Kirkland v. Sue, 2018 ONSC 5896

Kirkland v. Sue, 2018 ONSC 5896

CITATION: Kirkland v. Sue, 2018 ONSC 5896

DIVISIONAL COURT FILE NO.: 048/17

DATE: 20181004

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J.S.C., CONWAY and LEMAY JJ.

B E T W E E N :

ANDREW KIRKLAND

Applicant

– and –

SAMMY CHEONG WAH SUE, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, and COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondents

Hari Nesathurai and Glen M. Perinot for the Applicant

Marc Flisfeder for the Respondent Sammy Cheong Wah Sue

Steven G. Bosnick for the Respondent Health Professions Appeal and Review Board

Lindsay Cader for the Respondent College of Physicians and Surgeons of Ontario

HEARD: October 3, 2018

CONWAY J.:

1The Applicant, Andrew Kirkland, seeks judicial review of a decision of the Health Professions Appeal and Review Board (the “Board”) dated December 22, 2016. The Board’s decision upheld a decision of the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) dated November 4, 2015. The Applicant seeks various declaratory relief and a mandatory order requiring the Respondent Sammy Cheong Wah Sue (“Dr. Sue”) to destroy and/or remove the Form 1 placed in the Applicant’s medical record at St. Joseph’s Health Centre in Toronto.

Background

2On July 13, 2010, the Applicant was detained by the Toronto Police Service for disturbing the peace. The Applicant pretended to hang himself in his holding cell in order to be transferred to a hospital as he feared for his personal safety. The Applicant was taken to the emergency department at St. Joseph’s Health Centre by paramedics and police.

3Dr. Sue was the attending emergency physician when the Applicant arrived at the hospital. The Applicant was assessed by Dr. Sue and nursing staff. When Dr. Sue saw that the Applicant was not responsive, he began to complete a Form 1 under s. 15 of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”) so that the Applicant could be admitted to the hospital and undergo a psychiatric assessment.

4When he awoke, the Applicant denied all suicidal ideation and Dr. Sue stopped completing the Form 1. The Applicant informed the nursing staff and Dr. Sue that the police officers assaulted him and he had sustained bruises. The Applicant refused to leave the hospital and was eventually escorted out by security. Although the Form 1 was signed, Dr. Sue never finished filling out the document and it was never formally issued. The Form 1 was placed in the Applicant’s hospital chart.

5In June 2015, the Applicant filed a complaint with the Committee regarding Dr. Sue’s care and conduct. The Committee rendered its decision on November 4, 2015. The Committee determined that Dr. Sue acted appropriately in setting out to complete the Form 1. It noted that Dr. Sue properly discontinued the Form 1 process when it became clear that the Applicant had staged his suicide attempt. The Committee stated that Dr. Sue should have been more attentive to the Form 1 itself and either completed or ripped the Form 1 up once it was determined to be unnecessary.

6The Committee acknowledged the Applicant’s request for the Form 1 to be removed unconditionally from the record. The Committee referred to the College’s policy on modifying patient’s medical records, as well as the provisions of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”). It observed that when a document is part of a patient’s medical record, it cannot be unconditionally removed, but rather can be separately stored with a corresponding notation about the record’s location in the chart, so the information can be traced (commonly known as a “lock box”). It noted that the hospital had placed the Form 1 in a “lock box” and that Dr. Sue’s legal representative had agreed to write to all of the police services involved and the border services to inform them that a Form 1 had never been issued.

7The Committee determined that the appropriate disposition was to advise Dr. Sue about not signing forms until he had completed them so that the confusion that arose in this case could be avoided in the future.

8The Applicant requested that the Board review the Committee’s decision. The Board concluded that the Committee’s decision with respect to the completion and issuance of the Form 1 was reasonable and confirmed the Committee’s decision to advise Dr. Sue not to sign forms until he has completed them. The Board also found the Committee’s decision that the Form 1 could not be removed unconditionally from the Applicant’s record to be reasonable. The Board noted that the hospital had not actually placed the Form 1 in a lockbox but that it had offered to do so and the Applicant had refused the offer.

