Court File and Parties

COURT FILE NOs.: CV-20-633941 and CV-20-633942 DATE: 20200218 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COLLEGE OF PHYSICIANS AND SURGEONS, Applicant – and – SJO, Respondent

AND RE: SJO, Applicant – and – COLLEGE OF PHYSICIANS AND SURGEONS, Respondent

BEFORE: E.M. Morgan J.

COUNSEL: Lisa Brownstone and Ruth Ainsworth, for the College Matthew Sammon and Ian Macleod, for SJO

HEARD: February 3-4, 2020

AMENDED REASONS FOR JUDGMENT

[1] These Applications address an investigation by the College of Physicians and Surgeons (the “College”) into the care and communications with a patient by SJO (the “Doctor”). The central question is a thorny one of confidentiality since the patient is well-known to the College’s investigative staff.

[2] By Order of Firestone J., the patient of the Doctor whose medical records are at issue here has been anonymized and will be referred to as Patient A. By my own Order at the hearing of this matter, Justice Firestone’s Order has been extended to include initializing the name of the Doctor in documents issuing from these proceedings.

I. The Court's Jurisdiction

[3] The College has brought its Application under section 87 of the Health Professions Procedural Code, Sched. 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18 (“RHPA”), to obtain records which the Doctor has to date refused to produce. The Doctor’s separate application under Rule 14 of the Rules of Civil Procedure requests that this Court enjoin production of the records sought by the College and set out a principled basis on which the Doctor can cooperate with the College's investigation.

[4] A jurisdictional argument has surfaced at the outset of the proceedings as to which court should properly be hearing one or both of these matters. It is the College’s position that the Doctor’s Application is in essence a request to judicially review the College’s decision to seek production of the Doctor’s correspondence with and medical chart for Patient A. Counsel for the College states that generally, “[i]n Ontario, the procedure for attacking decisions of public administrative bodies is by way of judicial review…”: JN v Durham Regional Police Service, 2012 ONCA 428, para 16. She therefore submits that the Doctor should have brought his Application in Divisional Court under section 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1.

[5] Counsel for the Doctor does not see it that way, but rather views the matter as properly coming before the Superior Court of Justice in motions court. He characterizes the controversy over production of the Doctor’s records as one of privilege and seeks declarations and directions to that effect under Rule 14.05. That said, the Doctor’s counsel does not put up a vigorous objection to classifying this as a judicial review application. He concedes that part of the Doctor’s argument rests on a challenge to the College’s investigative decision-making insofar as the College seeks to obtain what the Doctor describes as privileged materials and communications.

[6] Likewise, Counsel for the College indicates that she would not object to my constituting myself as a Divisional Court judge for the purposes of the proceedings. She agrees that, although they are framed differently, the two Applications raise the identical issues and that it is preferable in all respects that they be heard together. The relief sought in the Doctor’s proceeding also constitutes his response to the College’s proceeding, and vice versa.

[7] There is a very fine line between, on one hand, an application for a declaration of privilege over documents and directions with respect to an ongoing investigation, and, on the other hand, an application for judicial review of an investigator’s decision to seek production of those documents and to require unimpeded cooperation during the course of the investigation. Indeed, the line is so fine that it would virtually invisible to me without the enhancements provided by counsels’ very able submissions.

[8] That said, Rule 14.05 does provide a basis for an application for an injunction and directions such as that sought by the Doctor. I therefore do not see a need to re-characterize the Doctor’s proceeding as an application for judicial review. I say that while acknowledging the College’s point that the Doctor could have characterized it that way from the outset.

[9] I will pause here to note that the question of privilege raised by the Doctor has implications well beyond the instant case. More is at stake in this proceeding than just the investigator’s particular approach to the Doctor and Patient A. In fact, counsel for the College submits that the Doctor’s characterization of the privilege issue impacts on the uniform application of the entire professional regulatory process for which the College is responsible.

[10] This characterization of the issue makes its determination on a correctness standard necessary for the proper functioning of the system: Alberta (Information and Privacy Commissioner) v University of Calgary, 2016 SCC 53, [2016] 2 SCR 555, paras 19-26. While the College’s investigators certainly have expertise in the substantive medical ethics and competence issues within their statutory mandate, the way the disclosure and production issue has been raised here impacts in a broad way on the operation of the professional regulatory system. The Supreme Court has recently confirmed that such a “[g]eneral question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise…requires the application of the correctness standard”: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, para 58.

[11] The respective roles of Superior Court in hearing applications in motions court, and Divisional Court in hearing judicial review applications, must be respected. However, the jurisdictional question raised here is much like parsing the true nature of a zebra. Whether the College has brought a white horse and the Doctor has responded with black stripes, or the Doctor has brought a black horse and the College has responded with white stripes, the parties have joined issue over the same questions that need to be answered.

[12] I will consider this to be an Application and Counter-Application brought properly in the Superior Court of Justice. Accordingly, I will address both Applications in my capacity as motions court judge.

II. Origin of the Investigation

[13] Until recently, Patient A worked at the College. In her employment capacity she had access to confidential information.

[14] The Doctor practices as a psychiatrist. Patient A has been his psychiatric patient for several years. He has deposed that she is his most difficult patient. Although the Doctor has not disclosed any details of Patient A’s medical chart to the College or to the Court, he has stated in a general way that she has a number of mental disorders which require treatment on an ongoing basis. He has also indicated that she has in the past evidenced suicidal ideation and presents a serious safety concern with respect to the matters in issue here.

