Oct 19, 2020

Regulators are likely to see increasing numbers of concerns about practitioners with mild cognitive impairment. When do these concerns call for an aggressive incapacity intervention?

In College of Physicians & Surgeons of Alberta v Collett, 2019 ABCA 461, http://canlii.ca/t/j3n6m an Alberta court stated that an interim suspension of a physician’s right to practice was invalid. The Court first held that the matter was not moot even though the practitioner’s registration had since been reinstated. The Court said that it “accepts that a professional’s reputation is a fragile thing and can easily be diminished.” The Court’s ruling might go some small way to repairing that damage.

The Court’s finding that the interim suspension was invalid was made on two grounds. First, there was an insufficient basis for finding that the practitioner’s condition impaired “his ability to provide professional services in a safe and competent manner”. None of the medical reports expressed that opinion but rather suggested further inquiries ought be made at a later time. The College representative expressed “concerns” about the practitioner’s cognitive status, but did not actually state a belief of impairment to the degree required by the legislation.

The second basis of the finding was that there had been procedural unfairness. A period of four months elapsed between the medical report raising the concerns and notification of an intention to suspend the practitioner’s registration. No medical updates were sought during that period. The notification then only provided two clear business days to retire or be suspended. Given the enormity of the impact of the decision on his life and the mild medical evidence, that period of notice was unreasonable. The Court suggested a notice period of some weeks, a month perhaps, was appropriate in the circumstances. The medical concerns were not such as to necessitate “a firehall-like response”.

This case suggests that regulators need to carefully examine the full circumstances of an individual with suspected cognitive impairment, obtain clear evidence of its likelihood to affect a practitioner’s practice, explicitly state the findings they are making, apply the legal test contained in the legislation, and provide a proportionate time for a response in light of the significance of the concerns.