Court File and Parties
2022 ONSC 44
DIVISIONAL COURT FILE NO.: DC-21-305- JR
DATE: 20220105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Coats and Favreau JJ.
BETWEEN:
DR. LUAY ALI AL-KAZELY
Applicant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Neil M. Abramson & Robert Barbiero, for the Applicant
Carolyn Silver, for the Respondent
HEARD at Toronto (by videoconference): November 24, 2021
McWatt A.C.J.S.C.J.
REASONS FOR DECISION
Nature of the Proceedings
[1] This is an application for judicial review of the decision of the College of Physician and Surgeons’ Inquiries, Complaints and Reports Committee (ICRC) dated March 10, 2020 (the Decision) ordering the Applicant to undergo a specified continuous education or remediation program (SCERP) in response to its concerns about his medical record-keeping. The Applicant was previously required to complete a SCERP and a reassessment in 2017 regarding his medical record-keeping. He now seeks to set aside the Decision on the basis that the ICRC’s conduct constitutes an abuse of process. In the alternative, the Applicant seeks to set aside two provisions of the Decision as unreasonable.
[2] The College asks that the application be dismissed.
The Court’s Jurisdiction and the Standard of Review
[3] The Divisional Court has jurisdiction over this matter pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[4] The parties agree that the standard of review applicable to the Decision is reasonableness.
[5] There is no standard of review applicable to questions of procedural fairness. The question is whether the rules of procedural fairness were adhered to (Geris v. Ontario College of Pharmacists, 2020 ONSC 7437, at para. 15).
[6] The Applicant challenges the ICRC’s conduct as an abuse of process. An abuse of process will be established where proceedings are oppressive and vexatious and violate the fundamental principles of justice underlying the community’s sense of fair play and decency (Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, at paras 35-36).
Background
[7] Dr. Al-Kazely is a 43-year-old doctor practicing family and walk-in medicine in a group practice in Hamilton, Ontario. He obtained a certificate of independent practice from the College authorizing him to practice medicine in Ontario in 2007.
2016 Advice re Record–Keeping
[8] On January 20, 2016, the ICRC first considered the Applicant’s medical practice arising from the investigation of a complaint by a patient who alleged that Dr. Al-Kazely had been rude and dismissive and did not properly assess her mental state during an appointment. The ICRC advised the doctor on improving the quality and completeness of his medical records.
[9] Second, on October 13, 2016, the ICRC considered the results of another investigation arising from a complaint by a patient who was concerned that Dr. Al-Kazely had failed to recognize and diagnose the signs of a stroke. The ICRC again advised Dr. Al-Kazely to make sure that his notes were complete and that his diagnosis and treatment were supported by his documentation.
2017 SCERP re Record-Keeping
[10] Next, on December 14, 2017, the ICRC considered the results of two further patient complaint investigations. The College issued two more decisions expressing concerns again related to the Applicant’s record-keeping practices, clinical care and communication with patients. Its concerns included the following:
a. The Applicant’s records were “exceptionally sparse” and did not document relevant examinations.
b. For one of the complainants, who attended on one occasion requesting a psychiatric referral, the Applicant’s records included only a one-line description of the patient’s problems at work and did not indicate whether the Applicant had conducted a mental status exam nor did they document the advice provided to the patient.
c. For the same patient, the Applicant’s records offered no rationale for his refusal to extend the patient’s medical leave from work.
d. Also, for the patient, who attended with a respiratory chest infection, the Applicant’s records did not document any chest examination.
e. For the second complainant, Dr. Al-Kazely continued her on a course of antibiotics despite receiving a negative test result for strep throat. He also failed to report the test results to the patient.
f. For this patient at a subsequent visit, the Applicant did not record his discussion with the patient about her bowel or anxiety issues.
g. The Applicant filled out the patient’s Canada Pension Plan forms incorrectly by recording that she had no prior medical history when he knew that she had a history of multiple sclerosis.
[11] In both decisions, the ICRC expressed concern that Dr. Al-Kazely had not improved his record-keeping practices even after receiving advice about the issue from the ICRC on two previous occasions in 2016.