[15] Because she had moved to Toronto from a different Ontario city where the Doctor is located, Patient A often communicates with the Doctor by email. Over the years she sent the Doctor numerous email messages containing highly personal and sensitive information about herself and others. This email correspondence contained, among other things, communications regarding her work at the College, including confidential information on which she was working. The Doctor never revealed to the College that its employee was sending him this kind of material by email. It was only discovered after Patient A was for unrelated reasons terminated from her employment and the College conducted a routine inspection of her work email account.

[16] The work product sent by Patient A to the Doctor included confidential information such as the names of patients and physicians. The Doctor has on occasion been retained by the College as an expert and peer assessor, and so is familiar with the nature of Patient A’s work. Patient A sought the Doctor’s reassurance and support on the substance of her work product. The Doctor’s responding emails contain the kind of substantive commentary that Patient A requested.

[17] As a result of the College’s discovery of these emails, it commenced an investigation into the Doctor for receiving and engaging with confidential College information provided by Patient A. The College’s investigator, Jill Hulton, interviewed the Doctor with respect to the College’s concerns. She assured the Doctor that the College had not informed Patient A of the preliminary investigation. The Doctor stated that he also would not tell Patient A about the investigation, and indicated that he was very concerned to maintain confidentiality given Patient A’s sensitivity and her professional familiarity with the College’s investigative staff and processes.

[18] The Doctor acknowledged in this initial conversation that it was wrong of him to engage with emails sent to him by Patient A containing confidential information about third parties. He explained that he only did so out of concern for Patient A’s well-being. In his affidavit, he described this conversation in some detail:

I explained to Ms. Hulton that Patient A was a longstanding patient with a complex diagnosis, who would communicate with me regarding her work at the College and work product. I conceded that she had sent me confidential information from time-to-time, but that I did not feel that I was in a position to report this to the College. I explained that I was attempting to support the patient in my responses to her, but that I understood that responding to these emails in this fashion was not appropriate. I told her that I had deleted many of these emails, but had also printed some and placed them in the chart. I agreed to provide the College investigator emails I could retrieve that contained College work product. I also agreed to submit and prepare a response to the investigator in the next few days. I made clear that I could not and would not submit chart material in my responses to the College. I was also careful during the call not to disclose specific clinical details regarding the patient or personal information that she had conveyed to me (given that she had not consented to the disclosure of clinical information to the College), and I made it clear to the investigator that I did not feel I could disclose specific clinical information without the consent of Patient A.

[19] Over the course of the next two days, the Doctor followed up with the College by emailing Ms. Hulton a confirmation of the contents of their phone call. He conceded that his email correspondence with Patient A regarding her work at the College represented an inappropriate “blurring of boundaries”. He also sent a letter to the College enclosing all of the College-related emails that Patient A had sent him that he could retrieve from his inbox. He did not, however, send the College any correspondence from Patient A that was not related to the College’s work product, and explained that he felt he could not disclose any clinical information about his patient without her consent.

[20] At the same time, the College, through an external lawyer retained by it in respect of Patient A’s employment-related claim, wrote to Patient A stating that it had come to the College’s attention that she had sent confidential information to the Doctor. In this letter, the College’s employment lawyer took the position that Patient A’s actions constituted “gross misconduct”, which justified her “summary dismissal”, and that the College was continuing to investigate the matter and considering appropriate action under the RHPA and Code.

[21] As might be expected given her former employment at the College, Patient A correctly surmised from this correspondence that the Doctor was being investigated. In fact, she advised the Doctor of this herself.

[22] The Doctor, in turn, spoke with Ms. Hulton and expressed concern that his correspondence with the College, which he expected to be kept confidential, would be leaked to Patient A. He indicated to her that he feared that such disclosure would undermine his therapeutic relationship with the patient and would lead to a deterioration in her condition. For her part, Ms. Hulton assured the Doctor that his correspondence with the College would be kept confidential, and that the College had restricted the number of staff who had access to information regarding this matter.

[23] Dr. Peter Prendergast, a psychiatrist employed at the College and a member of the ICRC, reviewed the investigative file and sent an email to an ICR department manager recommending that the College proceed with a formal investigation into the Doctor. The email message sent by Dr. Prendergast spelled out the confidentiality concerns with respect to Patient A in an all-caps advisory, as follows:

THERE ARE SIGNIFICANT PRIVACY ISSUES WITH RESPECT TO THIS FILE, SO CIRCULATION SHOULD BE LIMITED AND TRACKED.

[24] On the basis of the review and recommendation by Dr. Prendergast, the College’s Registrar sought the appointment of investigators under the Code.

III. The Formal Investigation

[25] Section 75(1)(a) of the Code allows for the appointment of investigators if the Registrar “believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Inquiries, Complaints and Reports Committee approves of the appointment.” Under section 76 of the Code, an investigator who is so appointed “may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination”. This statutory authority provides the investigator with broad power to summons information.

[26] As counsel for the College notes in her factum, the Registrar formed the requisite belief on the basis of:

• Documented communications between Patient A and [the Doctor], including communications in which he received and commented on the confidential, personal health information of other individuals, sent from Patient A to [the Doctor], which [the Doctor] had no right to see or retain and communications which demonstrated a high degree of informal familiarity between Patient A and [the Doctor];
• Responses to the College from [the Doctor] in which he:
  • confirmed Patient A was his patient and advised he considered her ‘his most difficult patient’;
  • admitted that he was inappropriate in communications with his patient because ‘she is so difficult’ and that he had engaged in ‘inappropriate blurring of boundaries’ and was ‘not professional’ with this patient;
  • expressed that ‘this is the hardest person [he has] ever looked after in twenty years’ and that ‘boundaries have been a very challenging issue for [him] in this case’;
  • advised that he kept her on as a patient even after she moved from [Ontario] to Toronto, even though ‘it has been extremely difficult to follow her in Toronto as she is seldom able to come for appointments’ even though ‘her condition is of a nature and quality that ideally requires frequent and close monitoring and follow up’;
  • advised that he finds it ‘difficult to make decisions that would be in her best interest’; and
• A memorandum from College Medical Advisor and psychiatrist Dr. Peter Prendergast opining that ‘The preliminary information raises questions about his [the Doctor’s] judgment, his clinical ability to manage complex patients, and his awareness of boundary and confidentiality issues.’

