Laity v. The College of Physicians and Surgeons of Ontario

Citation: Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557 Divisional Court File Nos.: 418/18 and 439/18 Date: 2018-07-26 Superior Court of Justice – Ontario Divisional Court

Re: Dr. Alan Howard Laity, Applicant/Respondent And: The College of Physicians and Surgeons of Ontario, Applicant/Respondent

Before: Swinton J.

Counsel: Adam Patenaude, for Dr. Laity Kathleen Heap and Carolyn Silver, for the College

Heard at Toronto: July 25, 2018

PUBLICATION BAN

NO PERSON SHALL PUBLISH OR BROADCAST THE NAMES OR IDENTITIES OF ANY PATIENTS OR ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF ANY PATIENT.

Endorsement

[1] Both Dr. Laity and the College of Physicians and Surgeons of Ontario (the "College") have brought applications pursuant to s. 35(9) of the Mental Health Act, R.S.O. 1990, c. M.7 (the "Act") seeking an order permitting the disclosure of personal health information contained in two consultation notes dated September 28, 2015 and December 31, 2015 in a hearing before the Discipline Committee of the College. The notes are in relation to medical care provided to patient X while she was an in-patient in two designated psychiatric facilities.

[2] Pursuant to s. 35(9) of the Act, no person shall disclose in a proceeding in a court or before any body any information in respect of a patient obtained in the course of assessing or treating a patient in a psychiatric facility, unless there is consent by the patient or his/her substituted decision-maker or there is a court order. With respect to a proceeding not before the courts, clause 35(9)(c) provides that the order shall be made by the Divisional Court. That provision states:

(c) where the court or, in the case of a proceeding not before a court, the Divisional Court determines, after a hearing from which the public is excluded and that is held on notice to the patient or, if the patient is not mentally capable, the patient's substitute decision-maker referred to in clause (b), that the disclosure is essential in the interests of justice.

[3] While normally applications are determined by a panel of the Divisional Court, I have been authorized by the Associate Chief Justice to hear this as a single judge pursuant to s. 21(2)(c) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] The patient refused to consent to the disclosure of the information, as indicated in an email from independent legal counsel on June 28, 2018. The patient was given notice of this proceeding through service of the application materials on independent legal counsel. An email was received by College counsel late in the morning of the application hearing indicating that the patient would like an adjournment. She indicated that she does not have money to obtain counsel or to travel to Toronto, and she did not indicate when she might be available.

[5] There is urgency to the hearing of these applications, given that they affect a motion for production scheduled in August that has been rescheduled once. An adjournment, with no specified date as to when these applications can be brought back on, would affect that motion hearing. As well, if the motion succeeds, there will likely be the need for a further s. 35(9) application. The hearing on the merits has been set for mid-October, 2018. Given the circumstances, I refused to adjourn the applications, because of the impact on the disciplinary process and the interest of the public, as well as Dr. Laity, in having this disciplinary proceeding determined.

[6] The task for the Court, on applications such as these, is to determine whether the disclosure of the documents is essential in the interests of justice. This requires the Court to consider the relevance and probative value of the documents and the parties' ability to obtain a just determination of the proceeding between them. Weighed against the parties' interest is the patient's interest in preserving privacy and confidentiality with respect to very sensitive medical information. The onus is on the applicants to show that disclosure is essential in the interests of justice (Ahmed v. Stefaniu (2004), 2004 30093 (ON SC), 72 O.R. (3d) 590 (S.C.J.) at para. 33).

[7] The discipline proceedings before the College relate to allegations that Dr. Laity sexually abused the patient, and that he failed to maintain the standard of practice of the profession when he prescribed medication for her. The two consultation notes were in his chart for the patient, as he had been copied on them in his capacity as her family physician.

[8] The College seeks an order to allow the use of these documents in the Discipline Committee proceeding, because the notes are an important part of the patient's chart on which the College expert relied in giving his opinion as to whether Dr. Laity met the standard of practice of the profession in his treatment of patient X. Having reviewed the chart, the expert concluded that Dr. Laity did not meet the standard of the profession in his treatment of patient X in early 2016 when he prescribed certain medication. The two consultation notes in issue are discussed in the report and key in the analysis of the expert. Having reviewed the consultation notes and the expert's report, I accept the College submission that these notes are essential to the prosecution of the professional misconduct allegations.

[9] Dr. Laity seeks to rely on these notes in the upcoming motion for production of third party records. The College does not oppose this application, given its position that the documents must be disclosed because they are necessary in the prosecution of the allegations of professional misconduct.

[10] In Dr. Laity's case, the notes provide an evidentiary foundation to support his request for medical records from the psychiatric facilities in which the patient was hospitalized prior to her final appointment with Dr. Laity, as well as the records of her treating psychiatrist. He must satisfy the Discipline Committee that there is a sufficient evidentiary foundation to show that the records sought are relevant and that it is in the interests of justice that the records be produced. I accept that the documents are relevant to this motion where he seeks records that he believes are essential to his ability to make full answer and defence to the serious allegations of sexual abuse.

[11] These documents do contain highly sensitive personal information about the patient. However, I note that they form part of the medical chart of Dr. Laity. Moreover, there is a publication ban in effect in the Discipline Committee proceedings that will prevent publication of information identifying the patient. That order will protect the patient's privacy to the extent possible.

[12] Having considered all the circumstances, I am satisfied that disclosure of the two consultation notes in the Discipline Committee proceeding is essential in the interests of justice.

[13] The applications are granted. An order is to go in the form of the draft order signed.

Swinton J.

Date: July 26, 2018