COURT FILE NO.: 139/08

DATE: 20090928

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, SWINTON AND LOW JJ.

B E T W E E N:

Dr. David C. McKee

Applicant

• and -

The Health Professions Appeal AND Review Board, the College of Physicians and Surgeons of Ontario and Sharon Veran

Respondents

Matthew Sammon, for the applicant Dr. McKee

David P. Jacobs, for the Health Professions Appeal and Review Board

Vicki White, for the College of Physicians and Surgeons of Ontario

No one appearing for the respondent Sharon Veran

HEARD AT TORONTO: June 29, 2009

JENNINGS AND LOW JJ.

1This is an application for judicial review of a decision dated February 22, 2008 of the Health Professions Appeal and Review Board (the Board) which overturned the decision of the Complaints Committee of the College of Physicians and Surgeons of Ontario (the College) to take no further action in respect of a complaint made by the respondent Sharon Veran (the Complainant) against the applicant, Dr. David C. McKee.

The decision under review

2The Board held that the investigation of the complaint by the College was inadequate. It remitted the matter to the Complaints Committee, requiring it to further investigate and it recommended that the investigation include interviewing Dr. McKee and other persons.

3The Applicant seeks an order quashing the Board’s decision. His position is that the Board’s decision is fatally flawed because:

(a) it failed to consider and apply the appropriate standard of review and substituted its own discretion in the place of that of the College;

(b) it misapprehended its own role and that of the Complaints Committee of the College;

(c) it made factual findings that it had no jurisdiction to make and in the absence of evidence;

(d) it drew inferences from the available record which it had no jurisdiction to draw and which were patently unreasonable;

(e) it conducted its own investigation and admitted new and fresh evidence without jurisdiction.

STANDARD OF REVIEW

4The parties disagree as to the standard of review. We are of the view that the standard is that of reasonableness. The issue of the appropriate standard of review to be applied to decisions of the Board has been determined in prior decisions of the Divisional Court. In Botros v. Beadle, [2007] O.J. No. 3156, 228 O.A.C. 75 at para. 33, this court stated:

Applying the pragmatic and functional approach to determine the standard of judicial review, and considering the cases to which we were referred, I conclude that the standard of review of the Board's decision is at least reasonableness. It has specialized knowledge, experience and skill in analyzing the proceedings of Complaints Committees about professional conduct and determining the reasonableness of their disposition of complaints. The primary objective of the professional Colleges and their Complaints Committees is to protect the public interest by regulating the practice of the profession in question and the legislative mandate of the Board is to review their work in the public interest. That is not a task for which "correctness" could be required. It is not necessary on the facts of this case, to determine whether "reasonableness" or "patent unreasonableness" should be the standard.

5Although Botros v. Beadle was decided before Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, there is no basis for revisiting the rejection of correctness as the standard of review of a Board's decision of this nature—namely its assessment of the adequacy of the investigation undertaken by the College. As the distinction between reasonableness simpliciter and patent reasonableness is no longer significant, we conclude that the standard of review is reasonableness.

the underlying facts

6The incident which gave rise to the complaint was an attendance by the complainant’s son, Richard Goodman, aged 35, at the Emergency Room at the Thunder Bay Regional Health Services Centre on October 4, 2005. Mr. Goodman presented at 2100 hours with a worsening cough and diarrhea. He had a history that included alcohol and narcotics abuse.

7The applicant saw Mr. Goodman and ordered blood work, a chest X-ray and an electrocardiogram. He diagnosed right lobe pneumonia and gave Mr. Goodman azithromycin along with a four-day prescription for the same. Mr. Goodman was discharged home. Unfortunately, Mr. Goodman died six days later. Cause of death was determined to be pneumonia. He did not return to the hospital for further treatment in the six intervening days between his attendance at the Emergency Room and his death.

THE COMPLAINT

8The complainant lodged a complaint which was received by the College on November 7, 2005. The complaint is set out in full below:

Re: Patient—Richard Louis Goodman

On October 4, 2005 Richard Louis Goodman was brought to Thunder Bay Regional Hospital Emergency by his brother Paul Goodman. Richard was seen by Dr. David McKee.

I am Ricky’s mother. I am concerned about the physician’s behaviour because my son was treated with such contempt and prejudice by this doctor that when he got sicker he would not return to Emergency because he felt he would not help him. Ricky was an Aboriginal Aloholic/drug addict. I am sure Emergency has seen many patients like him and will see many more. Ricky was so sick he could not even hold his head up and could barely speak. Dr. McKee gave him a prescription for 4 antibiotics and told him to “go home and continue his lifestyle.”