[27] The College has appointed Dr. Sian Rawkins of CAMH as an expert to provide her opinion in this matter. Dr. Rawkins concedes that since Patient A’s medical charts have not been produced by the Doctor, she has too little to go on in order to form a definitive opinion about the Doctor’s course of treatment of Patient A. However, from the little that she has seen – including the email trail left in the College’s email system by Patient A upon the termination of her employment as well as the Doctor’s own explanations – she is of the view that further ICRC proceedings are called for. Dr. Rawkins’ report concludes:

I have serious concerns about [the Doctor’s] care and conduct, specifically with respect to privacy breaches, boundary violations, and continuing to care for [Patient A] despite serious threats to the therapeutic alliance.

[28] The emails with respect to Patient A’s sharing of confidential College work product with the Doctor speak for themselves. The Doctor concedes that he should not have been privy to this information. He also acknowledges that as a previously retained expert himself, he is very familiar with the College’s requirement of confidentiality in its investigative processes.

[29] Dr. Rawkins notes, however, that the issues with respect to the Doctor’s communications with Patient A go beyond the inappropriate access that she gave him to her College work. There is also a series of communications from Patient A to the Doctor that suggest serious boundary crossings of a personal nature. She cites as an example the following email exchange:

-8:Ol AM [Patient A], ‘My ribs are killing me.’ -8:08 AM [the Doctor], ‘I will call ct today.’ -8:08 AM [Patient A], ‘No it's just this bra digging into them.’ -8:14 AM [the Doctor], ‘Ok. I guess u may still need to go shopping then.’ -8:42 AM [Patient A], ‘Yeah it's on my effing list.’ -10:20 AM [Patient A], ‘OMFG’ and forwards [the Doctor] an email addressed to her from an unknown other [person]. -10:38 AM [the Doctor], ‘I am speechless -that is so wrong and inappropriate on so many levels - I am sorry you have to experience that type of harassment - that is unacceptable.’ -10:38 AM [Patient A], ‘I am getting the HELL OUT OF HERE. Don't email this account anymore’.

[30] In her report, Dr. Rawkins has expressed “serious concern” with respect to the Doctor’s modes of communication and familiarity with Patient A. In doing so, she has highlighted the interplay between Patient A’s “significant struggles with interpersonal relationships, impulsivity, and boundaries” and the Doctor's admittedly poor boundaries with the patient. She opined that “access to the clinical chart and other correspondence between the Doctor and [Patient A] is required in order to definitely assess this concern.”

[31] While the Doctor has resisted making the disclosure of medical records necessary for any further examination of this matter, he all but concedes that in another case full production of the patient’s medical chart would be called for. The Doctor acknowledges:

• it is a requirement of a psychiatrist’s professional position to maintain boundaries, especially with a patient whose tendency is to push them;
• sometimes a boundary violation with a patient can be so damaging to the treating relationship that the relationship must come to an end;
• he is aware that Dr. Rawkins cannot reach definitive conclusion without access to additional information, including Patient A’s medical chart; and
• when a patient with boundary issues wants the psychiatrist to do something that puts the psychiatrist in legal jeopardy, it is the psychiatrist's job not to allow that to happen.

[32] The College’s decision-making panels have on a number of occasions confirmed that these points are not only important in terms of competent patient care, but constitute fundamental principles of professional ethics for psychiatrists. Boundary blurring can often be a prelude to further boundary violations or other unacceptable behaviours: CPSO v. Seidman, 2013 ONCPSD 28, at 21, 24. Moreover, relaxed attitudes toward boundaries, particularly by psychiatrists, can lead to significant patient harm: CPSO v. Porter, 2016 ONCPSD 3, at 13, 42.

[33] This is particularly the case in a lengthy therapeutic relationship of an emotionally intimate nature; the risk of harm should be clear to the treating psychiatrist: CPSO v. Silver, 2009 ONCPSD 11, at 5-6. Indeed, it is often the case that a failure to maintain professional boundaries in this way is the beginning of a “slippery slope”, whereby ever-increasing boundary violations take place. This danger especially applies to patients with borderline personality disorders: CPSO v. Caro, 2005 ONCPSD 15, at 5-6.

[34] Dr. Rawkins has also expressed concern about the Doctor’s ongoing treatment of Patient A and failure to transfer her to another psychiatrist despite the long distance and his acknowledged difficulties and boundary issues with her. In fact, in cross-examination the Doctor conceded that “the geographic distance and inability to attend frequent appointments” have hampered his ability to care for her. He acknowledged that Patient A’s condition “requires frequent and close monitoring and follow up” and “it has been extremely difficult to follow her in Toronto.”

[35] The Doctor’s evidence is that he has been unable to find a psychiatrist in geographic proximity to Patient A that has expertise in her various maladies. Frankly, however, that seems implausible given that she moved from a smaller town to Toronto where there is a large number of doctors, and not in the other direction. Dr. Rawkins deposed that, based on her knowledge of the Toronto medical community, it is impossible that he could not have found her a psychiatrist at some point between Patient A’s move to Toronto and the termination of her employment.

