Court File and Parties
DIVISIONAL COURT FILE NO.: 273/13
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, Lederer and Ray JJ.
Pursuant to s. 29 of the Personal Health Information Protection Act, the names of patients contained in this court file are subject to a publication ban.
BETWEEN:
Dr. Raghunandan Gopinath Applicant
– and –
The College of Physicians and Surgeons of Ontario Respondent
Counsel: Matthew Wilton, for the Applicant Danielle Miller, for the Respondent
HEARD: May 21, 2014
Endorsement
1The applicant brings this application for judicial review of the decision of the respondent’s, Inquiries, Complaints and Reports Committee (“ICRC”) dated August 3, 2011. That applicant seeks an order in the nature of certiorari quashing the decision and an order in the nature of mandamus requiring the ICRC to make full disclosure of Its investigation. The applicant also asks for an order of mandamus compelling the ICRC to reconsider Its decision, after allowing the applicant an opportunity to make a written response to the further disclosure to be made. The applicant claims that he was denied procedural fairness before the ICRC on the grounds that he was entitled to, but failed to receive, adequate disclosure of all documents placed before the ICRC so that he could make full answer and defence.
2For the reasons that follow, we allow the application, set aside the decision of the ICRC dated August 3, 2011, order that the 13 interview summaries considered by Dr. Patel, the expert retained by the respondent, be provided to the applicant within 20 days, that the applicant provide his response within the following 30 days, and that the ICRC reconsider its decision.
Background
3In March, 2008, the Chief of Staff at Toronto East General Hospital wrote to the College indicating that over the course of the prior two years, he had received complaints about a lack of collegiality by Dr. Gopinath, a member of the Hospital’s gastroenterology department. The Registrar appointed an investigator pursuant to s. 75(1)(a) of the Health Professions Procedural Code (the Code) on the basis of reasonable and probable grounds to believe the member had committed an act of professional misconduct, not as a written complaint filed with the Registrar.
4The applicant was advised of the Registrar’s request to appoint investigators and informed about the next steps in the investigation including the respondent’s retention of Dr. Dilip Patel, a specialist in Gastroenterology, as a Medical Inspector to provide an opinion about the applicant’s practice, as well as his conduct and interactions with patients, hospital staff and physicians.
5Before Dr. Patel concluded his report, he met with the applicant to discuss 17 patients’ charts and hospital charts, the hospital’s policies, the applicant’s practices concerning these policies, and the applicant’s difficulties with collegiality. Dr. Patel’s report concluded that the applicant’s patient care in the cases reviewed was appropriate, but that the applicant’s conduct was below the expected standard because of his failure to follow hospital policies. He also concluded that the applicant lacked judgment and insight into his behavioral issues.
6After receiving Dr. Patel’s report, the applicant sent a 17 page response with 22 pages reviewing applicable professional standards and literature that he considered relevant.
7In its decision of August 3, 2011 the ICRC concluded that the applicant’s patient care was appropriate. However, it concluded that the investigation disclosed a number of concerns about his conduct which they identified. The ICRC declined to refer the applicant to discipline, but determined that, because of the concerns about the applicant’s interpersonal relationships with medical and nursing staff, pursuant to s. 26(1)3, he was required to appear before a panel of the ICRC to be cautioned; and pursuant to s. 26(1)4, he was required to participate in the PULSE Program at his expense and directed that any failure on his part to comply with Program requirements would be reported to the ICRC and the Registrar.
Positions taken on this Application
8Having made repeated requests for disclosure while the investigation was ongoing, in January, 2012, the applicant received 1500 pages that was said to reflect the entire file of the investigator. As a result of that disclosure and disclosure following the commencement of this application, the applicant takes the position that he was denied procedural fairness in that the respondent failed to disclose to him the following:
(a) The applicant was aware that the investigator was interviewing various people at TEGH. The investigator had her own notes of those interviews, which are not in question. The investigator prepared typewritten summaries of each of the 13 interviews (“13 interview summaries”) and she prepared a two page document called “Summary of Themes from Interviews at TEGH”. This two page statement summarized comments under the following “themes”: anesthesia in the endoscopy unit; governability; consent issues in endoscopy unit; communication; clinical care. The investigator had given the Summary of Themes to the applicant. He learned in 2012 that the investigator had given Dr. Patel copies of the 13 interview summaries.
