Apr 19, 2017

Duty of fairness and ICRC power to order assessments

Zaki v Ontario College of Physicians and Surgeons, 2017 ONSC 1613 (CanLII)

Facts: The College received a complaint concerning the legibility of Dr Z’s patient medical records. The Inquiries, Complaints and Reports Committee (“ICRC”) of the College reviewed the complaint and rendered a decision with respect to the quality of Dr Z’s record-keeping. The ICRC required Dr Z to complete a specified continuing education or remediation program (known as a “SCERP”) consisting of a Record Keeping Course and a “reassessment” with an assessor.

The assessor appointed by the College reviewed 25 of Dr Z’s patient charts. She concluded that in 22 of them Dr Z did not meet the standard of practice with respect to record keeping. She also reported on various issues of patient care and opined that, in some instances, the care Dr Z provided failed to meet the standard of practice. These reports were consistent with the terms of her appointment.

The College asked Dr Z to respond to the assessor’s report. He provided a detailed response. Three months later, the assessor provided a response to Dr Z’s response by way of a second report. In the second report the assessor revised her earlier opinion and withdrew a number of her criticisms. The second report from the assessor was not provided to Dr Z.

Six months later, the ICRC considered Dr Z’s case. The ICRC’s decision was provided to Dr Z three months later. Three months after that – and a full year after it had been provided to the College – the College sent Dr Z the assessor’s second report.

The ICRC’s second decision determined that a SCERP was appropriate and required the applicant to be subject to clinical supervision by a preceptor.

Dr Z applied for judicial review of the ICRC’s decision, alleging a denial of procedural fairness when the ICRC failed to give him the assessor’s second report and an opportunity to respond, and that the ICRC exceeded its jurisdiction in ordering a wide-ranging assessment of his practice.

Decision: Application allowed.

On the issue of procedural fairness, the Court need not engage in a discrete standard of review analysis. Regarding the Baker factors, three bear specific mention in this case. First, the ICRC’s decision is of considerable importance to Dr Z, as it directly affects his ability to carry on his medical practice. Second, Dr Z had a legitimate expectation that he would receive and be able to respond to the assessor’s report. In particular, since he as given the first report and asked to respond to it, it should have been obvious that Dr Z had a legitimate expectation that he would receive any other reports the assessor provided. Third, the procedures adopted by the decision-maker are relevant. The College clearly intended to provide any and all of the assessor’s reports to Dr Z and told the assessor that that would happen.

The College argued that Dr Z suffered no unfairness because the second report added nothing to the record and Dr Z was already aware of and had made submissions on the basic issues raised. But procedural fairness must not only be accorded to a party – it must also be seen to have been accorded. Providing information to the ICRC that was relied upon in reaching its decision and that was not provided to Dr Z is not fair in fact or in appearance. It cannot be said that the second report was of no consequence, since on more than one occasion the assessor completely reverse her position regarding Dr Z’s conduct.

On the issue of the ICRC’s jurisdiction, the ICRC has no express power to appoint an assessor or investigator. Rather, under s 26(1) of the Health Professions Procedural Code, the ICRC has authority to “Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws.” The ICRC also has express authority to require a member to complete a SCERP. An assessment is an integral part of a SCERP. It is the necessary mechanism to ensure that completion of the SCERP has the desired effect of correcting any issues with the physician’s conduct. While the requirement of an assessment poses a burden on the physician, the consequences of that burden are secondary to the overarching goal of protecting the public by ensuring patient safety.

The authority of the ICRC to order an assessment must always be directly related to, and be a necessary consequence of, its decision to order a SCERP. The assessment ought to be carefully tailored. The scope of the assessment should be rationally connected to the concerns that led to the ordering of the SCERP and be only what is necessary to properly address those concerns.

Commentary: The Court’s brief comments that no standard of review analysis is necessary where procedural fairness is at issue belie the ongoing inconsistency in the cases on this point. While cases have traditionally held that there is no standard of review for issues of procedural fairness, some recent cases have held that for procedural fairness issues the standard of review is correctness, in some cases with a “margin of deference”. Other cases have held simply that the correctness standard of review applies. The subtle differences between these theoretical approaches are unlikely to make any practical difference in the vast majority of cases, but it would nonetheless be helpful (at least for doctrinal coherence) if the courts would clarify a single proper approach.

The Court’s comments on legitimate expectations are also notable. Consideration of a person’s legitimate expectations has long been a feature of Canadian administrative law, particularly since Baker as one of the factors relevant to determining the scope of a duty of fairness. Courts consistently require a “clear, unambiguous and unqualified representation, policy or practice” relied upon by the person asserting the legitimate expectation. The Court did not discuss that requirement in this case and it is far from clear that the fact Dr Z was provided with the assessor’s first report gave rise to a clear, unambiguous and unqualified representation that he would get the second report. Nonetheless, the result seems to be the right one on a fundamental level – Dr Z’s right to know the case against him and be heard was breached when the ICRC received a report that was not provided to him and that he did not have the opportunity to respond to.

The Court’s reasons on jurisdiction will be of interest to other health regulatory colleges in Ontario operating under the Code. A SCERP is a legitimate and useful regulatory tool that allows for remediation in the interest of public protection, while avoiding the stigma of disciplinary proceedings for the member. As noted by the Court, an assessment that is properly tailored to a SCERP can be essential for colleges to monitor whether a SCERP has been effective. Health regulatory colleges will likely welcome the Court’s confirmation that ICRCs have the authority to order such assessments.

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