COURT FILE NO.: 125/03

DATE: 20050302

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Thomas G. Drake, Applicant;

-and-

Royal College of Dental Surgeons of Ontario, Linda Bridge and Health Professions Appeal and Review Board. Respondents.

HEARD: February 15, 2005

BEFORE: Lane, Molloy and Power, JJ.

COUNSEL: D. Andrew Thomson, for the Applicant; David Jacobs and Carrie L. Clynick, for the College and the Board, Respondents; No one appeared for Ms. Bridge.

E N D O R S E M E N T

LANE, J.:

[1] The applicant seeks judicial review of the decision of the respondent Board dated January 30, 2003 finding that the Complaints Committee of the respondent College had conducted an adequate investigation of the complaint made by Ms. Bridge, the complainant, and that the Committee's decision was reasonable. The Committee had found that the applicant had not been diligent in obtaining consent to treatment from the patient, the mother of the complainant, before treating her. It had required the applicant to attend to be cautioned on the need for informed consent, but imposed no other sanction, nor did it refer the matter to the Discipline Committee for any action.

[2] The mother of the complainant was a patient of the applicant. She was 81 years old and resided in a nursing home, to which she had recently moved. She was seen by the dental hygienist at the home and was referred to the applicant for treatment after the hygienist had conferred with the complainant who held a Power of Attorney for Personal Care from the patient.

[3] On July 22, 2000, the patient was taken to the applicant's office by her son Patrick for a 9:30 am appointment. While his mother was in the dentist's treatment room, Patrick waited in the outer office for about half an hour and then went in to see what was happening. Dr. Drake then told him what treatment had been undertaken and asked him to sign a consent document, which Patrick did.

[4] Dr. Drake had last seen the patient in 1999 when he had noted that she had "mild Alzheimers", but she signed the consent to release information herself on that occasion. On July 22, a history was recorded by Dr. Drake in which he noted: she needed cavities filled; she was not in pain; she had come because the hygienist said to come; she was not living on her own anymore; her Alzheimer's and arthritis were getting gradually worse and there were no other changes. He did not have her sign a consent to treatment form. On her return to the nursing home, the staff recorded that she had required repairs to her upper plate and that six fillings had been done.

[5] Dr. Drake had been instructed to send his account to the complainant and he did so. It was not paid. In due course he referred the unpaid bill for collection. About March 21, 2001, the complainant sent her complaint to the College stating that the work had been done without an estimate and without a consent and the fees were too high. She also complained of being harassed by Dr. Drake about the bill, and said she was willing to pay something but not all and would not deal with Dr. Drake directly.

[6] Dr. Drake responded to the Complaint explaining that he had done all the work at one appointment because the patient did not attend the clinic on a regular basis; that he had spoken to Patrick Boyle who did not question the treatment; and that he had called the complainant only once to explain the bill.

[7] The Committee had its investigator review the matter. She obtained relevant information from Dr. Drake, from the nursing home and from Patrick Boyle. She reviewed the hygienist's records. These revealed that the hygienist had observed one cavity requiring work in June 2000, and had recommended an appointment to deal with it and with irritation caused by the patient's plate. Mr. Boyle advised that he had signed a form for Dr. Drake but only after all the work had been done. Much of the work had been done before Dr. Drake even knew that Mr. Boyle was waiting in the office reception area. It was Mr. Boyle's impression that his mother was there to have one cavity filled. He also expressed to the investigator that his mother was not capable of giving consent as her short-term memory was bad and she had Alzheimer's disease. The nursing home records revealed that both the complainant and Patrick Boyle had expressed the family's concern at the cost of the dental work.