(b) The decision of the ICRC indicated that the Committee had reviewed “documents from TEGH regarding Dr. Gopinath between 2006 and 2008”. In 2012, the applicant was given that item which consisted of 57 pages. The applicant had received 30 of those pages directly or indirectly and was aware of the contents. The remaining 27 pages were copies of 20 complaints from physicians and nurses at TEGH over the period January 5, 2004 to May 5, 2008 (“20 internal complaints”) and a report that had been prepared by the Human Resources Department as a result of receipt of the internal complaints. The applicant had received and was aware of those 20 complaints because they had figured in the deliberations of the Hospital’s Medical Advisory Committee which had recommended in 2008 that his appointment not be renewed. The applicant did not know that copies of those 20 internal complaints had been provided to Dr. Patel and he had not provided a written response to them.
(c) One of the criticisms by the ICRC was that the applicant failed to follow hospital policies (“the hospital policies”). The investigator had sent a letter to Dr. Patel which attached various hospital policies and procedures. The applicant received a copy of that letter and attachments long after the ICRC decision.
9The respondent’s position is that it had met its disclosure obligations by ensuring that the applicant had been made aware of the substance of the allegations being considered by the ICRC, and that the applicant had been given an opportunity to respond. Further it says that by reason of the ongoing efforts over the previous seven years to deal with the issues by the Toronto East General Hospital where the applicant had privileges, the applicant had extensive knowledge of the subject matter of the investigation. The respondent’s position is that as a consequence, the applicant had received the procedural protections to which he was entitled at the investigative stage of the respondent’s proceedings and that there is no basis for this Court to intervene.
Duty of Procedural Fairness
10Pursuant to s. 25(1) and (6), the Registrar is required to give notice to the member of receipt of a report and pursuant to s. 25.2, a member may make written submissions to the ICRC.
11The extent of the duty of procedural fairness depends on a variety of factors including the following: the nature of the decision being made; the nature of the statutory scheme; the importance of the decision to the member affected; the legitimate expectations of the person challenging the decision; and the choices of procedure made by the tribunal1.
12The standard of disclosure at the screening or investigative stage has been held to require adequate notice to ensure that a member has sufficient information to answer the case against him or her2. It has also been held that it is adequate at the investigative stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.3
13Applying the factors in Baker, the respondent gave notice to the applicant that his patient care and his conduct were at issue. Pursuant to s. 26(1), the ICRC had the jurisdiction to make one or more of the following decisions: refer to the Discipline Committee on account of an allegation of professional misconduct or incompetence; refer to a panel of the ICRC for incapacity proceedings; require the member to appear before a panel of the ICRC to be cautioned; and take other action it considers appropriate that is not inconsistent with the Act, the Code, the regulations or by-laws. Given those possible outcomes, the decision made by the ICRC was important. The applicant was aware that Dr. Patel was considering a recommendation that he attend the PHP or the PULSE program. He mentioned both in his written response dated November 29, 2010. It follows that he had a legitimate expectation that a referral to a program such as PHP or PULSE might be the outcome. Given the multiple requests he or his counsel made for disclosure and the extent of the disclosure he did receive, the applicant also had a legitimate expectation that he would receive adequate disclosure to be able to respond.
14Based on that analysis, we are satisfied that the duty of disclosure by the respondent was at the high end of the continuum in the investigative phase.
Standard of Review
15Counsel for the parties agree that where issues of procedural fairness and natural justice are raised, there is no applicable standard of review. Instead the court must assess whether the requirements of procedural fairness and natural justice to which the applicant was entitled were met.
