Hamilton v. Health Professions Appeal and Review Board, 2022 ONSC 3221
CITATION: Hamilton v. Health Professions Appeal and Review Board, 2022 ONSC 3221
DIVISIONAL COURT FILE NO.: DC-21-257-JR
DATE: 20220829
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJSC McWatt, Backhouse, Sutherland JJ.
BETWEEN:
KIRK HAMILTON M.D.
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and HANNAH LANE
Respondents
Jeffrey E. Feiner and Hilary Brown, Counsel for Applicant
Steven G. Bosnick, Counsel for Health Professions Appeal and Review Board
Peter Wardle and Evan Rankin, Counsel for the College of Physicians and Surgeons of Ontario
Hannah Lane, self represented
HEARD by videoconference in Toronto on March 31, 2022
Sutherland J.
Introduction
[1] Dr. Kirk Hamilton (the Applicant) seeks judicial review of the decision of the Health Professions Appeal and Review Board (the Board) dated February 26, 2021 (the Decision) upholding the decision of the Inquiries, Complaints and Reports Committee (the Committee) dated September 13, 2019.
[2] The Committee investigated a complaint lodged by Hannah Lane and disposed of the complaint by issuing a caution and requiring the Applicant to prepare a written report on the knowledge he obtained from taking courses since the complaint was lodged.
[3] The Applicant contends that the decision of the Board was unreasonable and was procedurally unfair.
[4] For the reasons that follow, the application for judicial review is dismissed.
Background
[5] The Applicant is a family physician practising palliative and obstetrical care with privileges at London Health Sciences Centre (London Health). As a physician, he is regulated and governed by the Regulated Health Professions Act 1992[^1] (RHPA) and the Medicine Act, 1991[^2].
[6] The Applicant provided prenatal care to Hannah Lane and inpatient care for her in the period January 26 and 26, 2018. Ms. Lane had attended at the hospital for the induction of labour and was admitted to the hospital in the evening of January 25, 2018. In the morning of January 26, 2018, a series of decelerations of the fetal heart rate occurred. Later in the morning the obstetrician on-call at the hospital, Dr. Chan, performed an emergency caesarean section for Ms. Lane.
[7] Unfortunately, Rosabelle was born with no vital signs. Despite significant resuscitation attempts, Rosabelle developed multisystem organ failure. Life support was withdrawn on January 28, 2019. The cause of death was attributed to hypoxic-ischemic encephalopathy due to intrauterine asphyxia, the cause of which could not be ascertained.
[8] On January 12, 2019, pursuant to the Health Professions Procedural Code[^3] (the Code), Ms. Lane filed a complaint with the College of Physicians and Surgeons (the College) concerning the care provided by the Applicant, Dr. Chan and Dr. Rodowa, an obstetrical resident.
[9] The complaint alleges that Dr. Hamilton failed to advise her that he is a family physician practicing obstetrics and not an obstetrician, failed to adequately monitor Ms. Lane’s labour and failed to attend Ms. Lane in labour when paged with concerns.
The Committee Decision
[10] The Committee was composed of two obstetricians and one public member.
[11] The Committee has the following powers under the Code:
What a panel may do
26 (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:
Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.
Refer the member to a panel of the Inquiries, Complaints and Reports Committee under section 58 for incapacity proceedings.
Require the member to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.
Take action it considers appropriate that is not inconsistent with the Health Profession Act, this Code, the regulations or by-laws. 2007, c. 10, Sched. M, s. 30.
[12] After the investigation, receiving all relevant reports and documents and the submissions of the of the Applicant, the Committee concluded that:
a. The Applicant failed to appropriately interpret and act upon “atypical and abnormal” Fetal Heart Ratee (FHR) tracings during the second stage of Ms. Lane’s labour which indicated the need for attentive management.
b. There was a need for appropriate communication with Obstetrics.
c. Dr. Chan was not responsible or did not share the responsibility with the Applicant’s care for Ms. Lane.
d. The Applicant failed to act appropriately after Dr. Chan’s intervention at approximately 8:30 a.m. and when the FHR tracing continued to be concerning.
e. There were deficiencies demonstrated in the Applicant’s management of Ms. Lane’s case that remained deeply concerning.
