action with respect to a member, including physician review, enhancement or imposing terms or conditions. The Executive Committee must be informed and a review panel shall be appointed.

[9] The appointment of a review panel to make recommendations to the QAC is fundamental to ensure procedural fairness. The detailed mandatory safeguards outlined in section 33 are outlined in schedule “A” attached to these reasons.

BACKROUND FACTS AND CHRONOLOGY

[10] In 1999 Dr. Chong was sixty-five years of age. He was practising as a general practitioner with a practice almost completely comprised of patients who are first generation Oriental persons who require geriatric care and who have been his patients in some cases, for as long as he has been in private medical practice His practice had been closed to new patients for some ten years. Over the years he had treated often several generations of patients in the same family. Dr. Chong had never had a complaint to the College in his many years of practice.

[11] The QAC programme was implemented in 1990 by the College as a means of self-governing quality of medical care in Ontario. On a random basis doctors are chosen to undergo a peer review by a member of the QAC. A standard report is completed. If the QAC contemplates taking further action as a result of the peer review, then section 33 of the Medicine Act provides that the matter must be reviewed by an independently constituted review panel to make recommendations to the QAC. The doctor in question has the opportunity to make submissions to the review panel. The review panel may recommend that the physician attend for what is known as a PREP Assessment (Physician Review Program) which is a one-day evaluation session conducted under the Respondent’s auspices at McMaster University in Hamilton. It is, according to the literature, intended that the PREP assessment be a neutral, blind, objective assessment.

[12] According to the College, the QAC and the PREP assessments are intended to be a cooperative system to promote education, and to protect the public. It is distinct from the disciplinary process.

[13] On September 10, 1999 Dr. Wu, the independent assessor chosen by the College, completed a peer review report after a meeting with Dr. Chong in his office, reviewing the facilities, and reviewing on a random basis 32 patient files. Dr. Wu in his report raised serious concerns with respect to the quality of Dr. Chong's record keeping, and documented patient care concerns with respect to four of the patients after the review of the files.

[14] It is not disputed by Dr. Chong that his records were non-compliant.

[15] Dr. Wu’s report confirms that Dr. Chong “almost from the very beginning of the interview … indicated that he felt uncomfortable with the peer assessment process. He stated that his partner’s 10-year long entanglement with the CPSO… had left him with a “bad taste in his mouth”.

[16] Dr. Chong reacted in a very negative way to Dr. Wu's report and wrote a lengthy, emotional, response to the allegations made. He was not represented by counsel at the time.

[17] The QAC met with Dr. Chong on April 18, 2000. The details of that meeting are reflected in the minutes. As the QAC contemplated further action including a PREP assessment, in accordance with section 33 of the Medicine Act, the QAC referred the case as required to a Review Panel.

[18] The Review Panel is independent of the QAC and generally consists of two members of the public and three physicians. Dr. Chong made representations to the Review Panel and questioned the accuracy of aspects of Dr. Wu's report. Dr. Chong acknowledged problems with his written records, but did not acknowledge the accuracy of allegations with respect to deficiencies in his care of his patients.

[19] The first Review Panel report dated October 18, 2000 and recommended that a series of steps take place, primarily focused on record keeping and file management, but did not recommend that Dr. Chong attend a PREP evaluation at that time. The first Review Panel recommended the following:

The Review Panel recommends to the Quality Assurance Committee that:

(a) Dr. Donald Chong should not be required to participate in a physician review program at this time, however,

(b) Dr. Donald Chong must immediately and dramatically improve his record-keeping, and he is encouraged to seek assistance from a mentor, a course or otherwise, and

(c) Dr. Donald Chong should be peer re-assessed in his practice in approximately six months; and

(d) The assessor selected to complete the peer re-assessment should be provided with the peer assessment report, the results of Dr. Chong's interview with the Quality Assurance Committee and the review panel report.

Dr. Donald Chong's re-assessment result will determine for the Quality Assurance Committee whether a physician review program should be required at a later date.

[20] Dr. Chong reported Dr. Wu to the College Disciplinary Committee in October 2000. His complaint was subsequently dismissed as frivolous and vexatious.

[21] After the first Review Panel, Dr. Chong continued his general practice for over a year. He rewrote his files, which admittedly were illegible. He introduced a recommended file organizational system.

[22] On November 5, 2001 Dr. Rudner conducted a second peer assessment at the offices of Dr. Chong.

[23] The second peer assessment confirmed significant improvement in the record keeping and file management. Dr. Rudner wrote “I congratulated him on the improvements noted in his record keeping”.