[12] The ICRC required Dr. Al-Kazely to complete a SCERP (“2017 SCERP”) in order to address his recordkeeping deficiencies. The terms of the 2017 SCERP included:
• Completion of the University of Toronto’s Medical Record-keeping Course;
• Completion of 2 CMPA online modules relating to medical record keeping;
• Review and written summary of the CPSO’s policy on Medical Records; and
• A reassessment of the Applicant’s practice, to take place approximately 6 months after completion of the education program.
[13] The ICRC ordered the 2017 SCERP as the disposition for the decisions arising from the two complaints.
[14] In both decisions, the ICRC outlined its rationale for requiring a reassessment as a component of the SCERP. The decision set out that the reassessment was a discrete and integral part of the SCERP process and that a reassessment was necessary to ensure that the Applicant completed the required remediation and education in order to correct the issues that the Committee identified to be a concern in the doctor’s practice. The reassessment was timed to occur approximately six months after the Applicant’s completion of the remediation so that the College could determine if he had incorporated the corrective changes into his practice. The College would also select an independent physician to conduct the reassessment to make sure that the necessary changes were made.
2019 Reassessment: Ongoing Record-Keeping Deficiencies
[15] The Applicant completed the educational terms of the 2017 SCERP between January and May 2018. For the reassessment, the College Compliance Monitor obtained 25 of the doctor’s patient charts from December 2018 to April 2019 which post-dated his completion of the SCERP.
[16] Because the Applicant practiced in a group practice/walk-in clinic, the charts documented care from multiple physicians in addition to the Applicant. Several of the charts obtained by the College did not document any care provided by Dr. Al-Kazely because he had not seen the patients from December 2018 to April 2019. The College Monitor did not notice that some of the charts selected did not reflect care provided by the Applicant.
[17] Dr. Jacqueline Goscimski was retained in April 2019 to conduct the reassessment and was given the patient charts obtained by the College. The fact that the records documented care by multiple physicians and that some of the records did not include any care provided by the Applicant was not conveyed to her.
[18] Dr. Goscimski completed her initial assessment report dated July 11, 2019. She identified several concerns, including documentation and clinical care. She did not know that some of her concerns related to care provided by other physicians and not Dr. Al-Kazely. The report was given to the Applicant for his response.
[19] The Applicant’s response, dated August 10, 2019, pointed out that the charts reviewed by the Assessor included several for which he had provided no care to the patient and that some of the criticisms outlined in her report related to care provided by other physicians.
[20] As a result, the College requested a revised report from Dr. Goscimski. That report was delivered September 12, 2019 and covered care provided by the Applicant to 20 patients. The revised report incorporated responses provided by the Applicant to the Assessor’s criticisms of him in her initial report. The Assessor concluded that the doctor exhibited a number of deficiencies, primarily relating to record-keeping. They included the lack of documentation to justify the steps he had taken or the assessment he had performed and a failure to document relevant clinical information
[21] In her initial report, the Assessor had concluded that the Applicant’s clinical care demonstrated a lack of knowledge, skill or judgment, but she revised her opinion after reviewing the Applicant’s responses to her findings. She still expressed concern, however, that she could only conclude that his care was appropriate after reviewing his written explanations. None of his clinical notes reflected the same reasoning in the medical charts. She set out, as a result, that “there is clearly a discrepancy between the level of knowledge and judgement that Dr. Ali Al-Kazely displays in his explanations versus what is charted in the EMR”.
[22] The Assessor summarized the deficiencies in the Applicant’s record-keeping as follows:
i. Consistent use of templates without differentiating factors;
ii. Broad, over-generalized systems reviews which lacked direction. He conducted numerous reviews of systems, but they lacked substance and were quite uniform;
iii. The diagnostic testing he ordered did not follow from clinical questions to be answered (although in his responses, Dr. Al-Kazely had valid explanations for the tests);
iv. Lack of targeted questions specific to the diagnosis in question and lack of targeted physical exams (for example, conducting a neurologic exam in a patient presenting with undifferentiated chest pain);
v. Insufficient documentation of exams (for example, “neuro exam normal” is not sufficient when there is no documentation of what was examined);
vi. Failure to document psychiatric presentations, such as mood and functional status;
vii. Failure to document the advice he said he gave patients.