[36] The one conversation which the Doctor states that he fears most is Patient A’s inquiry as to whether he has handed over her medical chart to the College. He deposes that she has called him frequently with that question since her discovery of the investigation, and that she will likely continue to call even if and when he manages to transfer her to a new psychiatrist. His fear is that if he ever has to answer that question in the affirmative, she will decompensate and potentially cause herself harm. Accordingly, it is the Doctor’s view that he will have to continue to take her calls and answer her email inquiries whenever she contacts him – potentially for the rest of his life.

[37] In Dr. Rawkins’ view, this attitude reflects the same rationalizations and lack of judgment that the Doctor has shown toward this patient in the rest of his dealings with her. When asked why he continued to correspond with Patient A about her confidential work products, his response is that if he did not help her with her work when she needed it she could lose her job and might do herself harm; when asked why he continued to correspond with her in an inappropriately personal and informal manner, his response is that if he cut off ready communication with her she could decompensate and potentially do herself harm; and when asked why he has delayed in transferring her to another psychiatrist, his response is that she is reliant on the therapeutic relationship with him and that without it she could engage in high risk behaviour and potentially do herself harm.

[38] Dr. Rawkins makes a valid point about the Doctor’s apparent misjudgments about how he should relate to Patient A. In addition, professional misjudgment may not be the only problem. It is the College’s view that the Doctor’s position with respect to his communications with Patient A is also self-serving from a legal point of view.

[39] The Doctor has crafted a position that, if accepted, would ensure that there would never be conditions under which he could produce Patient A’s medical chart to the College – at least, not in unredacted form. And it is the Doctor’s further position that he is the only one who is in a position to safely determine what portions of Patient A’s file to withhold from the College and what portions to reveal. After all, since he has not produced her medical chart or transferred her to another psychiatrist, he is by definition the only one who knows her diagnosis, her psychiatric history, and her risk profile.

[40] It is self-evident from a legal perspective that the Doctor cannot be judge in his own cause. The question is whether the statutory regime under which the College and its members, including the Doctor, operate compels him to hand over Patient A’s medical chart, or whether that chart is protected by privilege. And while that question involves some assessment of the risk to Patient A, it is fundamentally a legal question and not a medical one. It is ultimately the Court that will determine what the Doctor does and does not have to produce to the College. It is not for the Doctor under investigation to make this determination on his own.

IV. The College's Mandate and Confidentiality

[41] As regulator of the medical profession, the College and its investigative staff play an important role in “monitoring competence and supervising the conduct of professionals [which] stems from the extent to which the public places trust in them”: Pharmascience Inc. v. Binet, [2006] 2 SCR 51, para 36. Under section 3(1)(2) of the Code, it has a duty to serve and protect the public interest and, in general, it is authorized to “inquire into and examine the practice of the member to be investigated”: Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, para 11.

[42] This power is a necessary component of the College’s public interest mandate, which courts have interpreted generously “with a view to ensuring that such statutes protect the public interest in the proper regulation of the professions”: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 OR (3d) 420 (Ont CA), leave to appeal to SCC refused (2013) 320 OAC 387. In view of this mandate, the Court of Appeal has held that the power to conduct an investigation authorized by the College’s Registrar under s. 76(1) of the Code acting on reasonable and probable grounds “should be given a broad and purposive interpretation to enable an investigator to carry out his or her duty to investigate”: Ibid, para 99.

[43] The College’s statutory powers of investigation have been summarized by its counsel as follows:

• The Registrar of the College may appoint one or more investigators if she believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent, and if the ICRC approves of the appointment [Code, s. 75(1)(a)];
• a duly appointed investigator may inquire into and examine the practice of the member to be investigated and s. 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination [Code, s. 76(1)];
• an investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters relevant to the investigation [Code, s. 76(1.1)];
• an investigator may enter the member's practice and examine anything found there that is relevant to the investigation [Code, s. 76(2)];
• no person shall obstruct an investigator or withhold or conceal from him or destroy anything that is relevant to the investigation [Code, s. 76(3)];
• a member shall co-operate fully with an investigator [Code, s. 76(3.1)];
• an investigator may copy any document that it is entitled to examine under s. 76(2) and may remove any document, if a copy is not sufficient for the purposes of the investigation [Code, s. 78(1)(2)].

[44] Section 76(4) of the Code is particularly important under the circumstances, as it expressly provides that the investigation provisions apply “despite any provision in any act relating to the confidentiality of health records.” As the Court of Appeal observed in Gore, the College’s statutory powers of investigation contemplate the prospect of an intrusion into the confidentiality of the relationship between a physician and patient. The Court noted, at para 23, that, “An investigation under s. 76 will have to take into account the patients’ interests and the section does not purport to override those interests, except with respect to health records as articulated in subsection 4 [emphasis added].”

[45] Accordingly, the Court of Appeal reasoned that the principle of patient confidentiality does not provide grounds for a physician under investigation to refuse to release medical records:

Further, both the Act and the Code contain explicit provisions to prevent public disclosure of confidential patient information. For example, College employees and agents are required, with limited specific exceptions, to keep confidential all information that comes to their knowledge in the course of their duties. I also find compelling the observations of McLachlin J.A. in College of Physicians and Surgeons of British Columbia v. Bishop, [1989] B.C.J. No. 48, 56 D.L.R. (4th) 164 (S.C.), at p. 171 D.L.R., that ‘while the public has an expectation that medical records will be kept confidential, that expectation is subject to the higher need to maintain appropriate standards in the profession’.

