Chong v. The College of Physicians and Surgeons (Ontario), 2015 ONSC 922
CITATION: Chong v. The College of Physicians and Surgeons (Ontario), 2015 ONSC 922
DIVISIONAL COURT FILE NO.: 416/14 DATE: 20150312
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MORAWETZ, R.S.J., LEDERMAN & LEDERER JJ.
BETWEEN:
DONALD CHONG Applicant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS Respondent
David B. Cousins, for the Applicant Vicki White, for the Respondent
HEARD at Toronto: February 9, 2015
Judgment
LEDERER J.:
[1] This is an application for judicial review.
[2] The College of Physicians and Surgeons of Ontario (the “College”) is responsible for governing the profession and regulating the practice of medicine. It plays a central role in ensuring that the medical services to which the public has access are safe, reliable and professionally delivered by competent practitioners. In carrying out these responsibilities, the College is required to establish a Quality Assurance Committee and make regulations prescribing a quality assurance program. The program, as set out in the regulations, includes provisions for peer and practice assessment and continuing professional development. The primary aim of the quality assurance program is both evaluation and education to enhance patient safety and care. It is defined in the Health Professions Procedural Code as “a program to assure the quality of the practice of the profession and to promote continuing evaluation, competence and improvement among the members”.[^1] The goal of the program is to protect the public by ensuring the delivery of quality health care.
[3] The applicant, Donald Ton Chong, is a family physician practising in Toronto. He is 76- years-old. Pursuant to an undertaking he signed on February 7, 2014, Dr. Chong’s practice is restricted to a maximum of six hours of clinical practice per day, no more than three days a week. He can see a maximum of 85 patients per week.[^2] Dr. Chong’s age triggered a peer assessment of his practice. It was conducted by Dr. John Stewart on January 14, 2013. He raised concerns regarding Dr. Chong’s patient assessment and his decision-making processes related to treatment. The report prepared by Dr. Stewart was given to Dr. Chong, who provided written submissions in response. The Quality Assurance Committee met with Dr. Chong on March 26, 2013, to review the issues raised by the assessment. The Quality Assurance Committee remained concerned. As a result, it required Dr. Chong to undergo a further assessment of his practice.
[4] This second assessment was conducted on February 28, 2014 by Dr. Tommy Hong. This assessment included direct observation of Dr. Chong treating patients, interviews with Dr. Chong and his staff and colleagues, and a review of patient medical records. Dr. Hong found numerous deficiencies in the practice of Dr. Chong. Dr. Chong received a copy of the report and provided two submissions in response. These responses were reviewed by Dr. Hong. It was Dr. Hong’s view that these responses served only to confirm his suspicions regarding Dr. Chong’s lack of knowledge and judgment. Dr. Hong observed that Dr. Chong’s “lack of insight into his own deficiencies poses a serious threat to his patients’ safety”.[^3]
[5] Having reviewed the assessment of Dr. Hong, the responses and the subsequent review, the Quality Assurance Committee determined that Dr. Chong’s “knowledge, skill and judgment have been assessed and found unsatisfactory” and that he “may have committed an act of professional misconduct or be incompetent”. In a letter, dated June 26, 2014, the Quality Assurance Committee expressed serious concerns related to Dr. Chong’s knowledge, skill and judgment and noted that his “practice poses a current and ongoing risk to patients’ safety”. It expressed the view that:
- his management of hypokalemia posed a serious threat to the safety of his patients because of inadequate follow-up of abnormal potassium levels;
- his lack of knowledge and judgment when he observed that a follow-up blood test, after a potassium supplement, should be done in 2 to 3 weeks. It should be done immediately, the same day as the test;
- his knowledge and management of osteoporosis was deficient;
- his lack of knowledge about some of the drugs used for patients with osteoporosis, particularly his insufficient knowledge of their risks; and,
- his management of a patient who presented with a possible transient ischemic attack (TIA) was inadequate and posed a serious risk to the patient.