[23] In his second response, dated October 8, 2019, Dr. Al-Kazely rejected the Assessor’s criticisms of his documentation. Without addressing the substance of the Assessor’s concerns regarding lack of targeted exams, he justified his use of generalized systems reviews as necessary in order to bill OHIP for a general assessment. He indicated that the documentation issues the Assessor raised were not of much concern and were not relevant to patient care, but were, in fact, “minimal and have no real impact on the patient care I had provided” and was “nice to have but not crucial in all the cases.”
[24] The Applicant also rejected the Assessor’s concerns and dismissed the report as “poorly written”. He complained that she had been paid more to write the report than he had made seeing the patients, and wrote that he hoped she had “gained some experience” from the assessment, “as learning is a life-long process”.
[25] The Assessor addressed the Applicant’s response in an addendum report. She explained the misunderstanding over what records she had used in her assessment when she had provided her initial report. She indicated that her revised report dealt only with patient files relevant to the Applicant and the report took into account all of his explanations. With respect to his response regarding generalized systems reviews, she reiterated that while a general review may be required to bill the A003 OHIP code, the Applicant’s notes nonetheless lacked a description of the patient’s symptoms and contained uniform templates with generalized “head to toe” exams, and a “kitchen sink” approach which was not optimal. She maintained her opinion regarding the Applicant’s substandard record-keeping.
[26] The addendum was provided to Dr. Al-Kazely for comment. Dr. Al-Kazely forwarded a third response to the Compliance Monitor. That third response reiterated his comments regarding the individual patient charts under review. The Applicant again levelled criticisms at the Assessor personally, including that the font she used was too large, that she had charged too much to write her report and he implied that she was inexperienced. He did not acknowledge that there may be valid concerns regarding his records. The Applicant’s third response was not included in the package of materials ultimately provided to the ICRC.
Dr. Al-Kazely Declines Voluntary Remediation; Registrar Authorizes Investigation
[27] On November 5, 2019, the Compliance Monitor wrote to Dr. Al-Kazely and advised that the file would be returned to the ICRC for review. The Monitor asked the Applicant if he was willing to enter an undertaking to address the reassessment outcomes. The proposed elements of the undertaking included three months of low-level supervision; a review and written summary of CMPA modules; and a practice reassessment with a different assessor. Dr. Al-Kazely did not agree to the undertaking.
[28] The compliance file was reviewed by a College Medical Advisor, who concluded it should be forwarded to the Registrar to consider the formation of reasonable and probable grounds and the initiation of a Registrar’s investigation. The Medical Advisor noted that the Assessor had concerns regarding medical record-keeping and had identified consistent deficiencies. The Medical Advisor observed that the Applicant’s position was that his records were adequate and that he did not appear to have the insight necessary to recognize his deficiencies. The Advisor noted that the file was ready for the ICRC to consider and recommended that the Registrar appoint investigators so that the Committee could have the full range of disposition options open to it, including remediation.
[29] The Registrar reviewed the file and formed the belief that there were reasonable and probable grounds that Dr. Al-Kazely had engaged in professional misconduct or was incompetent. An appointment of investigators was approved by the ICRC and Dr. Al-Kazely was given the opportunity to provide submissions. He retained counsel who provided a response for the ICRC dated February 7, 2020. In the response through counsel, Dr. Al-Kazely proposed that no further action be taken by the ICRC with respect to the results of the reassessment and he sought no further negotiation of voluntary remediation.
[30] The Applicant provided no expert evidence contradicting the Assessor’s conclusions regarding the deficiencies in his practice.
ICRC Decision of March 10, 2020
[31] On March 10, 2020, the ICRC considered the results of the investigation, the Assessor’s three reports, responses from the Applicant dated August 10, 2019 and October 8, 2019 and the response of counsel dated February 7, 2020.
[32] The College concedes that the Enhanced Case Note (an annotated table of contents provided to assist the Committee in navigating the materials) erroneously set out that Dr. Al-Kazely “may have committed an act of professional misconduct by declining to negotiate an undertaking with the College following a negative reassessment report”.
[33] In its decision, however, the ICRC accepted the Assessor’s conclusions regarding the deficiencies in the Applicant’s practice. It considered and rejected his objections to the report, including that the assessment was overly harsh, did not distinguish his care from that of other physicians, and was not professional, constructive or objective. The ICRC found the following:
The Committee has considered the Respondent’s concerns about the reassessment of his practice and is satisfied that the Reassessor’s amended report is reliable. The Reassessor removed her comments about care that physicians other than the Respondent provided to the patients. The amended report demonstrates that the Reassessor continued to have concerns about the Respondent’s record-keeping, including that the Respondent’s notes were brief without sufficient detail of history or physical examination, the management plan was not always documented and templates formed a significant component of the record with similar entries for many patient visits.
