CITATION: Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547
DIVISIONAL COURT FILE NO.: 396/11
DATE: 20121003
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Banner v. College of Physicians and Surgeons of Ontario
BEFORE: Justices Pardu, Swinton, and Sloan
COUNSEL: Lisa Constantine and Kate Findlay, for the Applicant
Morgana Kellythorne, for the Respondent
HEARD AT TORONTO: October 1, 2012
E N D O R S E M E N T
Swinton J.:
[1] The applicant, a physician, seeks judicial review of two decisions of the Inquiries, Complaints and Reports Committee (“the Committee”) of the College of Physicians and Surgeons of Ontario (“the College”) dated April 20, 2011. The decisions followed two investigations pursuant to s. 75(1)(a) of the Health Professions Procedural Code (“the Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
[2] In the first decision, the Committee concluded that the applicant should appear before it for a caution; he should complete a course on medical record keeping; he should undergo an educational program with a preceptor; and he should undergo a practice assessment after the completion of the program. In the second decision, the Committee again imposed the educational requirements and the practice assessment.
[3] The Committee is an investigative and screening body made up of physicians and public members. In the present case, the panel of the Committee consisted of four physicians and one layperson. After the Committee considers the submissions of a member and makes reasonable efforts to consider all records and documents it considers relevant to a complaint or a report of an investigation, it can refer matters to a discipline or an incapacity hearing, or it can require the member to appear for a caution (s. 26(1) of the Code). It can also require the member to complete a specified continuing education or remediation program (s. 26(3)).
[4] The standard of review of the Committee’s decision is reasonableness, given the expertise of the Committee in dealing with standards of practice and competency in the medical profession.
[5] The applicant argues that the first decision is unreasonable because the Committee inappropriately relied on the report of Dr. Vadas, the medical investigator, who was not a “true peer” of the applicant. The applicant submits that Dr. Vadas is an allergy specialist, not a specialist in Complementary Medicine, and the applicant was not treating allergies. He also argues that the Committee failed to consider important evidence in support of his position – namely, the report of Dr. Sagar from the other s. 75(1)(a) investigation, in which Dr. Sagar stated that the applicant met the standard of care in his complementary medicine practice. As well, the applicant had provided an expert report from Dr. Kidd in support of his argument that he met the standard of care with respect to the two patients whose treatment was the subject of the first investigation.
[6] The Committee set out its reasons for relying on Dr. Vadas’s report. It was satisfied that Dr. Vadas was qualified to comment on the standard of care. We note that he had explained that he was commenting on the standard of care delivered by consultants in general, and he also made it clear in this report that he limited his remarks to the application of the College’s Complementary Medicine Policy. He found that the applicant had not complied with that policy. The Committee also explained why it did not accept Dr. Kidd’s conclusions and made reference to the applicant’s position.
[7] Given Dr. Vadas’ report, the Committee was concerned about deficiencies in the applicant’s record keeping, history taking and physical examination, as well as his approach to allergy treatment and complementary medicine. Its decision to require the applicant to appear for a caution respecting his approach to allergy treatment and to require the specified education and assessment was a reasonable response in the circumstances, given the material before it.
[8] The applicant argues that the result is unreasonable because Dr. Sagar’s report, filed for the second investigation, stated that the applicant had met the standard of care. However, that report, read in its entirety, also shows that Dr. Sagar had concerns about the record keeping of the applicant. After reviewing 25 of the applicant’s charts, Dr. Sagar concluded that some of the records barely met the threshold or were borderline.
[9] Therefore, the Committee reasonably concluded, in its second decision, that the applicant should undergo the specified educational program and practice assessment because of concerns about deficiencies in the applicant’s complementary medicine practice, including problems with record keeping.
[10] The applicant has made much of the punitive nature of the Committee’s requirements and their significant impact on him in terms of the costs of the preceptor and practice assessment and the detrimental impact on his reputation. However, the Committee is not a fact finding body, and it has not made a finding of professional misconduct. The requirements for a caution and further education are not recorded in the registry of the College (although they will appear temporarily on a Certificate of Professional Conduct until the requirements are satisfied).
[11] The College has an important duty to serve and protect the public interest (Code, s. 3(2)). While the applicant may see the requirements as punitive, the caution and the educational requirements were imposed in the public interest, in an effort to avoid possible problems in the applicant’s practice in the future. As the Divisional Court said in Modi v. Ontario (Health Professions Board) (1996), 1996 11773 (ON SC), 27 O.R. (3d) 762 at para.42:
In my view, educational upgrading may have a variety of non-punitive purposes and therefore cannot be exclusively characterized as a penalty. For example, one of these purposes may be to raise the level of physician service above the bare minimum in order to avoid future complaints.
[12] In the circumstances, the Committee’s decisions were within the range of possible, acceptable outcomes, given the facts and the statutory framework. Accordingly, the application for judicial review is dismissed.
[13] If the parties cannot agree on costs, the College may make brief written submissions through the Divisional Court office within 10 days of the release of this decision, followed by the applicant’s submissions within 10 days thereafter.
Swinton J.
Pardu J.
Sloan J.
Released: October 3, 2012