Gore, para 24.

[46] This authority to override concerns about patient confidentiality has itself been read broadly, in keeping with the College’s duty to the public at large. Thus, where the College is engaged in an investigation prompted by a patient complaint, it is entitled to continue that investigation even if the patient subsequently wishes to withdraw the complaint: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para 46. Further, during the course of investigating a physician the College has the power to compel disclosure of the name and production of the patient chart of a victim of sexual abuse, even where that patient has expressed a desire to remain anonymous: College of Physicians and Surgeons of Ontario v. Kayilasanathan, 2019 ONSC 4350, para 70.

[47] As the Divisional Court said in Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7257, para 57, “The reasonable and probable grounds requirement [to commence an investigation] is the balance that the legislature has struck between the interests at stake.” Of course, a patient has rights, including that their health records not be disclosed to the public or, for that matter, to the College unnecessarily; but “the case law has clearly established that there may be cases in which the College's overarching mandate to protect the public interest will prevail over the patient's individual interests”: Kayilasanathan, para 74. In such cases, the patient’s rights are protected by the legislation insofar as it ensures that the College’s investigatory powers may only be exercised if there are reasonable and probable grounds to justify their exercise: Sazant, paras 124-125.

V. Wigmore Privilege

[48] As set out above, a patient’s medical chart is not statutorily protected from an authorized inquiry into a physician’s ethics or competence. However, the College’s investigatory powers are expressly made subject to section 33(13) of the Public Inquiries Act, 2009, SO 2009, c. 33, Sched. 6. That section provides that “[n]othing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.”

[49] It is therefore clear that the legal categories of privilege may serve to restrain the College’s investigatory powers: Sazant, paras 99, 154, 159. Counsel for the Doctor submits that these categories should be expanded to make Patient A’s medical chart and her correspondence with the Doctor inadmissible in the College’s investigative process.

[50] The physician-patient relationship is not an established category of privilege such that production of the medical chart would automatically be barred in the ordinary course of an adversarial process. That said, it is now well recognized that the categories of privilege are not closed. They may be extended to new relationships on a case-by-case basis to include situations where the principles that underlie the concept of privilege are applicable: R. v. Gruenke, [1991] 3 SCR 263, 286.

[51] The applicable principles on which to analyze a question of privilege derive from a list of four inquiries set out in 8 Wigmore on Evidence (1961) § 2285. The Supreme Court of Canada summarized the analysis in M.(A.) v. Ryan, [1997] 1 SCR 157, para 20, as follows:

First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be ‘sedulously fostered’ in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

[52] Turning to the first inquiry, counsel for the Doctor cites R. v. Mills, [1999] 3 SCR 668, paras 77-85, for the proposition that Patient A, like all persons in Canada, has a right to privacy which derives from the right under s. 7 of the Charter to security of the person. And while the Doctor has not launched a direct Charter challenge to the provisions of the RHPA and the Code authorizing the investigation and the disclosure requirements attendant thereto, he relies on Ryan, para 30, for the view that “[T]he common law must develop in a way that reflects emerging Charter values.” He then goes on to note the Supreme Court’s observation that “privilege in psychotherapeutic records may exist in appropriate circumstances”: Ibid., para 36.

[53] The Doctor’s counsel submits that the psychiatrist-patient relationship is one of special sensitivity, and so has all the hallmarks of one where privilege is required. In fact, he notes that the College’s own expert, Dr. Rawkins, agreed with a number of propositions to this effect that he put to her in cross-examination:

(a) Confidentiality between a psychiatrist and patient is a prime condition in establishing an effective therapeutic relationship; (b) in no other medical specialty is so much private information required for establishing an accurate diagnosis and treatment plan as in psychiatry; (c) in general, psychiatric illnesses create a vulnerability with respect to privacy; (d) breaches or potential breaches of confidentiality in the context of a psychiatric relationship may seriously jeopardize the therapeutic relationship; and (e) where that confidentiality is violated in the eyes of the patient, it can have devastating emotional effects and affect the existing therapeutic relationship as well as future therapeutic relationships.

[54] Based on these uncontested propositions, it is the Doctor’s position that his communications with Patient A, along with Patient A’s medical chart, are privileged and cannot be produced to any third party. In fact, the points stressed by the Doctor would apply generally to all psychiatric patients. It must therefore be the Doctor’s position that all such communications and patient records in the hands of psychiatrists are covered by a blanket privilege.

[55] Counsel for the College does not dispute that in appropriate circumstances privilege may attach to a patient’s psychiatric records, but she submits that this is not one of those circumstances. The context of the Ryan case was a private law suit by a patient against her abuser; the context of the case at bar is a public regulatory investigation into a medical professional. In determining privilege under the Wigmore criteria, it is context, and not the fixed category into which the relationship falls, that is determinative. There is a meaningful difference between a patient’s expectation of confidentiality vis-à-vis her abuser, whose very conduct prompted her to seek psychiatric care in the first place, and a patient’s expectation of confidentiality vis-à-vis the regulator of the medical profession, whose activity is designed to protect her against mistreatment or abuse.

[56] It is the College’s position that Patient A had no expectation that her communications with the Doctor and her medical chart compiled by the Doctor would be kept confidential from the regulator. Indeed, as a member of the College’s staff she had first hand knowledge of the fact that the contrary is true, and that the College can always gain access to a physician’s communications and records if necessary during the course of an authorized investigation.