The Respondent considered the Reassessor’s comment that he employs a “kitchen sink approach” to be unprofessional, but the Committee does not view this as inflammatory language. We consider it to be a reasonable manner of stating that the investigations the Respondent ordered and the care he provided were not always completely applicable to the patient’s presentation or clinical situation.
[34] The ICRC went on to find that despite having taken medical record-keeping courses as required in his previous SCERP it “remain[ed] concerned that he has not remediated adequately.” and concluded that:
In the circumstances and given the Respondent’s refusal to negotiate an undertaking with the College, the Committee decided that it was appropriate to require a specified continuing education and remediation program, to address the educational needs we perceive in this case.
[35] The Committee directed that this second SCERP should include terms that the Applicant: i. Repeat the two CMPA eLearning Modules on Documentation; ii. Review and reflect on the College’s medical record-keeping policy; iii. Complete three months of clinical supervision, consisting of monthly meetings and a review of 15 charts at each meeting; and iv. a reassessment, consisting of a review of 15 charts.
The Applicant’s Position
[36] The Applicant asks that the 2020 decision of the ICRC be quashed in its entirety or, in the alternative, that the Employer Notification Provision and all, or part, of the Re-Assessment Provision be quashed.
[37] He argues, first, that the process was not fair as his Final Rebuttal was not considered by the ICRC in reaching their Decision. He argues that this and the two grounds that follow amount to an abuse of process on the part of the College.
[38] The Applicant next argues that the purpose of the investigation was improper. It was initiated in order to force him into terms and conditions to which he would not voluntarily agree by way of the Proposed Undertaking.
[39] The Applicant also relies on the decision of the Divisional Court in Zaki v. College of Physicians and Surgeons of Ontario , 2017 ONSC 1613 at paragraphs 34, 37-38, in which the Divisional Court warned the College against subjecting a physician to a “never-ending cycle of assessment,” and held that the ICRC’s authority to order an assessment must always be directly related to, and be a necessary consequence of, its decision to order a SCERP. The Applicant submits that the Decision will expose him to further assessments, strain, embarrassment and cost. He asserts that the conduct of the ICRC fits squarely within the “never-ending cycle of assessment” the Court has warned against.
[40] In the alternative, Dr. Al-Kazely argues that although he has agreed that the standard of review applicable to the Decision is reasonableness, reasonableness is not a “rubber-stamping process”. It remains a “robust form of review” (Vavilov v. Canada (AG), 2019 SCC 65, per Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. at para. 13). He relies on the Supreme Court’s characterization, in Vavilov, at paragraph 68, of reasonableness review as necessarily limited by the governing statutory scheme:
Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority
[41] The Applicant asserts that reasonableness remains grounded in the existence of justification, transparency and intelligibility in the decision-making process. The Decision must fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Vavilov, at para. 86, citing Dunsmuir v. New Brunswick, 2008 SCC 9, per Bastarache and LeBel JJ. at para. 47).
[42] The 2020 Decision, he maintains, does not fall within a “range of possible, acceptable outcomes”. It is unreasonable.
Analysis
A. Abuse of Process
i. The Law
[43] In order to constitute an abuse of process, proceedings must be “unfair to the point that they are contrary to the interests of justice”. An abuse of process is established only where: “(1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency.” (Toronto (City v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 35, 2003 SCC, at para. 35).
[44] The Applicant asks that the ICRC’s decision be quashed as an abuse of process. A stay of proceedings is the remedy for an abuse of process and is reserved for only the “clearest of cases” (R. v. Regan, 2002 SCC 12 at para. 53; R. v. Piccirilli (sub nom. R. v. Babos), 2014 SCC 16 at para. 31). Courts must consider whether the Applicant has been prejudiced and, if so, whether there is an alternate remedy capable of addressing the prejudice. Even where prejudice is established, the onus is on the Applicant to establish that the interest in denouncing the conduct outweighs the public interest in proceeding (R. v. Regan, at para. 57; Babos, at para. 32).