[13] On July 19, 2019, prior to the Committee’s decision, the Applicant was contacted by the College’s investigator and was provided with a proposal that the Applicant enter into an undertaking to undergo self directed learning. The Applicant responded on August 14, 2019, and proposed a remedial agreement, contending that a remedial agreement was better aligned with the decision-making framework in the Transparency Initiative and Decision Tree published framework in 2015 (the Initiative).[^4] The Initiative was published to provide guidance on its consideration of clinical complaints and the factors that would lead to different possible outcomes. One of the purposes of the framework is to assist the Committee “in evaluating the degree of risk posed in cases.” [^5]
[14] The investigator advised that if the Applicant did not wish to enter into an undertaking, which would appear on the College’s public registry until the undertaking is satisfied, the matter would proceed and that the Committee would have all dispositions available to them.
[15] The Committee did not respond to the Applicant’s proposal of a remedial agreement.
The Board Decision
[16] The Applicant requested a review of the Committee’s decision. He submitted, among other things, that the Committee disregarded and departed from its decision-making framework as set out in the Initiative and ignored and/or improperly disregarded the expert opinion provided by the Applicant’s retained expert, Dr. Smith.
[17] Section 29(2) of the Code provides the Board with its statutory jurisdiction and authority to review complaint decisions of a panel of the Committee. Section 29(2) reads:
29(2) The complainant or the member who is the subject of the complaint may request the Board to review a decision of a panel of the Complaints Committee unless the decision was,
(a) to refer an allegation of professional misconduct or incompetence to the Discipline Committee; or
(b) to refer the member to the Executive Committee for incapacity proceedings.
[18] Section 33(1) indicates that the Board may consider both the adequacy of the investigation and the reasonableness of the decision. Section 33(1) reads:
33(1) In a review, the Board shall consider either or both of,
(a) the adequacy of the investigation conducted; or
(b) the reasonableness of the decision.
[19] The Board confirmed the decision of the Committee and found the decision reasonable.
[20] The Board rejected the claims of the Applicant. The Board found that the Applicant was fully aware of the issues identified by the Committee and had the opportunity to make informed submissions. The Board found that the Committee had all of the relevant medical notes available to it to make the decision, the findings of the Committee were reasonable and there was support in the record for the findings made. The Board recognized the expertise of the members of the Committee and found that there was no indication that the panel had applied its expertise inappropriately.
[21] The Board also concluded that it was not in its mandate to review the negotiations between the Applicant and the Committee prior to the Committee’s decision.
[22] After reviewing the factors that the Committee took into account in coming to its decision, the Board determined that the decision was reasonable and confirmed the Committee’s decision.
Issues raised in the Application
[23] The issues raised are:
Was the Board’s failure to assume jurisdiction to review the Committee’s failure to adhere to its own published decision-making framework unreasonable?
Did the Committee and/or the Board misapprehend the evidence in the record rendering the decision unreasonable?
Standard of Review
[24] The parties agree that the standard of review on the Board’s decision is reasonableness.[^6] Notwithstanding that this is not a judicial review of the Committee’s decision, this Court may consider the reasonableness of the underlying Committee’s decision to ascertain the reasonableness of the Board’s decision.[^7]
Analysis
Issue 1: Was the Board’s failure to assume jurisdiction to review the Committee’s failure to adhere to its own published decision-making framework unreasonable?
[25] The Applicant contends that the Committee failed to provide the Applicant with procedural fairness when it rejected the Applicant’s proposal of remedial resolution and imposed a caution without providing the Applicant with the opportunity to accept the undertaking. The Board’s decision was unreasonable in failing to address the procedural unfairness contention of the applicant.
[26] I do not accept this submission.
[27] In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada described a non exhaustive list of factors that the Court is to take into consideration in determining if procedural fairness has been contravened considering the factual context of the specific case.[^8]
[28] The Supreme Court stated:
…The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process appropriate to the statutory, institutional and social context of the decisions.[^9]
[29] In the circumstances of this matter, there is no basis for finding that the decision of the Committee was unfair or impartial or that the Applicant did not know the case against him and did not have the opportunity to present his case.
[30] The investigator sent a letter dated August 14, 2019, indicating that the Committee proposes an undertaking for the Applicant to undergo self directed learning. The letter indicates that if the Applicant does not accept the proposal of the Board, the Board will proceed with all disposition remedies available to them.
[31] The Applicant did not accept the proposal and replied by sending a response letter arguing that a remedial remedy is more appropriate. The Committee did not respond to the Applicant’s letter.