[24] Dr. Rudner indicated that “Although Dr. Chong’s management of patients suffering from chronic conditions was generally acceptable, there were some specific areas that required inquiry and discussion. Moreover, his management of some acute conditions also needed further inquiry.

[25] Dr. Rudner commented on ten patient files, out of the sixteen he reviewed.

[26] On December 11, 2001, the QAC considered Dr. Rudner's report and determined that in their view, a PREP evaluation was warranted. This is clear from their letter dated January 10, 2002 which states "With due consideration to this on-site peer assessment-and other information before us-the Quality Assurance Committee now intends to require your participation in a physician review program".

[27] QAC then in the letter invited Dr. Chong to attend a meeting to make submissions, although it is clear their decision had already been made.

[28] The QAC did not follow the provisions of section 33 of the Medicine Act, which requires that the executive be informed if a proposed action is contemplated, and a review panel constituted. The College takes the position that the decision to refer Dr. Chong to a PREP assessment had been deferred by the first Review Panel, and that referral to a second Review Panel was not required by section 33.

[29] Dr. Chong attended the QAC meeting on April 30, 2002, and at that meeting Dr. Chong was advised that the QAC required him to take the PREP assessment at McMaster University.

[30] By letter dated May 14, 2002, the QAC wrote to Dr. Chong and informed him of its decision to send him to PREP and the reasons for their decision.

[31] The PREP “Information Guide” was sent to Dr. Chong to explain the process. According to this material, the PREP programme coordinator is supposed to prepare a summary sheet with limited information including the “physician’s name, address, CPSO number, current phone number and fax number.” This limited material is then forwarded to the PREP Programme Coordinator, and arrangements are made for an assessment.

[32] The evidence in this respect is somewhat conflicting. In paragraph 16 of his affidavit, Dr. Chong deposes that the materials forwarded to him by the Respondent indicated that PREP was only informed of the physician’s name, address, CPSO number and current telephone and fax numbers. In support of his statement, he annexes as Exhibit 2 to his affidavit a document entitled: “The Physician Review Program (PREP) Information Guide and Frequently Asked Questions. On the first page of that document in addition to the materials Dr. Chong references, the document clearly states that the PREP office will be informed of the “reason for the referral.” It appears from the document itself that the form was amended January 12, 2001, prior to Dr. Chong’s referral to PREP. However, in paragraph 17 of his affidavit, Dr. Chong swears that nothing in the materials provided to him indicate that PREP would be informed of the reason for his referral. In this respect, he annexes as Exhibit 3 to his affidavit a document entitled “Physician Review Program Physician Orientation Information.” In that document in bold type it provides:

Each physician is assessed by one of his/her peers, who do not know the reason for the referral.

111. Reason for Referral

PREP wants you to know that:

(1) The physician assessor is not advised whether you are a referred physician or a criterion physician.

(2) We request that you do not advise the assessor of the reason(s) for the Assessment.

[33] The materials filed on behalf of the College confirm that indeed the version of the brochure they supplied to Dr. Chong with their letter to him dated May 14, 2002, did not indicate that the PREP would be informed of the reason for his referral.

[34] We are satisfied on the evidence, and the College does not dispute that Dr. Chong was informed that PREP would not be told the reason for his referral. Exhibit 2 to Dr. Chong’s affidavit is not the version of the form that was forwarded to him before his attendance at PREP.

[35] A review of report prepared following Dr. Chong’s PREP states that they had a copy of Dr. Gamble’s letter dated May 14, 2002 to Dr. Chong, as well as a copy of the report to the QAC dated October 18, 2000. They had none of Dr. Chong’s detailed responses to the observed “shortcomings”, which had been noted therein.

[36] The Information Guide states with respect to preparing for the assessment that “As the day itself is essentially an assessment of the individual’s clinical practice performance capabilities, it is not necessary to “study” for the assessment.”

[37] Dr. Chong attended the one-day PREP assessment, and the prep assessment report was released on August 1, 2002.

[38] The PREP evaluation was negative. Dr. Chong scored 43% on the written test. Problems were raised with respect to his ability to conduct a differential diagnosis. His sample charts for his practice were reviewed and criticized. The PREP assessment scored Dr. Chong at a level 5 – that is according to the assessment Dr. Chong exhibited “Critical Deficiency-Immediate Risk to Patient Care”

[39] This designation means that according to the assessment the physician is unsafe to remain in independent practice, and that if remediation is to be considered, a highly structured intensive programme is warranted.