[45] In this case, as reviewed below, the Applicant relies cumulatively on the failure to provide his third rebuttal to the ICRC panel, the stated purpose of the Registrar’s investigation and that this is the second time the ICRC has ordered a SCERP to argue that there has been an abuse of process.
[46] While I accept that the ICRC panel should have been given the Applicant’s third rebuttal, I do not find anything improper in the other two issues raised by the Applicant, and, more importantly, I do not accept that these circumstances amount cumulatively to an abuse of process.
ii. Dr. Al-Kazely’s “third rebuttal”
[47] There was procedural unfairness when the Applicant’s third rebuttal, dated November 1, 2019, was not provided to the ICRC panel. The College agrees with this finding. However, this was a minor breach of procedural fairness that had no impact on the final decision and that certainly does not warrant a finding of abuse of process.
[48] The Applicant has not cited any error in the ICRC Decision as a result of this breach and I can find no error in the Decision because of it. Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”.
[49] The fact that the Applicant’s Final Rebuttal was not before the panel had no impact on the ICRC’s decision. Dr. Al-Kazely’s third response largely reiterated the points made in his two initial responses. In his third response, Dr. Al-Kazely maintained his previously expressed rejection of the Assessor’s opinion in its entirety. He also maintained his already expressed position that there were no real problems with his medical records. The ICRC accepted the Assessor’s opinion and there was no competing expert evidence to challenge their conclusion that the Applicant’s record-keeping was inadequate and that “it was appropriate to require a specified continuing education and remediation program, to address the educational needs we perceive in this case”.
[50] I agree with the College’s submission that, had the third response been before the ICRC and considered by the panel before in their decision, the panel may very well have concluded that this third response only exemplified the Applicant’s lack of insight and it could have served to further confirm their decision.
[51] The breach of procedural fairness did not occasion any substantial wrong or miscarriage of justice.
iii. “Purpose” of Registrar’s Investigation
[52] I do not agree with the Applicant’s submission that the “sole purpose of the Investigation was to force upon Dr. Al-Kazely terms and conditions to which he would not voluntarily agree by way of the Proposed Undertaking”. There is no evidence before the Court to support such a claim.
[53] The Registrar appointed investigators in this matter pursuant to s. 75(1)(a) of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991, S.O.1991, c. 18), which specifically provides that the Registrar may do so if she believes “on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent”. The ICRC must then approve the appointment.
[54] First, the Registrar’s discretionary decision to appoint investigators in this matter is not the subject of this application. This application relates to the ICRC’s decision imposing a SCERP. The Applicant is not seeking judicial review of the Registrar’s appointment of investigators but, instead, uses the wording of the appointment, taken directly from the Code, as evidence to undermine the ICRC’s decision.
[55] Second, as this is not a review of the Registrar’s decision, the materials the Registrar considered when she formed her belief are not before this Court. This Court’s jurisdiction does not include speculating about what materials the Registrar considered or why she considered the statutory conditions for appointing investigators to have been met. The Registrar’s “purpose” in appointing investigators is also irrelevant to this court’s consideration of the ICRC decision. The Registrar’s appointment of investigators does not bind the ICRC to a particular outcome but rather ensures that the ICRC can fulfil its statutory mandate by screening the matter appropriately (whether by referring it to discipline, requiring some form of remediation, or taking no action).
[56] Finally, the Applicant’s contention that the Registrar’s appointment of investigators was improper and was done because the Applicant refused to cooperate with the College to negotiate an undertaking is groundless. The Registrar is not barred from initiating an investigation if a member refuses voluntary remediation. In fact, it is a necessary step for the College to use its statutory powers to address the evidence of substandard practice. It would be a dereliction of the College’s duty to protect the public if it failed to act in the face of evidence that a physician was practicing below the standard and was unwilling to voluntarily engage in the required remediation.
iv. A Second SCERP following unsuccessful remediation
[57] The Applicant relies singularly on the case of Zaki to support his contention that imposing a second SCERP was “abusive”. Not only are the facts of that case distinguishable from this one, but that decision does not stand for the proposition that a second SCERP following a reassessment is abusive. The ICRC decision in Zaki was overturned for a breach of procedural fairness (the member had not been given the expert’s addendum report). The Court, however, explicitly confirmed the ICRC has authority to issue a second SCERP and reassessment if the first reassessment revealed ongoing issues, including “concerns discovered by the assessor that might lead…to the ordering of a second SCERP.”(Zaki, at para. 38).