[8] The Committee delivered its decision on February 14, 2002. It concluded that the document signed by Mr. Boyle was not signed before the treatment. It said:

The panel is of the opinion that the signing of this document by Mr. Boyle does not constitute informed consent, especially as it was signed after treatment was completed and was not signed by the individual that has Power of Attorney for the patient. The panel therefore requires Dr. Drake to attend before it or another panel of the Complaints Committee to be cautioned. The panel will caution Dr. Drake that when a Power of Attorney situation exists, wherein a patient has legally delegated someone else to make decisions for them with respect to their personal care, the dentist must be vigilant in obtaining informed consent prior to treatment from the individual with the authority to authorize treatment. In this case, it does not appear that Dr. Drake did so and therefore he will be cautioned in this regard.

[9] The Committee found that the fees charged were reasonable and took no further action on that issue. Similarly, the panel considered the mutual charges of abusive calls and found itself unable to make a determination and decided to take no further action.

[10] On March 5, 2002, Dr. Drake requested that the Board review the Committee's decision. The grounds for the request related to the Power of Attorney for Personal Care and the fact that Dr. Drake was unaware of the existence of this document when the patient was brought to him for treatment.

[11] The powers of the Board are to review decisions of the Complaints Committee and to confirm all or part of the decision, make recommendations to the Committee or require the Committee to do anything that the Committee or a panel may do under the Act, except request the Registrar to conduct an investigation. The review is not a fresh or further investigation and no hearing is held. It is to consider the adequacy of the investigation conducted and/or the reasonableness of the decision.

[12] The Board released its decision and reasons on January 30, 2003. It found that the Committee had acquired all the relevant records and the Board was not aware of any additional information that might reasonably be expected to have affected the Committee's decision. It found the investigation had been adequate. It found that Dr. Drake's conduct and actions regarding the acquisition of the patient's consent were problematic. Dr. Drake sought the consent of Patrick Boyle for his mother's treatment. It was reasonable to conclude that Dr. Drake did not feel that the patient was capable of giving the consent herself. It continued:

Given this apparent assessment, and given that consent was sought after treatment from an individual who held no power of attorney when an individual holding one existed, the Committee was entirely reasonable in cautioning Dr. Drake regarding:

a) The need to acquire informed consent prior to the commencement of treatment, and

b) The need to be vigilant in obtaining informed consent from an individual with appropriate authority.

[13] Dr. Drake brings this application to review the Board's findings that the investigation was adequate and that the Committee decision was reasonable. The focus was on the issue of informed consent.

[14] The standard of review of the Board in performing its function as supervisor of the Complaints Committee was not addressed in the applicant's factum and was not seriously in issue before us. This court has previously considered the appropriate standard where the Board is reviewing the disposition of a complaint, which is a non-disciplinary procedure, by the Complaints Committee. In Stanley[^1] the Complaints Committee directed that the physician be cautioned in respect of an inappropriate breast examination. The Board upheld the decision. This court applied the patently unreasonable standard in upholding the Board, but without any analysis as to the appropriate standard of review. In Sigesmund[^2] this court found it unnecessary to determine the specific standard. It said:

In our view, both the Committee and the Board are entitled to considerable deference in their deliberations, both with respect to their determinations as to the facts as well as to the disposition to be imposed. Whether the standard of review is that of "patent unreasonableness" or "reasonableness simpliciter", we see no basis upon which this court can interfere with the decisions under review.

[15] There are several cases which suggest that the appropriate standard of review of this Board in this situation would be reasonableness simpliciter. See: Soremekun v. University Health Network [2004] O.J. No 2196; Detchev v. Ontario (Health Professions Appeal and Review Board) [2004] O.J. No. 2884, (leave to appeal refused [2004] O.J. No.4420)(C.A.); Dr. Q. v. College of Physicians and Surgeons of British Columbia 2003 SCC 19, [2003] 1 S.C.R. 226.