[57] Like all other patients, she had effectively waived any objection to regulatory oversight of her physician. Indeed, in Patient A’s case she had waived the objection with particularly well-informed consent, which in effect “turns the wrongful act [of disclosure to a third party] into something that is justified”: Lisa Austin and Trudo Lemmens, “Privacy, Consent, and Governance” in: K. Dierickx, P. Borry, eds., New Challenges for Biobanks: Ethics, Law and Governance (2009), p. 114.

[58] With respect to the second Wigmore criterion, the College states that confidentiality of the patient’s records from the regulator is not essential to the relationship in which they arose. Unlike in the Ryan context, where insulating patient records from the private litigation adversary is necessary to patient-psychiatrist trust, there is no justification for insulating patient records from regulatory authority. To the contrary, what the Law Society Tribunal has said about lawyer-client relationships is equally true of psychiatrist-patient relationships: “a [treatment] program like this one is enhanced when the [patients] seeking [psychiatric] assistance have access to the same regulatory protections as the [patients] of other [medical professionals]”: Law Society of Upper Canada v. Eversley, 2015 ONLSTH 136, para 59.

[59] Counsel for the College argues forcefully that the College can only fulfil its mandate to the public if it is able to review patient care, and that insulating any patient’s care from regulatory oversight places that patient at risk. In the College’s view, the Doctor’s position puts some of the most vulnerable patients — psychiatric patients — at great risk of their own physician asserting that the nature of the relationship necessarily forestalls an investigation.

[60] Accordingly, counsel for the College submits that the circumstances here fail to meet the second Wigmore criterion. This is so not only because maintaining the confidentiality of the records in issue is not essential to the context in which they arose, but because the opposite is true. There are public policy reasons why imposing the cloak of privilege vis-à-vis the regulator over patient health records would be detrimental to the context in which those records were generated. It would mean that psychiatric patients would not enjoy the same protections patients of other medical professionals enjoy.

[61] In terms of the third Wigmore criterion, a similar logic prevails. Again, the College does not dispute that the physician-patient relationship is one that should be “‘sedulously fostered’ in the public good”. However, counsel for the College submits that creating a zone of confidentiality and immunity from regulatory oversight does not foster the kind of physician-patient relationships that are in the public good. Rather, the approach suggested by the Doctor creates a potential breeding ground for improper patient care and/or inappropriate patient relationships.

[62] Since the first three Wigmore criteria have not been met, the fourth – whether the harm of disclosure outweighs the interest in getting at the truth in the investigative process – is not applicable. That said, it is the College’s view that the Doctor’s failure to disclose Patient A’s medical chart makes this question unanswerable.

[63] Without knowing the detailed diagnosis and course of treatment and care rendered by the Doctor, it is not possible to assess whether the risks he describes are genuine. It is, of course, also not possible to assess whether the College’s inability to more deeply investigate the Doctor’s relationship with Patient A poses an even greater risk to the patient. Since we cannot properly assess the risk, we cannot properly weigh the imperative in getting to the truth.

[64] At every turn, the Doctor’s position on confidentiality and privilege creates an almost perfect avoidance of regulatory scrutiny. To be clear, this is not to say that the Doctor is being intentionally manipulative of the system; rather, it is to point out that the Doctor takes a position that is simply too strong for a regulated professional environment to tolerate.

[65] As the College’s counsel puts it, there is a need to strike a balance between patient confidentiality and public protection, and that balance is found in the Code’s requirement of “reasonable and probable grounds.” Once that determination is made, a rule of non-disclosure would tip the balance in a way that endangers the patient and the public.

VI. The Mental Health Act Argument

[66] Under sections 35(6) and (7) of the Mental Health Act, RSO 1990, c. M.7 (“MHA”), the personal health information of a patient in a psychiatric facility cannot be disclosed to a third party – including the College – except under certain strict conditions. The attending physician must state their opinion as to whether disclosure of the information would likely result in harm to the patient or injury to a third party; if so, an in-camera hearing, on notice to the patient, is held to determine whether such harm or injury is likely and whether disclosure is essential in the interests of justice. Under section 7 of the MHA, these provisions apply only to patients held in psychiatric facilities, and not to patients receiving psychiatric care privately in the community.

[67] Counsel for the Doctor concedes that since the Doctor saw Patient A on a private basis and not in a psychiatric facility, the provisions of the MHA, including ss. 35(6) and (7), do not apply. He submits, however, that “[o]n its face this distinction seems arbitrary, since psychiatric charts generated in the community may raise similar safety concerns (from production or use in civil or regulatory proceedings) as those generated in psychiatric facilities.”

[68] The Doctor’s counsel relies on R. v. R.(L.), 100 CCC (3d) 329, 338 (Ont CA), for the argument that under the right circumstances the protections of s. 35 of the MHA could in principle be extended to situations other than where they strictly speaking apply. In R.(L.), Arbour JA (as she then was) indicated that this could be done in conjunction with an expansion of the law of privilege under the Wigmore criteria.

[69] As has been seen, the Wigmore criteria are inapplicable here and do not serve to expand privilege protection to Patient A’s medical chart and communications with the Doctor. Counsel for the College points out that the Doctor’s argument also fails to take into account the full context of the MHA and the way in which ss. 35(6) and (7) mesh with other relevant statutory provisions. It is the College’s view that in fact the distinction between patients in psychiatric facilities and patients who see psychiatrists privately in the community is not an arbitrary one, but rather is based on rational principles and represents sound policy.