[58] The hypothetical concerns outlined in Zaki do not apply in this case. There, the Court noted that the ICRC’s authority to require a reassessment as part of a SCERP carries with it a risk that the physician may become entangled “in a seemingly never-ending cycle of assessment after assessment.” It also noted that the assessment component of the SCERP should not become a surrogate for a referral to Discipline (Zaki, at para. 37). In this matter, asking Dr. Al- Kazely to complete a second SCERP and reassessment is not subjecting him to a “never-ending cycle” of reassessments. This is the ICRC’s second attempt to remediate Dr. Al-Kazely, which is directly related to the record-keeping concerns identified by the Assessor and represent a targeted escalation of educational intervention aimed at remediating the Applicant’s lack of success with lower-level remediation. In the circumstances, this is a reasonable and proportionate intervention.
[59] Rather than referring the matter to discipline for a hearing, which may not have been reasonable, the Decision showed an escalation of interventions over a period of four years which demonstrates a proportionate and reasonable approach to remediating Dr. Al-Kazely’s deficiencies in record-keeping.
[60] In 2016, the ICRC advised Dr. Al-Kazely to improve the quality and completeness of his medical records and advised him to ensure his notes were complete and his diagnosis and treatment were supported in his documentation.
[61] In 2017, following further patient complaints, the ICRC required him to complete a low-level SCERP involving coursework and self-reflection. A reassessment was required to determine whether the education was successful.
[62] The reassessment conducted in 2019 as part of this SCERP revealed that Dr. Al-Kazely’s record-keeping deficiencies persisted despite this educational program. The Assessor noted problems which were very similar to those previously identified by the ICRC, including failing to document the exams performed or advice given to patients. In addition, she identified additional concerns including over-reliance on templates and documenting generalized assessments instead of targeted clinical assessments.
[63] Upon review of the Assessor’s opinion and Dr. Al-Kazely’s responses, the ICRC required him to complete this second SCERP. This time, instead of relying on coursework and self-reflection only, the ICRC required him to undergo clinical supervision and to repeat some of the course work. A reassessment was again required to assess the program’s success.
v. No Abuse of Process
[64] The Applicant has not satisfied his onus to show that he has suffered any prejudice in this matter and that there has been an abuse of process. He has referred, in the materials filed, to “strain, embarrassment and costs” resulting from the imposition of this second SCERP.
[65] As this Court held in Zaki at paragraph 36,
while the requirement of an assessment undoubtedly poses a burden on the physician, the consequences of that burden must be seen as being secondary to the overarching goal of protecting the public by ensuring patient safety.
To quash the 2020 SCERP and permit Dr. Al-Kazely to forgo any further remediation and reassessment would run contrary to the community’s sense of fair play and its interest in the proper regulation of physicians (Abdul v. Ontario College of Pharmacists, 2018 ONCA 699 paras. 16, 18, 22). It was not an abuse of process for the ICRC to find that Dr. Al-Kazely be further remediated.
B. Reasonableness
[66] The Applicant claims that the 2020 Decision does not fall within a “range of possible, acceptable outcomes” and is unreasonable. The decision to issue a SCERP or other remedial measures short of a discipline referral is not a penalty or a sanction, but rather is a measure which is meant to benefit the member and protect the public by avoiding future issues of a similar nature (Geris v. Ontario College of Pharmacists, 2020 ONSC 7437, at paras. 33-34, 41). The role of this Court on judicial review is not to “attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker”, but to determine whether the decision under review (including the rationale for the decision and the outcome) was unreasonable (Vavilov, at para. 83).
[67] The ICRC had an ample basis to intervene to address Dr. Al-Kazely’s substandard record- keeping considering the Assessor’s conclusions. The means it chose to do so – requiring Dr. Al- Kazely to: 1) undergo clinical supervision by meeting with a supervisor monthly for three months; 2) repeat two online eLearning modules which are free to CMPA members; and 3) engage in additional personal reflection and self-directed learning regarding record-keeping - are fully justified and proportionate in light of the concerns identified by the ICRC panel.