My family spoke to the Coroner Dr. Scott. As expected we were told that according to records and hospital guidelines Ricky wasn’t sick enough to be hospitalized, Ricky died 6 days later. I think that speaks for itself. Pneumonia is listed as cause of death. It should say contributed to by the callous indifference and prejudice of Doctor and ER staff.

I have not spoken to this doctor nor do I wish to. I have written to him and his staff and to the CEO of the hospital as well as the Ontario Human Rights Commission.

DISPOSITION BY THE COLLEGE

9The Complaints Committee of the College of Physicians and Surgeons is a tribunal composed of physicians and lay members. It is established under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the RHPA). It is charged with investigating complaints concerning members of the College. The Complaints Committee deals with a very large number of complaints annually. According to its Annual Report, in 2006 it investigated 2364 public complaints and rendered 1033 decisions.

10Section 25 of the Health Professions Procedural Code, (Schedule 2 to the RHPA), requires a complaint received by the College to be investigated by a panel of at least three members of the Committee.

11Section 26 of the Code provides that a member who is the subject of a complaint may make written submissions to the panel.

12Section 26(2) of the Code sets out the powers of the Complaints Committee:

(2) A panel, after investigating a complaint regarding the conduct or actions of a member, considering the submissions of the member and considering or making reasonable efforts to consider all records and documents it considers relevant to the complaint, may do any one or more of the following:

1. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint.

2. Refer the member to the Executive Committee for incapacity proceedings.

3. Require the member to appear before the panel or another panel of the Complaints Committee to be cautioned.

4.Take action it considers appropriate that is not inconsistent with the Health Profession Act, this Code, the regulations or by-laws.

13The nature of the powers conferred upon the Complaints Committee is indicative of its role in the statutory scheme: it has no power to make determinations or findings of fact concerning incompetence, incapacity, failure to meet standards or professional misconduct. Rather, its role is to screen complaints and to stream them. By reason of its composition and the ambit of its jurisdiction, the Complaints Committee is a specialized body having particular sensitivity and experience with issues that arise in complaints concerning members of the College. As well, it is apparent from the powers conferred by the legislation that the Complaints Committee is vested with the discretion as to where and how to allocate the College’s resources in dealing with complaints it receives.

14A panel of the Complaints Committee investigated and considered the complaint and documents related to it: the complainant’s letter of complaint, Dr. McKee’s response letter in which he explained his treatment decisions, Mr. Goodman’s patient records from the hospital and the Coroner’s post-mortem report. The College investigator also placed telephone calls to the complainant to allow her to clarify her concerns.

15In its reasons, the Committee identified two areas of concern arising out of the complaint: (a) whether there was a failure to provide proper care in the management of Mr. Goodman in not admitting him to hospital and (b) whether there was unprofessional behaviour in telling Mr. Goodman to go home and continue his self-destructive lifestyle.

16In his response letter, Dr. McKee set out the clinical findings that informed his decision to discharge Mr. Goodman rather than admit him as an inpatient. Those findings are not set out here as neither they nor the decision not to admit Mr. Goodman are in dispute in this application. Mr. Goodman was discharged at 0005 hours to return if signs and symptoms were to increase.

17Dr. McKee addressed the complaint’s second area of concern thus:

Mr. R. Goodman’s mother writes “he was treated with contempt and prejudice” which is absolutely not true. I have lived in North Western Ontario for most of my life, ranging from rural towns [Longlac] to urban centers where I reside now and have enjoyed a very good relationship with our Aboriginal people and communities.

His ‘lifestyle’ of drug and alcohol abuse is definitely a contributing factor to his illness but at this time did not mandate that we admit Mr. Goodman to hospital. In my duty as a practicing physician, I tell patients this and recommend that they should stop the lifestyle of drug and alcohol abuse, and feel that this communication was misunderstood.

18In its decision dated April 2006, the Complaints Committee stated that it did not find the applicant’s assessment and treatment of Mr. Goodman to be deficient in any way. Dr. McKee took a history, did a physical examination, documented his findings, ordered a thorough work-up, reviewed the results and arrived at a reasonable treatment plan for the probable pneumonia which had been identified.