[70] The College’s counsel observes that the MHA does not exist in a vacuum, and that there is not an absence of legislation where the MHA does not apply. Specifically, sections 1(a) and 7(1)(b) of the Personal Health Information Protection Act, 2004, SO 2004, c. 3, Sched. A (“PHIPA”) apply to “the use or disclosure of personal health information ... by a health information custodian”. Section 3 of PHIPA makes it clear that the Doctor is a health information custodian with respect to Patient A's medical chart. Accordingly, the fact that this patient chart is not subject to the MHA does not render it subject to the common law as if it fell into a legislative void. Rather, it subjects the question of disclosure to the health privacy and disclosure regime set out in PHIPA and the RHPA/Code. That regime is comprehensive in nature, and applies to situations where the MHA does not.

[71] Section 34.1 of the MHA provides that where there is a conflict between provisions of PHIPA and the MHA, the terms of the MHA override PHIPA. In similar fashion, PHIPA contains provisions with respect to its relationship with proceedings under the Code. Section 2(e) of PHIPA states: “Nothing in this Act shall be construed to interfere with…the regulatory activities of a College under the Regulated Health Professions Act, 1991.” Likewise, s. 76(4) of the Code provides that the College's investigatory authority, including its power to compel production of a patient’s chart, apply “despite any provision in any Act relating to the confidentiality of health records.”

[72] Thus, not only does the MHA not formally apply to a non-institutionalized patient as a matter of form, its principles do not apply in substance. The legislature has made it abundantly clear that the RHPA and Code override PHIPA for non-institutionalized patients in the same way that the MHA does for institutionalized patients.

[73] That is not to say that the College is not subject to any confidentiality regime. In fact, s. 36 of the RHPA provides a number of important confidentiality rules to which the College is compelled to adhere. For example, section 36(3) of the RHPA prohibits disclosure of any information obtained by the College during the course of an investigation from use in civil legal proceedings. Likewise, section 36(2) prevents any person employed, retained, or otherwise associated with the College from being compelled to testify in a civil proceeding about matters that come into their knowledge as a result of their duties for the College. This would, of course, include civil proceedings by or against Patient A, if any were to arise.

[74] The RHPA ensures that no employee or other person associated with the College is permitted to disclose the personal health information of any person except in strictly defined circumstances. These include disclosure with written consent [s. 36(j)], or under specific statutory authority [ss. 36(1) and 36(1)(h)], or to the police in the course of a criminal investigation [s. 36(1)(e)], or to prevent or reduce the risk of serious bodily harm [s. 36(i)], or in a number of other similarly restrictive situations. Full disclosure to the College, combined with tightly structured confidentiality requirements imposed on the College, make up the two sides of the coin when it comes to personal health records relating to an investigation under the Code.

[75] In other words, the MHA is not a unique legislative initiative outside of which the common law governs disclosure of personal health information. It is also not a model for a common law privilege analysis or for establishing a parallel regime regarding disclosure of highly sensitive health information. Rather, the MHA is one aspect of a larger legislative initiative that forms a comprehensive code for the disclosure of personal health information. As part of this overall legislative scheme, the College is entitled to obtain any medical record relevant to its investigation of an Ontario physician.

VII. Patient A's Former Employment Status

[76] As indicated in Part II above, Dr. Prendergast email recommending a formal investigation into the Doctor flagged the confidentiality concerns accompanying this matter. He likewise confirmed in cross-examination that this case presents a unique situation given that there are parallel investigations being conducted by the College: one into the propriety of the Doctor’s treatment of and communications with Patient A, and the other into the breaches of confidentiality by Patient A during the course of her employment with the College.

[77] It is the Doctor’s view that this presents a conflict of interest for the College, and that the College should not be conducting both investigations. It is the College’s view that this presents a dual challenge for the College to address, and that its mandate obliges it to conduct both investigations.

[78] Counsel for the College states that the only reason a “conflict” such as that described by the Doctor’s counsel would be present is if the College were pursuing its investigation of the Doctor in bad faith. Otherwise, there are two parallel investigations going on, one of which – the employment investigation – has already collected all of the information it requires from the Doctor (i.e. the series of emails relating to Patient A’s work product, which the Doctor has confirmed are the entirety of his exchanges with Patient A on this subject). It is only if the point of investigating the rest of the Doctor’s treatment of Patient A were prompted by the College’s employer-employee dealings with Patient A that there would be a real conflict.

[79] There is no evidence of any such ulterior motive on the College’s part. The College, in its capacity as Patient A’s former employer, took back the work product in her email account upon her departure. It found what appeared to be improper breaches of confidentiality on the part of Patient A with the Doctor. It certainly had to ask the Doctor to produce all such communications in his possession. It would have been irresponsible, and a breach of its own ethical obligations to those whose rights of confidentiality were breached by Patient A’s inappropriate correspondence, had it not done so.

[80] At the same time, the College found improper responses from the Doctor to Patient A regarding these breaches of confidentiality. It also found other correspondence between Patient A and the Doctor that suggest an unprofessional level of familiarity, including casual conversations about the state of Patient A’s undergarments. It is not surprising that this kind of communication between a psychiatrist and a patient would prompt an investigation by the College into whether other boundary-crossing issues were present in their relationship. Again, it would have been irresponsible, and a breach of its statutory obligation to act in the public interest, had it not commenced an investigation.

[81] Counsel for the College advises that there is no existing or contemplated legal proceeding by the College against Patient A. And if a proceeding were to be commenced by either side, under s. 36(3) of the RHPA the College is statutorily barred from using any information that it gathers in its investigation of the Doctor in a proceeding by or against Patient A. There is no reason for the College to even contemplate using one investigation to further the other.