[68] The ICRC also required a reassessment three months after the completion of this program. This Court has previously confirmed that such a reassessment is an essential element of any remedial program as it enables the ICRC to determine if the remediation has been successful. The reassessment ordered in this case meets the parameters set out in Zaki. It is tailored to the ICRC’s concerns that “The reassessment will focus on the topics addressed during the period of Clinical Supervision as outlined…” The topics to be covered during the period of clinical supervision are, in fact, anchored in the concerns identified by the Assessor and reiterated by the ICRC.
[69] In his responses to the Assessor’s report and to the ICRC, Dr. Al-Kazely dismissed the record-keeping concerns as not relevant to his patient care. This position ignores that medical record-keeping is fundamental to good patient care, as is set out in the College’s policy on medical records and recognized in numerous decisions of this Court and the Health Professions Appeal and Review Board. In Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658, at para. 55, this Court stated:
Dr. Beitel submits that the Committee has conflated record-keeping concerns with clinical concerns. However, the two aspects of a doctor’s medical practice are inextricably linked. As is stated in the College’s Medical Records Policy, “[g]ood medical record-keeping is part of providing the best quality of medical care”. The Policy notes: “A medical record is an essential tool in providing continuity of care for all patients”.
[70] It is squarely within the expertise of the ICRC to determine the degree of its concerns with Dr. Al-Kazely’s practice, considering the Assessor’s report and Dr. Al-Kazely’s responses and his demonstrated history of record-keeping deficiencies. Likewise, it is within the expertise of the ICRC to determine the level of educational intervention required considering those concerns. The form of remediation selected by the ICRC in this case – three months of monthly supervision and repetition of two (free) online eLearning modules – while an escalation over its previous intervention, was nonetheless not unduly onerous here.
[71] The remaining terms of the Order are likewise reasonable. It was reasonable for the ICRC to include in its Order that Dr. Al-Kazely notify his employer and any hospital, at which he has privileges, of the terms of the SCERP. The term ensures transparency and accountability, and effects the SCERP’s implementation. This direction is also consistent with s. 23(2)7 of The Health Professions Procedural Code which requires that the College post a public notation of any SCERP required by ICRC.
[72] As a practical matter, the implementation of various elements of the SCERP may require the cooperation of Dr. Al-Kazely’s employer or hospital to facilitate access to Dr. Al-Kazely’s clinic and patient charts, required by the Clinical Supervisor and/or Assessor. The ICRC also routinely expects physicians to notify employers and hospitals of SCERPs, particularly where there is a concern about a physician’s record-keeping. The inclusion of this direction is not unreasonable.
[73] Finally, contrary to the Applicant’s assertion, the 2020 Order does not “require” direct observation of Dr. Al-Kazely’s practice or interviews with stakeholders as part of the reassessment. It contemplates that these are options that may or may not be employed by the Assessor. The Order provides:
The Reassessor may use any assessment tool, including, but not limited to, the following:
a. A review of a minimum of 15 charts (or, if that is not possible, a lesser number agreed to by the College)
b. Interview with the Respondent
c. Direct observation of practice
d. Interviews with stakeholders such as colleagues and co-workers.
[74] An identical term was included in Dr. Al-Kazely’s 2017 SCERP. In the end, the Assessor determined it was necessary to conduct only a chart review. The ICRC’s order allows the Assessor to determine what tools are required to assess the Applicant’s practice. There is no basis to interfere with the ICRC’s decision to afford the Assessor some discretion in terms of the tools available to assess the Applicant’s practice, given that the Order sets clear parameters for the reassessment that it must address topics covered during the period of clinical supervision.
Disposition
[75] For these reasons, the application is dismissed.
[76] As agreed to between the parties, costs shall be paid by the Applicant to the Respondent in the amount of $10,000 all inclusive. They are payable within 90 days of this judgment.
McWatt A.C.J.S.C.J.
I agree _______________________________
Coats J.
I agree _______________________________
Favreau J.
Released: January 5, 202
2022 ONSC 44
DIVISIONAL COURT FILE NO.: DC-21-305- JR
DATE: 20220105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Coats and Favreau JJ.
BETWEEN:
DR. LUAY ALI AL-KAZELY
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR DECISION
McWatt A.C.J.S.C.J.
Released: January 5, 2022