[6] The Quality Assurance Committee assessed Dr. Chong’s practice as “Category 5-Critical Deficiency-Immediate Risk to Patient Safety”.[^4] In its letter, the Quality Assurance Committee gave Dr. Chong notice of its intended action under s. 80.2(1) of the Health Professions Procedural Code.[^5] Accompanying this letter, the Quality Assurance Committee enclosed copies of materials that it had relied on in preparing the letter, including the review prepared by Dr. Hong in consideration of the comments Dr. Chong had made in answer to the second assessment. This was the first time either Dr. Chong or those acting on his behalf had seen this document.
[7] Counsel for Dr. Chong answered the correspondence of June 26, 2014 with four letters in response.[^6]
[8] On July 31, 2014, the Quality Assurance Committee sent a further letter to Dr. Chong. It enclosed an Order of the Committee. Essentially, it required that the Dr. Chong find a supervisor and be supervised, in his practice, on the following terms:
- Dr. Chong must obtain a clinical supervisor acceptable to the College with whom he must meet weekly to review 20 patient charts (including charts from patients with potentially serious or emergent issues), and to “discuss Dr. Chong’s care and treatment plan, identify any concerns regarding the care and treatment plan and make recommendations for improvement.” The clinical supervisor must report to the College monthly;
- For the first two months, the clinical supervisor must observe Dr. Chong in his practice for three hours every two weeks. After two months, the frequency of observation can be reduced to three hours a month if the clinical supervisor so recommends and that College approves; and,
- If Dr. Chong is unable to obtain clinical supervisor, he must cease practicing medicine until he has obtained one.[^7]
[9] It is this order that Dr. Chong seeks to judicially review.
[10] This application raises three issues: (a) is the order amenable to judicial review? (b) was Dr. Chong denied procedural fairness?; and, (c) did the decision properly consider the submissions and responses made by Dr. Chong?
Is the order amenable to judicial review?
[11] The application seeks to have the order of the Quality Assurance Committee quashed. In the language of the old prerogative writs, Dr. Chong asks for an order in the nature of certiorari. Counsel for the College is concerned that the court recognize the limits on such an application as are present in this case. Counsel properly submitted that the identification of Dr. Chong’s practice as “Category 5-Critical Deficiency-Immediate Risk to Patient Safety” is, standing alone, not subject to judicial review. This categorization is an administrative tool, within the Quality Assurance Program, to identify problems.[^8] It is internal to the College and, in and of itself, not part of a public process. Without an order that follows from this determination, there is nothing that arises from a “statutory power of decision”[^9] and there is no decision that touches the “public law.”[^10]
[12] Counsel for the College acknowledged that the order ultimately made by the Quality Assurance Committee imposing supervision does affect the rights and privileges of Dr. Chong and, as such, is subject to judicial review. This includes an examination of the process leading to the order and whether it meets the requirements of procedural fairness.
Was Dr. Chong denied procedural fairness?
[13] “The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.”[^11] Factors relevant to determining what may be necessary to satisfy the duty of fairness in a given circumstance were identified in Baker v. Canada (Minister of Citizenship and Immigration).[^12] They are summarized as:
(1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision; and, (5) the choice of procedure made by the agency making the decision.
[14] This list of factors demonstrates that the content of the duty of fairness is contextual. It has to be analyzed and understood in the particular circumstances to which it is being applied.
[15] In this case, counsel for Dr. Chong submitted that there was a denial of procedural fairness, but on a very narrow basis. It was his proposition that the failure of the Quality Assurance Committee to deliver a copy of the review Dr. Hong undertook of the response of Dr. Chong to the re-assessment before it released its letter of June 26, 2014 demonstrated a failure of procedural fairness. It does not. This is plain when one considers the process as a whole. The order is not the result of a viva voce or quasi-judicial hearing. Rather, it is the end of a process. Before the order was made, the document of concern was given to Dr. Chong. Before the order was issued, his counsel made a response on his behalf. The proposition that the failure to deliver Dr. Hong’s review of the response made by Dr. Chong, in advance of the letter of June 26, 2014, amounts to a breach of procedural fairness falls into the trap that concerned counsel for the College. Its thrust is that the decision to identify the practice of Dr. Chong as Category 5 was unfair and should be set aside quite apart from the order that was subsequently made. It is the order that is subject to judicial review. Before it was made, Dr. Chong had the comments of Dr. Hong and counsel for Dr. Chong had responded. When the process as a whole is considered, there was no breach of procedural fairness.