[40] There occurred a meeting between Dr. Chong and the QAC on October 15, 2002 to review the PREP assessment. As action was contemplated placing conditions upon Dr. Chong's licence to practice, the matter was referred to a Review Panel as required by section 33 of the Medicine Act.

[41] A Review Panel hearing occurred on January 9, 2003. They recommended, based upon the PREP assessment, and Dr. Chong's unwillingness to participate in remediation and failure to improve his clinical knowledge, his inconsistencies and his refusal to undergo a cognitive/neuropsychological assessment, that conditions should be placed upon Dr. Chong’s license to restrict him to surgical assisting only.

[42] Dr. Chong met with the QAC on April 14, 2003. He received a letter from the Registrar of the College on April 17, 2003 in accordance with the recommendation of the review panel restricting his ability to practice medicine to surgical assisting for a six-month period.

CONCLUSIONS

[43] Very serious allegations are made against Dr. Chong which have in essence precluded his ability to continue to practise medicine. Clearly the public must be protected, but in this process the requirements of procedural fairness and natural justice must be complied with. Counsel for the College acknowledges that the procedures in question engage procedural fairness and natural justice rights as Dr. Chong's livelihood is at stake, and the proceeding is quasi-disciplinary in nature.

[44] The content of the duty of fairness varies with the circumstances of the particular case. As noted by Lane J. in Megens v. Ontario Racing Commission (2003-04-11) (ON SCDC 127/03) at paragraph 15:

…In discussing the content of the duty of fairness, the Court observed that requirements could vary with the circumstances including how closely the nature of the tribunal process resembled the judicial process, the statute within which it was operating and at page 212, the importance of the decision to the party:

The more important the decision is to the lives of those affected and the greater its impact on that person or those person, the more stringent the procedural protections that will be mandated. This was expressed for example by Dickson J…in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105 at 113, 110 D.L.R. (3d) 311:

A high standard of justice is required when the right to continue in one’s profession or employment is at stake…A disciplinary suspension can have grave and permanent consequences upon a professional career.

[45] We conclude for several reasons that the processing of Dr. Chong's case was flawed and failed to meet these requirements. In our view there were three significant errors which tainted the process. These include:

1. failure to refer consideration of Dr. Rudner’s reassessment report to a Review Panel

2. providing the PREP director with written information that taints the neutrality of the assessment process without providing Dr. Chong’s responses to balance that information. Even more importantly, doing so in circumstances where the physician was informed that PREP would not know the reason for his referral.

3. failing to provide access to the multi-choice question part of the PREP test and the patient video recordings with appropriate safeguards to ensure confidentiality, to allow Dr. Chong to obtain independent opinion about whether the test administered was reasonable and fair to assess the skills and knowledge for a general practitioner. This particularly so where it is clear from the PREP report that their testing was focused on respiratory and endocrine conditions.

1) Failure to Refer Consideration of Dr. Rudner's Report to a Review Panel

[46] In our view the QAC erred in failing to refer consideration of the implications of Dr. Rudner's report to a Review Panel as contemplated by section 33 of the Medicine Act.

[47] The College takes the view that the question of the PREP testing was deferred, and a second referral to a Review Panel was not required.

[48] If as the result of the second peer review, the QAC was of the view that action was necessary, in our view section 33 obligated it to refer the matter to a Review Panel. Referral to the Review Panel ensures that Dr. Chong has the right to be heard. It also ensures that an independent, and neutral panel review the situation. It is a legislated safeguard for the benefit of the physician and it is not open to the QAC to bypass the process.

[49] Dr. Chong had no real opportunity to make submissions before QAC decided their course of action. This particularly in circumstances where the second peer assessment conducted by Dr. Rudner indicated marked improvement in the record keeping and file management and indicated that his patient care was "generally acceptable”.

[50] Dr. Chong, after obtaining legal counsel and after the PREP assessment, prepared a written response to some of the concerns raised by Dr. Rudner. Had there been referral to a second Review Panel, this information could have been discussed to assess whether a referral was in order, in light of the significant improvements made.

[51] According to Dr. Chong, Dr. Rudner had indicated to Dr. Chong that he was surprised that his peer assessment triggered a referral to PREP. This evidence is not disputed by the College. The first Review Panel in October 2000 with a much more damaging peer assessment report, recommended that a PREP referral was not warranted at that time.