[16] As a Committee of a professional governing body, the Complaints Committee is in possession of expertise, not shared by the court, as to the appropriate standards of professional skill and conduct. As a tribunal appointed by the Province to oversee such Committees, the Board has expertise in the supervision of such bodies. It is composed of members appointed by the Province for renewable three-year terms who are in frequent contact with the relevant legislation. It is not protected by a privative clause. The Board conducts a review, without a hearing, and does not have the advantage of contact with the witnesses, but relies on the investigation of the Committee staff. Nevertheless, its findings of fact, and those of the Committee, are entitled to deference from us.

[17] The question before the Committee, the Board and this court is mixed fact and law. Did the member take adequate steps in the circumstances to obtain the legally effective consent of the patient to the treatment? Since persons are deemed to be able to give such consent unless there are reasonable grounds to doubt capacity, what grounds existed? Such a question is one for which the Board is eminently suited and on this basis as well, its decision should attract deference.

[18] The standard of review is either patent unreasonableness or reasonableness simpliciter. In the absence of full argument on the point, and since it makes no difference in the result, this is not an appropriate case in which to rule on the appropriate standard. Taking the standard that is the most favourable for the applicant, that of reasonableness, we are of the view that the application must be dismissed.

[19] The facts of what occurred are not in serious dispute. The applicant got the patient's son to sign a consent document after the treatment was largely complete. He did not obtain any written consent from the patient herself. He knew that the patient had suffered for some time from Alzheimer's disease and obtained the history that it was getting worse and that she had recently moved from living on her own to a nursing home.

[20] The Committee and the Board found that these facts gave rise to a need to inquire more closely into the capacity of the patient. They found, as noted above, that it was reasonable to infer that the applicant did not feel that the patient was capable of giving the consent herself but began the treatment regardless. This was not appreciating the need to be vigilant to obtain such consent from the proper person.

[21] It was submitted that there was no evidence that the patient was actually not competent. This is true, but it would be more relevant if the applicant had taken her consent and relied on it, which he did not. The argument that the investigation was inadequate because it was not established that the patient was incapable is not persuasive; the issue is whether there were reasonable grounds to alert the applicant that he needed to be more inquisitive on the subject. In his letter of May 31, 2001, the applicant explained the position:

The appointment schedule that I had to follow that day indicated that the hygienist at the Nursing Home reported caries, denture irritation, and heavy plaque. Since the patient was brought into the office, it was natural that necessary work that had been previously explained should be done at that time. The issue of not having informed consent is not reasonable as her son had everything explained to him in a conversation that lasted at least ten minutes, which our employees can verify.

(emphasis added)

[22] This letter makes it very clear that the applicant was not relying on any consent given to him at the time of treatment by the patient. There is simply no basis for thinking that he had raised the matter of consent with the patient. The treatment had been explained previously, that is, by the hygienist, and not by the applicant. Nor is there any indication that the ten-minute conversation included any inquiry into the son's legal capacity to give consent to treatment on behalf of his mother. It may well be that the applicant believed in good faith that in discussing the matter with Patrick, he was doing all that prudence and good practice required. But the relevant legislation and proper standards of practice require more. That the applicant had no actual knowledge of the existence of the Power of Attorney for Personal Care does not assist him. The facts known to Dr. Drake revealed a need for caution and vigilance in obtaining consent and he failed to make the requisite inquiries.

[23] In our view, the Committee and the Board were entirely reasonable in believing that the applicant needed to be cautioned in respect of the obtaining of informed consent from patients where there is doubt as to the patient's capacity to give it herself. They were also reasonable in concluding on the evidence that there were circumstances that created such a doubt and in drawing the inference that the reason for obtaining Patrick's signature was just such a doubt.

[24] In the result, we dismissed the application at the conclusion of the hearing. The Board did not ask for costs and none are awarded.

Lane J.

Molloy J.

DATE: March 2, 2005 Power J.

[^1]: Stanley v. Ontario (Health Professions Appeal and Review Board), [2003] O.J. No. 2196.

[^2]: Sigesmund v. Orprecio, the R.C.D.S and the Health Professions Appeal and Review Board, April 7, 2003, Div. Ct. file 54/2001