[82] With respect, the Doctor’s argument regarding conflict of interest strikes me as more of a sword to wield against the College than a shield to protect against it. There is nothing that the College has done to or requested from the Doctor that it would not do in every case in which an investigation is called for. To put matters at their most basic, the College has asked for the Doctor’s file. It is difficult to imagine them asking for less, regardless of the wrinkle added to this case by the employment context. The supposed conflict identified by the Doctor really has nothing to do with the fulsome production that the Doctor must make in an otherwise valid investigation.

[83] Again, the Doctor’s position seems designed more to immunize the Doctor from further investigation than to prevent any conflict of interest from being acted upon. That, of course, would be a result that would undermine the very public interest that the College is required to protect.

VIII. Scope of the Investigation

[84] In Dr. Prendergast’s note to the Registrar of the College, he stated that the case raised “questions about [the Doctor’s] judgment, his clinical ability to manage complex patients, and his awareness of boundary and confidentiality issues.” The Doctor’s counsel stresses this sentence and uses it as a springboard from which to propose an investigation into the Doctor’s practices that is broad and shallow rather than narrow and deep.

[85] Counsel for the Doctor suggests that, “[t]he College could conduct a broader assessment of the Doctor’s practice, by obtaining a series of present and past medical charts (for patients other than Patient A), and having an expert review them to determine whether there are general problems with the Doctor’s practice.” This would involve production to the College of portions of other patients’ medical charts, although the Doctor has not exactly specified which portions would in his view be appropriate to produce for the investigation.

[86] Counsel for the Doctor goes on to indicate that Dr. Prendergast himself said in cross-examination that a broader examination could be preferable insofar as it might provide a better picture of how the Doctor approaches boundary issues with patients. He contends that the broad approach could potentially reveal whether Patient A represents a standalone case for the Doctor, or is part of a pattern.

[87] An examination of the Doctor’s communications with and treatment of other patients could indeed shed light on whether his practices with respect to Patient A reflect a pervasive trend with his patients. It is ironic, however, that counsel for the Doctor, who so strenuously advocates for Patient A’s confidentiality based on the special sensitivities of psychiatric patients, is willing to delve into other psychiatric patients’ charts. One can only conclude that the Doctor’s proposal is that the College not take a deep dive into any one of them such as that which he opposes for Patient A, but rather that the College take a more cursory look at those records.

[88] This proposal envisions a type of investigation which misses the point of the very thing that prompted the investigation in the first place: the Doctor’s problematic correspondence with Patient A. As the Doctor knows, the telephone call to him from Jill Hulton, which was recorded in her memo of that date, was all about his relationship with Patient A. The Doctor’s letter in response to Ms. Hulton was likewise all about his dealings with Patient A and his acknowledgment of wrongdoing with respect to her sharing with him her College work product. His concerns expressed in the second phone call to Ms. Hulton, again recorded by Ms. Hulton in a memo of the same date, were all about Patient A having access to sensitive information about the College’s investigation of him.

[89] In other words, none of the concerns expressed by College staff or responded to by the Doctor have been with respect to his treatment of patients in general. The Doctor himself has indicated that Patient A has been his most difficult patient, and there is no evidence to counter that assertion. While one can understand the College’s concern that where there is one problem there may be many, it is the one identified problem that is the crux of the investigation.

[90] It is in the context of the Doctor’s emails to Patient A, and the Doctor’s own explanations for those emails, that Dr. Prendergast conducted his review of the situation. In fact, the balance of Dr. Prendergast’s email to the Registrar deals solely with the relationship between the Doctor and Patient A. Counsel for the Doctor focuses on the ‘s’ in the word ‘patients’ used in Dr. Prendergast’s concluding sentence – “his clinical ability to manage complex patients” – and takes the view that the investigation is prompted out of concern for the Doctor’s treatment of patients at large. However, this stresses the syntax used by Dr. Prendergast rather than the substance of his review and recommendation.

[91] The College’s concern in launching the investigation is with the Doctor’s treatment of one specific complex patient. If that leads to concerns about his treatment of other, or all, complex patients, then the investigation may follow that lead. But as a starting point, it is obvious to all who read Dr. Prendergast’s and everyone else’s analysis of this matter that what is in need of investigation is the entirely of the Doctor’s relationship with Patient A. Reviewing his relationship with Patients B through Z, without looking carefully and thoroughly at his relationship with Patient A, will simply not be the kind of investigation that covers the identified problem.

IX. Disposition

[92] The Doctor’s application for an injunction is dismissed.

[93] In view of the fact that Patient A knows and is known to College personnel, the College’s investigation is to be conducted by an outside investigator retained for that purpose who does not know Patient A. To the extent feasible, College staff are not to participate in the investigation. The investigator is to discuss and report their findings with College personnel only to the extent necessary for the College to carry out its regulatory functions.

[94] I am advised by counsel for the Doctor that the entire Patient A medical file has been forwarded to the Doctor’s counsel and is in safekeeping at their law firm. The Doctor is to produce Patient A’s records, chart, correspondence, and other documentation to the College by having the entire file made available to the College’s investigator at the offices of the Doctor’s counsel. The records are to be reviewed by the investigator at the Doctor’s counsel’s offices and are not to be transported or transmitted to the College. To the extent feasible, College staff are not to have access to any of Patient A’s medical records or chart.

[95] With those parameters in mind, there shall be an Order pursuant to s. 87 of the Code directing the Doctor to comply with ss. 75-79 of the Code and, in particular, an Order directing the Doctor to: a) cooperate fully with the investigator appointed by the College; b) produce to the investigator, at the Doctor’s counsel’s office, all medical records and the medical chart for Patient A and all communications to and from Patient A; and c) respond to all reasonable inquiries of the investigator.

Date: February 18, 2020 Morgan J.