[52] The context of the difficulties in the relationship between Dr. Chong and the QAC must not be forgotten. The relationship between Dr. Chong and the QAC was fractious from the beginning. Dr. Chong was not confident in the neutrality and impartiality of the QAC members. Dr. Chong had also complained about Dr. Wu, who he saw as less than impartial. In these circumstances the procedural safeguards must be strictly complied with. The decision of the Supreme Court of Canada in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 110 D.L.R. (3d) 311 is instructive. As the Court noted:

The tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity “for correcting or contradicting any relevant statement prejudicial to their view.”

And further

…he must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them…whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.

2. PREP Test not neutral and independent

[53] The PREP test was designed as an instrument to neutrally evaluate physician performance in 1987, and was implemented in 1990. According to the academic literature, and according for counsel for the College, the prep test is designed as a scientific and neutral objective test.

[54] This literature suggests that the test is designed to be neutral and blind, so that the assessors and the director had no information about the doctor in question, and do not know if the individual is a referred physician, or part of a control group.

[55] We note that the literature provided to us by counsel for the College suggests that the scientific validity and reliability of the PREP Assessment is that it is neutral and blind, and that no information is to be received by the PREP assessor prior to administration of the test. The article entitled “Physician Incompetence: Specific Problems and Predictors” at page 195 of the Supplementary Application Record confirms that “all assessors were blinded to the reason for the referral [to the PREP Assessment] and to the physician’s group of origin”.

[56] In this case selective material was forwarded to the PREP director. Dr. Chong is a general practitioner administering care to older patients often with chronic conditions. Based upon the material sent by the College to the director of the PREP programme, Dr. Chong was administered a test with a special focus upon respiratory and endocrine conditions. Dr. Chong asserts that he was administered a non-standard test from that administered to general practitioners. Rather he was given a test more appropriate for specialists. The emphasis of the written component of the test is confirmed in the PREP evaluation.

[57] It appears that PREP failed to follow their own procedures, to ensure a blind independent and neutral evaluation in this case. We have serious concerns that the College tainted the PREP assessment by providing selective information to the PREP director, who was not the assessor, but who was the author of the PREP report.

3. Failure to Disclose Test

[58] The College refused to disclose to Dr. Chong the written test he completed, or a copy of the video taped patient interviews. Dr. Chong asserts that he wrote the pre-test provided and achieved 100%. He received only 43% for the test administered, which he alleges was more appropriate to specialists, not general practitioners.

[59] As well, Dr. Chong disputes the accuracy of conclusions reached with respect to diagnosis of patients, as he stated that the patient/actors did not follow their script. This assertion can only be confirmed or denied by a review of the video.

[60] The nature of Dr. Chong’s practice is set out in paragraph 10. Whether the scripted actors chosen fairly test the patient group in Dr. Chong’s practice has not been subject of independent evaluation.

[61] We do not accept the suggestion of the College that disclosure could not be made to Dr. Chong, or to his counsel, as the integrity of the test would be compromised in the future. Conditions and limitations could have been crafted to allow Dr. Chong to challenge the validity of the test results, while respecting the confidentiality concerns of the College.

[62] The right to disclosure in this case is a substantive, not merely a procedural right. The effect of the QAC recommendation was to preclude Dr. Chong from practicing medicine in the future.

[63] Dr. Chong's practice had been closed to new patients for some ten years. The public to be protected is therefore, Dr. Chong's existing patients. His patients have responded to the mandatory closure of his practice with an incredible show of support for Dr. Chong. There is a volume of some 300 eloquent letters and petitions that were not considered by the QAC. Counsel indicated that their inquiry is not a "popularity contest". Many of the letters respond specifically to the allegations raised with respect to patient care.

[64] As well, we note that Dr. Chong has not been in practice for almost one year. His patients have been cared for by other physicians. It is of note that not one single complaint has emerged with respect to the appropriateness of medical care given in the past by Dr. Chong.

[65] When considering an allegation of a denial of natural justice including a failure of procedural fairness, a court need not engage in an assessment or consideration of the appropriate standard of review. As the Court noted in London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. 4859 (C.A.) at paragraph 10:

When considering an allegation of denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the Court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The Court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly.

[66] In the final analysis, it is for the Court to say whether in all the circumstances the duty of fairness has been met. As noted by Dickson J. in Martineau v. Matsqui Institution Disciplinary Board 1979 184 (SCC), [1980] 1 S.C.R. 602 at 631:

In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the Courts have sought to answer in all cases dealing with natural justice and fairness.

[67] We conclude that the safeguards of procedural fairness, and natural justice were not respected in the circumstances of this case.

[68] The decision of the Registrar of the College of Physicians and Surgeons of Ontario dated April 16, 2003 imposing conditions upon the certificate of registration of the applicant is therefore quashed.