19With respect to the second area of concern, the Complaints Committee wrote:

As to the allegation that Dr. McKee told Mr. Goodman to “continue his lifestyle”, there is no evidence in the file confirming that the remark was ever made. It is denied by Dr. McKee, who said he referred to Mr. Goodman’s alcohol and drug abuse only in the context of urging him to give it up—which would not have been inappropriate. It is often difficult for the Committee to reach definitive conclusions on communications issues, since human communication is both verbal and non-verbal, and is affected by such things as context, tone, word choice and body language, most of which cannot be accurately recalled or reported at a later date. In this instance, of course the difficulty is further compounded by the fact that Ms Veran was not present to witness the physician-patient interaction. Nor does the file yield any evidence suggesting that Dr. McKee otherwise exhibited indifference or prejudice, and the doctor has specifically denied that he did so. Indifference or prejudice could, of course, be manifested in the very quality of a doctor’s assessment and treatment but in this case, we have indicated our view that Dr. McKee’s assessment and treatment were appropriate. It is possible that (as Ms Veran alleged), Mr. Goodman did not return to the E.R. because he felt Dr. McKee had treated him shabbily; though we have no way of corroborating that Mr. Goodman did feel this and, even if he did, that any such belief was reasonably founded. It follows that we also cannot know whether Mr. Goodman chose not to return to the hospital because of any such belief. It is also not impossible that matters unfolded just as Ms Veran (with doubted sincerity) has alleged; but where we lack evidence to confirm an allegation, we are not prepared to chastise the physician. Simply for clarity, and in accordance with our common practice, we take this occasion to reaffirm our expectation that all physicians will treat patients in a manner which is professional, non-racist, sympathetic and kind.

20The Complaints Committee’s disposition was therefore to take no further action with respect to the complaint.

21On July 18, 2006, the complainant sought a review by the Board of the Complaint Committee’s disposition.

THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD (THE BOARD)

22In contrast to the composition of the Complaints Committee of the College of Physicians and Surgeons, the Board is comprised of lay members, none of whom can have been a member of a College as defined by the RHPA. The Board has a limited jurisdiction to review decisions of the Complaints Committees. Pursuant to sections 29 and 33(1) of the Code, a complainant or College member has an automatic right of review by the Board, which will consider either or both of:

(a) the adequacy of the investigation conducted; or

(b) the reasonableness of the decision.

23The Board has no jurisdiction to conduct its own investigation, admit evidence, or make findings of misconduct against a member of a College. Having completed its review, the Board may do one of the following:

(a) confirm all or part of the decision;

(b) make recommendations that it considers appropriate to the Complaints Committee;

(c) require the Complaints Committee to do anything that the Committee or panel may do under the Health Profession Act and this Code except to request the Registrar to conduct an investigation. (Code section 35).

24Pursuant to the complainant’s request for a review of the College’s disposition of her complaint, the Board conducted a review on November 15, 2007. The complainant did not appear at or participate in the review. (Similarly, she did not appear or otherwise take part in this application for judicial review.)

25By reasons released February 22, 2008, the Board concluded that the investigation was inadequate and ordered the matter returned to the College for further investigation.

26The Board criticized Dr. McKee’s written response to the complaint and concluded that further investigation was required into his credibility. The Board was particularly critical of Dr. McKee’s use of the word “lifestyle” when referring to Mr. Goodman’s apparent addiction to alcohol and drugs. At paragraph 21 of the reasons, it stated,

Finally, his repeated reference to the “lifestyle” of drug and alcohol abuse suggests the he viewed the condition of Mr. Goodman as a choice. The Respondent himself refers to Mr. Goodman’s “drug abuse and addiction.” A physician should be able to distinguish between an addiction and a “lifestyle”.

27The Board agreed with the Committee’s conclusion that Dr. McKee provided appropriate medical care to Mr. Goodman but concluded that it was nevertheless possible for a physician to provide appropriate care and yet treat the patient with “callous indifference and prejudice”.

28The Board observed that there is nothing in the written record which would allow for a “definitive conclusion” as to what was said and it held that the Complaints Committee should have interviewed Mr. Goodman’s brother Paul and all nurses on duty the evening Mr. Goodman was treated by Dr. McKee.

Standard of Review to be applied by the board

29Although we were referred to no decision dealing with the standard of review that the Board is to apply in assessing the adequacy of an investigation by the Complaints Committee, we are all of the view that the standard is reasonableness and that deference should be extended.

30The Complaints Committee is a specialized tribunal. The investigative power given to it is discretionary in nature. In assessing the reasonableness of investigations conducted by Human Rights Commissions, this court has held that deference must be given to administrative decision makers to assess the probative value of the evidence and to decide the extent of the investigations required. [See Razack v. Ontario (Human Rights Commission) [2007] O.J. No. 4360].

31Although in this case the Board did not directly address the standard of review that it should apply when considering the adequacy of the Committee’s decision, we are prepared to find in the language of paragraph 16 of its reasons that the Board had a reasonableness standard in mind.

Analysis

32The difficulty with the Board's decision is that having apparently appreciated that it owed deference in its review of the Committee’s decision, the Board failed to extend it. The question the Board ought to have asked is whether the Committee exercised its investigative discretion reasonably having regard to the Committee’s function as a screening process to determine how and in what manner the particular complaint should be dealt with.