[32] This is not a breach of procedural fairness. The letter of the investigator was a proposal to resolve the issues of the complaint. This proposal was not accepted, and the counter proposal of the applicant was not accepted. These were proposals for a voluntary resolution and not part of the adjudication of the complaint. As the letter from the investigator indicated, if not agreeable it would proceed with all disposition remedies available to it. The Committee proceeded and made a decision. The disposition that the Committee made was within its statutory authority to decide.
[33] I reject the Applicant’s submission that the Board should have reviewed the negotiations of a voluntary agreement between the Applicant and the Committee. The Board’s jurisdiction for review is stated in paragraph 33(1) of the Code. The Board is to review the adequacy of the investigation and the reasonableness of the decision. The Applicant has not provided any judicial authority that the Board has the jurisdiction to review negotiations for a voluntary agreement before the hearing and before the decision rendered by the Committee. The negotiations in this matter for a voluntary agreement that are not finalized by acceptance is not within the purview of the Board adhering to its statutory authority pursuant to section 33(1).
[34] I find that the determination of the Board was reasonable.
[35] The Applicant also submits that the Board’s failure to assume jurisdiction of the Committee’s failure to abide by the Initiative was unreasonable.
[36] The Initiative provides guidelines and a decision tree for the purpose of transparency to the public and its members along with assisting the Committee in providing a framework for its decision making. The Initiative is not binding. The Committee is not obligated to follow the published Initiative decision framework.
[37] The Applicant relies on a decision of the Board in D.P. MD v. S.S.[^10], where the Applicant was required to complete a Specified Continuing Education or Remediation Program (SCERP). The Board in that case noted that the Committee never offered a voluntary agreement and determined that the decision of the Committee was unreasonable. The Board referred the matter back to the Committee to consider that the Applicant completed two courses in the SCERP and to provide a further decision with reasons. In coming to this decision, the Board addressed the argument of the Applicant that the Committee ignored its own decision-making framework as set out in the Initiative. The Board was mindful that the Initiative is not binding on the Committee but stated:
Nevertheless, the Board notes that it would expect the Committee to decide the appropriate disposition based on the particular facts of the complaint and in keeping with its own published decision-making framework as set out in the documents to guide and inform its members. Otherwise, decisions could appear to lack transparency and it can be confusing for the profession and the public when a process outlined in a newsletter set to a member is not followed.
[38] The case of D.P. is distinguishable. First, there was no voluntary agreement offered in D.P. and further, there was no factual determination that the care of D.P. was deficient as the Committee found in this matter. These two significant determinations make the decision in D.P. not of assistance in this matter.
[39] In addition, the Committee did generally consider the Initiative in this case. The Committee, through the letter of the investigator, did offer a voluntary agreement. Notwithstanding that the Applicant appeared to be cooperative and voluntarily completed several relevant courses, the Committee determined that it was deeply concerned about the extent of the deficiencies demonstrated in the Applicant’s management in this case. It was the Applicant’s position that he met the standard of care and there was no deficiency. The Committee did not agree. Given the finding with respect to the deficiencies of management of the care, a caution was appropriate.[^11] This appears to be in accord with the Initiative in that from the reasons of the Committee, the Applicant needed more than self directed education. The Applicant was cooperative and thus an outcome could be a voluntary undertaking and/or caution-in-person.[^12]
[40] The Board in its decision, carefully reviewed the reasons of the Committee and determined that the decision was reasonable based on the record before the Committee and the Committee’s obstetrical experience. The Board found that the Committee’s decisions demonstrated a coherent rational connection between the facts and the decision. The reasoning “ as a whole was transparent, intelligible and justified.” [^13] Thus, the disposition of a caution was reasonable and “addresses the areas of concern identified by the Committee.”[^14]
[41] I see no reason to interfere with the findings of the Committee and the decision of the Board. The Board, through its reasons, ascertained that the Committee did follow the Initiative framework by taking into consideration all relevant facts, determining the extent of the conduct of the Applicant and by offering a voluntary agreement of an undertaking. The Committee implicitly concluded that self-directed education was not appropriate in the circumstances. The Board’s reasoning and conclusions on the Committee’s reasons were coherent, transparent, and reasonable.
[42] It is not for this Court to reweigh the relevant facts on the medical deficiencies or appropriateness of the medical care of the Applicant, as found by the Committee and upheld by the Board.
[43] I am not persuaded by this ground.
Issue 2: Did the Tribunal err in law by failing to consider relevant evidence?