9The Applicant seeks judicial review of the Board’s decision. The parties agree that the standard of review of the Board’s decision is reasonableness. I note that the standard of review for the Board when reviewing the Committee’s decision is also reasonableness: McKee v. Health Professions Appeal and Review Board, 2009 55293 (ON SCDC), [2009] O.J. No 4112 (Div. Ct.), at para 29. Further while this is not strictly speaking a judicial review of the Committee decision itself, it does require us to consider the underlying decision of the Committee in order to determine if the Board’s findings were reasonable: Reyhanian v. Health Professions Appeal and Review Board 2013 ONSC 297 (Div. Ct.), at para. 11.

Analysis

10The Applicant submits that the Form 1 completed by Dr. Sue did not comply with s. 15(1)-(3) of the MHA as Dr. Sue began filling out the form before observing or examining the Applicant. Section 15(2) of the MHA provides that:

[An application for a Form 1] shall set out clearly that the physician who signs the application personally examined the person who is the subject of the application and made careful inquiry into all of the facts necessary for him or her to form his or her opinion as to the nature and quality of the mental disorder of the person.

11In my view, the Board’s decision upholding the Committee’s conclusions with respect to the completion of the Form 1 was reasonable. The Committee found that there had been a concern about the Applicant’s safety based on his history and physical examination and that this warranted the initial steps in filling out the Form 1. The Form 1 was properly discontinued when it was later determined that the Applicant had faked his suicide attempt. The Board noted that the Committee’s conclusions were grounded in the evidence and, in particular, the medical records that supported Dr. Sue’s version of events. There is no basis on which to interfere with the Board’s decision with respect to the completion of the Form 1.

12The Applicant further submits that the Board’s conclusion that the Form 1 could not be removed unconditionally from his chart is unreasonable. He requests an order unconditionally removing the Form 1 from his chart, on two bases.

13First, the Applicant submits that the incomplete Form 1 did not include the Applicant’s name and/or any information that would identify the Form 1 as being associated with the Applicant. He therefore submits that the incomplete Form 1 is not a medical record nor does it qualify as a record of personal health information under PHIPA because it is silent on the information relating to his identity.

14I reject this submission. Although the Form 1 was incomplete and did not explicitly identify the Applicant by name, the form does include information regarding the observations, examination and assessment of the Applicant that were done when he arrived at the hospital. I see no error in the Board’s conclusion that the Form 1 contained identifying information and formed part of the hospital records.

15Second, the Applicant submits that contrary to the Committee and Board’s conclusion, the Applicant was entitled to require that his Form 1 be disposed of pursuant to the provisions of PHIPA.

16In my view, the Board’s decision that the Applicant was not entitled to require that the Form 1 be removed unconditionally from his chart was reasonable. Sections 1 (b) and (c) of PHIPA, which outline the purposes of the statute, only provide individuals with a “right of access” to personal health information about themselves and a right to require “the correction or amendment” of such personal health information. PHIPA allows an individual to provide express instructions to “health information custodians” not to use or disclose his personal health information without his consent (s. 37(1)(f), 38(1)(a), 50(1)(e)). However, it does not provide that an individual has the right to require the disposal of his personal health information.

17Further, the sections of PHIPA that refer to disposal of records (s. 13(1), 17(1), and 61(e)) only address the safe and secure disposal of records by the health information custodian. The College and Board’s conclusion that PHIPA does not provide the Applicant with the right to require disposal of his Form 1 was therefore reasonable.

18Finally, the College specifically considered its own policy on “Destroying Medical Records”. That policy clearly states that “physicians must not dispose of personal health information unless their obligation to retain the record has come to an end”. Pursuant to regulations to the Medicine Act, O. Reg. 114/94, s. 19 and the Public Hospitals Act, R.R.O., Reg. 965, s. 20(3), physicians and hospitals are required to retain their records for prescribed periods of time before those records are destroyed. It was reasonable for the Committee and the Board to take into consideration the policies of Dr. Sue’s regulatory college and the regulations imposed on his profession in determining that the Applicant could not require the unconditional removal of the Form 1 from his medical record.

19The application for judicial review is dismissed. No costs are sought by any of the parties.

CONWAY J.

I agree _______________________________

MARROCCO A.C.J.S.C.

I agree _______________________________