Oct 19, 2020

Incapacity cases ideally result in terms, conditions and limitations (TCLs) imposed on a certificate as opposed to suspension. This permits the practitioner to practise while still providing the necessary reassurance to the regulator. However, regulators and practitioners regularly disagree as to the breadth of such TCLs. Obviously applicants for registration and members wish to have as few restrictions as possible as TCLs have a significant impact on a practitioner’s life. As such practitioners may view the restrictions proposed by a regulator as excessive and based on speculation, or even faulty assumptions, as opposed to being grounded in evidence.

In an older case, D.W.C. v College of Physicians and Surgeons of Ontario, 2017 CanLII 55551 (ON HPARB), http://canlii.ca/t/h5mvg, an independent Board provided a detailed review of numerous restrictions proposed for a former physician who was re-applying for registration after a period of substance abuse and related psychiatric symptoms. At the time of the hearing, the applicant had not used cocaine for seven years and reported moderate amounts of alcohol use. The primary, but not entire, dispute related to the monitoring restrictions proposed by the regulator. In upholding the proposed restrictions, the Board made the following determinations:

  • While the onus is on the applicant to demonstrate that they meet the requirements for registration, regulators must still “scrupulously exercise their mandate when determining whether an individual qualifies for registration”.
  • There is no appearance of bias on the part of experts who assessed the applicant because they came to a diagnosis that the applicant disputes through a fair process.
  • The constitutionally protected freedom of expression does not prevent medical experts from using the applicant’s statements, including some that appeared to be bizarre, in diagnosing the applicant’s condition.
  • The applicant’s human rights do not prevent the regulator or appeal Board from considering issues related to the applicant’s disability. Rather those human rights are required to be considered within the process.
  • On the evidence before them, the Board did not find evidence that the medical experts or the regulator had relied on assumptions based on the applicant’s Indigenous status, or had otherwise discriminated against the applicant on that ground.
  • The Board did not find it to be inappropriate for a regulator to require the applicant to participate in a support group whose philosophy was, in some aspects, contrary to the applicant’s personal beliefs.
  • While the Board accepted the proposition that the regulator had a duty to accommodate the applicant’s disability by only imposing restrictions necessary to protect public health and safety, the Board found on the evidence that the following restrictions were necessary to protect the public:
    • monitoring by a psychiatrist and an addictions medicine physician and compliance with their treatment recommendations;
    • unannounced biological testing for alcohol and any substance of abuse at an independent laboratory rather than at the applicant’s office;
    • total abstinence from drugs and alcohol despite the contested evidence as to whether complete abstinence from alcohol was necessary in the applicant’s case;
    • communication by the regulator with family members, workplace monitors and support group leaders about the applicant’s behaviour;
    • the restrictions would be in place for at least five years; and
    • “it would generally be in accordance with the established principles of professional regulation for a registrant to bear the ongoing cost of conditions on his or her certificate of registration.”

These determinations were based on the evidence in the individual case and do not necessarily apply to all cases. However, this decision provides a precedent and gives guidance as to the kinds of evidence that might be necessary to support these sorts of restrictions.