[16] The narrowness of the complaint demonstrates there is no need to dive into a more detailed review of the application of the factors found in Baker v. Canada (Minister of Citizenship and Immigration.
Did the decision properly consider the submissions and responses made by Dr. Chong?
[17] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), the Supreme Court of Canada took up a paragraph found in the factum of the respondents filed in that case:
When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive.[^13]
[18] Counsel for Dr. Chong complained that the reasons found in the letters from, and the order of, the Quality Assurance Committee paid no adherence to the explanations in the various responses and letters provided on his behalf. These letters responded to each of the concerns expressed in the letter of the Quality Assurance Committee, dated June 26, 2014. As a result, the reasons were insufficient. How could they properly explain a decision when they failed to consider what was said by Dr. Chong?
[19] When the process as a whole is considered, this objection cannot stand. There was a continuing exchange of information and explanations back and forth. This is demonstrated by a chart included with the factum of the College. It traces the comments and responses of each issue of concern through the succession of documents that were exchanged over the course of the review, assessment and re-assessment of the practice of Dr. Chong. When this approach is accounted for, it becomes apparent that each of the concerns was reviewed and considered. This review and consideration was intrinsically part of the quality assurance process undertaken by the Quality Assurance Committee on behalf of the College.
[20] For the reasons reviewed herein, the Application is dismissed.
[21] Costs were agreed to between the parties. Pursuant to that agreement, costs in the amount of $16,500 are to be paid by Dr. Chong to the College.
___________________________ LEDERER J.
MORAWETZ R.S.J.
LEDERMAN J.
Released: 20150312
CITATION: Chong v. The College of Physicians and Surgeons (Ontario), 2015 ONSC 922
DIVISIONAL COURT FILE NO.: 416/14 DATE: 20150312
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MORAWETZ, R.S.J., LEDERMAN & LEDERER JJ.
BETWEEN:
DONALD CHONG Applicant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS Respondent
JUDGMENT
LEDERER J.
Released: 20150312
[^1]: Schedule 2 to the Regulated Health Professions Act, 1991, S. O. 1991, c. 18, as amended, ss. 3(1) and 3(2). [^2]: Quality Assurance Committee Memo of July 30, 2014, Record of Proceedings, volume 1, Tab 2, p. 24. [^3]: Letter of Dr. Hong of June 2, 2014, Record of Proceedings, volume 2, Tab 32. [^4]: Quality Assurance Commmittee letter of June 26, 2014, Record of Proceedings, volume 1, Tab 3. [^5]: The Health Professions Procedural Code s. 80.2(1) outlines the powers of the committee. In this case, particular reference should be had to s. 80.2(1) para. 4: The Quality Assurance Committee may do only one or more of the following: 4. Disclose the name of the member and allegations against the member to the Inquiries, Complaints and Reports Committee if the Quality Assurance Committee is of the opinion that the member may have committed an act of professional misconduct, or may be incompetent or incapacitated. [^6]: Letters from David Cousins, dated July 7, 9 (two) and 11, 2014, Record of Proceedings, volume 1, Tabs 4, 5, 6 and 7. [^7]: Quality Assurance Committee Order of July 30, 2014, Record of Proceedings, volume 1, Tab one, pp. 5-6. [^8]: Association for the Protection of Amherst Island v. Ontario (Ministry of the Environment), 2014 ONSC 4574, [2014] O.J. No. 4056, at paras. 21 and 28, aff’d 2015 ONSC 992 (Div. Ct.). [^9]: Judicial Review Procedure Act, R.S.O. 1990, c. J.1 s.1; and, see section 2(2). [^10]: Association for the Protection of Amherst Island v. Ontario (Ministry of the Environment), supra, at paras. 27-28 and 37-42 aff’d 2015 ONSC 992 (Div. Ct.). [^11]: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, [1990] 1 S.C.R. 653, at p. 682, quoted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] 2 S.C.R. 817, at para 21; and, Maritime Broadcasting System Ltd. Canadian Media Guild, 2014 FCA 59, 2014 F.C.A. 59, at para. 50. [^12]: Ibid, at paras. 23-27. [^13]: 2011 SCC 62, [2011] 3 S.C.R. 708, at para 18.