[44] The Applicant contends that the Board failed to conduct a meaningful reasonableness review in the Committee’s rejection of the expert report of Dr. Smith provided by the Applicant. The Committee chose to disregard the entirety of the report.
[45] The Committee, as with any evidence, may accept some, all or none of the evidence presented. The Committee is entitled to a limited weighing of the facts.[^15] The Board noted the specialized expertise of the Committee panel regarding the expected standards of the medical profession. The Board noted that the Committee applied its special knowledge and expertise in reviewing the care provided by the Applicant.
[46] The Board found no indication that the Committee inappropriately applied its expertise.
[47] In support of his position that the findings were unreasonable, the Applicant seeks to have this Court substitute the medical findings of the Committee for the opinion of the Applicant’s expert that the Applicant had met the standard of care. It is not the role of this Court to consider whether it would arrive at the same medical conclusions of a specialized Committee unless their findings are not supported by the evidence, not internally consistent or transparent.
[48] I am not convinced that the Board’s conclusion concerning the Committee’s determination that the Applicant had not met the standard of care was unreasonable.
[49] The Committee had the relevant evidence before it. It had specialized medical knowledge relevant to the issues raised in the complaint. There was no evidence that the Committee misapplied that knowledge.
[50] I am also not persuaded by the submission that the Board simply relied upon the Committee’s “unsupported and unjustified conclusions”[^16] and did not undertake a meaningful reasonableness review. The Committee in its decision at page four sets out its reasons why it does not accept the Applicant’s position and that of the Applicant’s expert.
[51] The Board indicated that it was not in a position to engage in a medical review of a specialized Committee on the medical professional care provided. The Board indicated, correctly at paragraph 31, that its role was to review whether the decision of the Committee is transparent, intelligible, and justified based of the factual matrix before the Committee.
[52] As Vavilov tells us:
[93] An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.
[95] That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.[^17]
[53] There is no basis for the Applicant’s contention that the Board’s reasoning was deficient or unreasonable. The Board reviewed the Committee’s decision and reasoning. It found that the reasoning of the Committee was justified, intelligible and transparent. Using its expertise, the Committee provided reasons for concluding that there were deficiencies in the standard of care provided by the Applicant to his patient and hence, the justification for its decision of a caution. Those reasons are supported by the evidence as interpreted by the Committee. There is nothing unreasonable about the Board’s decision to uphold the Committee’s decision, given the expertise of the Committee and the factual matrix of the complaint.
[54] I find no reason to overturn the Board’s conclusions. I dismiss this ground.
Conclusion
[55] In the result, the application is dismissed. In accordance with the agreement of the parties, the Board and Ms. Lane are not seeking costs but the successful party between the Applicant and the College is entitled to $6,000 in costs. It is ordered that the Applicant pay costs to the College in the amount of $6,000.
Sutherland J.
I agree _______________________________
ACJSC McWatt
I agree _______________________________
Backhouse J.
Released: August 29, 2022
CITATION: Hamilton v. Health Professions Appeal and Review Board, 2022 ONSC 3221
DIVISIONAL COURT FILE NO.: 21-257-JR
DATE: 20220829
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJSC McWatt, Backhouse, Sutherland JJ.
BETWEEN:
KIRK HAMILTON MD
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND HANNAH LANE
Respondents
REASONS FOR JUDGMENT
Sutherland, J.
Released: August 29, 2022
[^1]: SO 1991, c. 18. [^2]: SO 1991, c.30. [^3]: Being schedule 2 to the RHPA [^4]: CPSO Discussions of Transparency Initiative and Decision Tree, Dialogue, Issue 2, 2015. [^5]: Ibid, p. 33. [^6]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras 16 and 23; Montour v. Health Professions Appeal and Review Board, 2019 ONSC 3451 (Div. Ct.) at para 28. [^7]: Supra, Montour, note 6. [^8]: 1999 699 (SCC), [1999] 2 SCR 817, at paras. 21 to 28. [^9]: Ibid, at para. 28. [^10]: 2018 12277 (ON HPARB). [^11]: Decision of the Committee dated September 13, 2019, HPARB 1982, at 1986. [^12]: Supra, note 4, the decision tree, pp. 32-33 [^13]: HPARB 2518 at 2533 [^14]: Ibid [^15]: Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246 (Div. Ct), at para.79. [^16]: Factum of the Applicant at para. 76. [^17]: Ibid, note 5, paras 93 and 95.```