33As is apparent from the powers conferred on the Complaints Committee under the Code, the nature of complaints that arise and which are to be screened by the Committee is wide ranging and includes issues of incapacity, incompetence, negligence and moral turpitude as well as allegations of unprofessional conduct of an attitudinal nature as was the case in this complaint.

34The question as to the adequacy of investigation that was properly before the Board was whether the investigation undertaken was reasonable in the circumstances.

35What the Board did was to make its own assessment of the complaint and then criticize the Committee’s investigation for its failure to interview witnesses that the Board thought appropriate in order to arrive at “… a determination of the credibility both of [the complainant] and [Dr. McKee].…” (emphasis added)

36Here the Board appears to misconstrue the Complaints Committee’s role. It is not an adjudicative tribunal. It cannot arrive at findings of fact. It is not the role of the Complaints Committee to determine credibility. To repeat, the Committee serves a screening function to determine whether a complaint should proceed to the adjudicative tribunal (the discipline committee of the College) or elsewhere, and although it may investigate, it has no power to compel testimony.

37Further, settling an issue of credibility between Mr. McKee and the complainant would not be assisted by further investigation. The complainant was not present when Dr. McKee spoke to Mr. Goodman. There is no evidence that Mr. Goodman’s brother or that any member of the nursing staff was present.

38In embarking upon its own review of the material, the Board concluded that Dr. McKee had not denied making the offending remarks alleged by the complainant and criticized Dr. McKee for failing to specify exactly what he said. In our opinion, this was a palpable and overriding error.

39The Complaints Committee found that Dr. McKee stated in his written response that Mr. Goodman was told to return to the hospital if his condition worsened and that he, Dr. McKee, recommended that Mr. Goodman cease his lifestyle of alcohol and drug abuse. That finding was made in light of the wording of Dr. McKee’s response. The finding was reasonable. The Board’s conclusion in our view misapprehends Dr. McKee’s statement, and in any case fails to state why the Committee’s conclusion was unreasonable.

40More troubling is the submission by counsel for the Board that it mattered not whether Dr. McKee told Mr. Goodman to “stop the lifestyle of drug and alcohol abuse” or, as the complainant alleged, to “go home and continue that lifestyle” because it was the use of the word “lifestyle” that the Board found troubling. The Board stated, "A physician should be able to distinguish between an addiction and a 'lifestyle.'" Counsel for the Board argues that if the words alleged by the complainant were said by Dr. McKee, they were obviously meant in irony--the meaning was that Mr. Goodman should change his lifestyle. Counsel argues that it does not matter whether the actual words used were those alleged by the complainant or as reported by Dr. McKee because the gravamen of the problem as identified by the Board is the doctor's failure to understand that there is a difference between addiction and lifestyle.

41In the face of that submission, we can see no possible use in further investigation into what words were actually used. Therefore, the Board’s requirement that the Complaints Committee conduct interviews in furtherance of such an investigation is not reasonable.

42It should be noted that the word “lifestyle” which the Board finds objectionable when used by Dr. McKee, is a word used by the complainant herself in relation to her son. Nevertheless, the Board concluded that Dr. McKee did not understand the difference between lifestyle and addiction even though Dr. McKee's use of that term is not a matter about which complaint was made. No notice was given to him that the state of his knowledge or appreciation of the subject was in issue.

43The Board’s conclusion that Dr. McKee’s use of the word “lifestyle" somehow falls below the standard expected of a doctor appears to have been arrived at in the absence of any evidence that would suggest that there was anything inappropriate about the use of the word in the circumstances. There was no evidence to support that conclusion and the Board erred in arriving at it. An allegation of failure to appreciate the difference between addiction and lifestyle was not a subject of the complaint, and it was unfair and, therefore, unreasonable of the Board to opine as it did in the absence of a complaint raising the issue and an opportunity being afforded to the applicant to address it.

44It is clear from the record that the Committee considered the complaint and the response of Dr. McKee. It obtained and reviewed all of the relevant hospital records and reports which established that Mr. Goodman received appropriate medical care. It came to a reasonable conclusion in accordance with its mandate. The investigation was clearly sufficient to permit it to carryout its screening function. The test is not whether it obtained all information in existence but whether it obtained sufficient information for it to carry out its mandate. It clearly did so. Its disposition was within the range of the reasonable. The Board had no basis to interfere with it. Accordingly the Board’s decision is unreasonable, and it is set aside and that of the Committee is restored.

45Having had the benefit of submissions from counsel, we fix costs payable by the Board to the applicant in the sum of $12,000.00 inclusive of disbursements.

Jennings J.

Low J.

Swinton J.