[69] The applicant is entitled to his costs which we fix, on a partial indemnity basis, in the sum of $15,000.00 inclusive of disbursements and GST.

MacFARLAND, J.

FORESTELL, J.

WILSON, J.

Released: March 16, 2004

COURT FILE NO.: 251/03

DATE: 20040226

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DONALD DON CHONG

Applicant

• and –

THE COLLEGE OF PHYSICIANS & SURGEONS OF ONTARIO

Respondent

REASONS FOR JUDGMENT

MacFarland, Forestell, Wilson JJ.

Released:

Schedule “A” Section 33 of the Medicine Act

33.(1) If the Committee is considering taking action with respect to a member under section (physician review), 30 (physician enhancement) or 31 (imposing terms and conditions), it shall inform the Executive Committee of that fact and of the member's name and shall give the Executive Committee all of the information the Executive Committee needs to be able to comply with this section the disclosure of which is not prohibited by section 83 of the Health Professions Procedural Code. O. Reg. 52/95, s.2

(2) The Executive Committee shall appoint a review panel in respect of each member referred to it under subsection (1). O. Reg. 52/95, s. 2.

(3) The review panel shall consist of five members, of whom three shall be members of the College and two shall be members of the Council appointed to the Council by the Lieutenant Governor in Council. O. Reg. 52/95, s. 2.

(4) In appointing members of the College to the review panel, the Executive Committee shall attempt to apply the following principles:

1. Only members who are familiar with the methods of assessing the clinical ability of physicians shall be appointed to the review panel.

2. If the member under review is certified in a specialty by the Royal College of Physicians and Surgeons of Canada, at least one of the members appointed to the review panel shall be a member who is certified by that College in the same specialty.

3. If the member under review is certified by the College of Family Physicians of Canada, at least one of the members appointed to the review panel shall be a member who is certified by that College.

4. If the member under review is not certified by the Royal College of Physicians and Surgeons of Canada or by the College of Family Physicians of Canada, at least one of the members appointed to the review panel shall be a member who is familiar with the field of practice of the member under review. O. Reg. 52/95, s. 2.

(5) No member of the College who conducted a peer assessment or a peer reassessment of a member's practice or who sat on a panel of the Discipline Committee that heard allegations against a member shall be appointed to a review panel in respect of the member. O. Reg. 52/95, s. 2.

(6) Without limiting the general laws relating to bias, no person who has demonstrated fixed antagonism towards a member or towards a form of treatment offered by a member shall be appointed to a review panel in respect of the member. O. Reg. 52/95, s. 2.

(7) When a review panel has been appointed in respect of a member, the Committee shall notify the member of that fact and shall give the member,

(a) an opportunity to confer with the review panel; and

(b) at least 30 days notice of the date of the conference. O. Reg. 52/95, s. 2.

(8) The Committee shall give the member under review,

(a) at least 30 days before the conference, a copy of all reports and other documents that will be considered by the review panel and that are then available; and

(b) a copy of all reports and other documents that will be considered by the review panel and that are not available 30 days before the conference, as and when they become available. O. Reg. 52/95, s. 2.

(9) A review panel shall review the reports and other documents referred to it, as well as any representations made to it by the member under review, and may recommend to the Committee that the member,

(a) be required to participate in a physician review program;

(b) be required to participate in a physician enhancement program; or

(c) have terms, conditions or limitations imposed on his or her certificate of registration. O. Reg. 52/95, s. 2.

(10) When it makes a recommendation to the Committee, the review panel shall inform the Committee of the grounds for its recommendation. O. Reg. 52/95, s. 2.

(11) On receiving the recommendation of the review panel, the Committee shall give the member,

(a) notice of the review panel's recommendation and the grounds for it; and

(b) a copy of all reports and other documents that will be considered by the Committee in deciding the action to be taken with respect to the member and that have not already been given to the member under subsection (8). O. Reg. 52/95, s. 2.

(12) The Committee shall give the member at least 14 days from the provision of the notice and the documents under subsection (11) in which to make written submissions to the committee. O. Reg. 52/95, s. 2.

(13) If, after considering the member's written submissions, if any, the Committee is of the opinion that the member should be required to participate in a physician review program or a physician enhancement program or should have terms, conditions or limitations imposed on his or her certificate of registration, the Committee shall give the member,

(a) notice of the action the Committee is considering taking;

(b) an opportunity to confer with the Committee; and

at least 14 days notice of the date of the conference. O. Reg. 52/95, s. 2.