Analysis
(a) 13 Interview summaries
16The ICRC had disclosed a good deal of information to the applicant including the two page “Summary of Themes arising from the interviews by the investigator”. But it did not provide the applicant with copies of the 13 interview summaries. The investigator did not provide the names of those interviewed or the details of the conduct which was discussed because she did not wish to exacerbate tensions between the applicant and his colleagues. She said that if the matter went forward to discipline then the applicant would have full disclosure of all documentation.
17We are satisfied that the respondent failed in its duty to provide adequate disclosure by not providing to the applicant the same documents given to Dr. Patel, namely the 13 interview summaries. We agree with counsel for the applicant that the Summary of Themes did not do justice to the extent of the matters revealed in those interviews and did not make the applicant aware of the substance of those allegations. The applicant could not respond to the breadth of the concerns on the basis of the Summary of Themes.
(b) 20 internal complaints
18Prior to the respondent’s investigation, the applicant had been involved in protracted discussions, meetings, reviews and proceedings with the hospital concerning his failure to follow hospital policy, the collegial problems that arose, and his hospital privileges. The applicant’s previous denial of privileges had been taken to the Health Professions Appeal and Review Board which had restored his privileges. The applicant had received those 20 internal complaints as a result of the hospital privileges exercise and the proceedings before the Medical Advisory Committee and subsequently, the Health Professions Appeal and Review Board.
19It is generally an insufficient response to the standard of disclosure to assert that the individual already had the requisite information. However, it was apparent in the transcript of his lengthy interview with Dr. Patel and in his written response to Dr. Patel’s report, two pages of which were devoted to the conduct issues, that he was well aware of the nature of the complaints and the identity of the author and the circumstances in which the complaints had been made.
20We are satisfied that the respondent did not fail in its duty to provide adequate disclosure by not providing to the applicant a copy of the 20 internal complaints.
(c) the hospital policies
21We are satisfied that the respondent did not fail in its duty to provide adequate disclosure by not providing to the applicant a copy of the letter to Dr. Patel attached to which were various hospital policies. As a result of the conflict and controversy, much of which was demonstrated by the 20 internal complaints, the applicant was well aware of which policies were in issue. It was apparent in the transcript of his lengthy interview with Dr. Patel that he knew what policies were in question and in his written response to Dr. Patel’s report, he attached literature that he suggested supported his view of the literature and his opposition to at least one of the policies.
Conclusion
22As a result of the breach of procedural fairness arising from the failure of the respondent to disclose the 13 interview summaries, the decision of the ICRC dated August 3, 2011 is set aside. Although the applicant now has copies of the 13 interview summaries as a result of this judicial review application, it is essential that the respondent formally provide disclosure. Within 20 days, the respondent shall provide to the applicant copies of the 13 interview summaries. Within 30 days thereafter, the applicant shall respond in writing to those documents. The ICRC shall reconsider its decision after receipt of the applicant’s response.
23Counsel have agreed on the amount of costs, subject to outcome. Accordingly, the respondent shall pay to the applicant costs fixed at $20,000.
24The materials filed by both parties contained names of patients who are entitled to privacy. Pursuant to s. 29 of the Personal Health Information Protection Act, no person shall publish the names of any patients referred to in the court record.
Kiteley J.
Lederer J.
Ray J.
Released: May 26th, 2014
CITATION: Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143
DIVISIONAL COURT FILE NO.: 273/13
DATE: 20140526
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, Lederer and Ray JJ.
BETWEEN:
Dr. Raghunandan Gopinath
AND
The College of Physicians and Surgeons of Ontario
REASONS FOR JUDGMENT
Released: May 26th, 2014
Footnotes
- Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] S.C.J. No. 39
- Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225 (Div.Ct.), rev’d on different grounds 2012 ONCA 541
- Silverthorne v. Ontario College of Social Workers and Social Services Workers, 2006 10142 (ON SCDC), [2006] O.J. No. 207 at paras 14-15 (Div. Ct)