Nov 4, 2020

It almost seems to be a rare event for an interim order limiting a practitioner’s practice to be upheld by the courts. However, in Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, http://canlii.ca/t/j9w0z an interim order preventing a physician from continuing to treat patients with serious kidney conditions was left in place. In that case a physician had his hospital privileges removed. A lengthy investigation by the regulator resulted in an expert report concluding that “the applicant’s clinical practice, behaviour and conduct was likely to expose patients to harm or injury in 17 of the 28 cases she reviewed.” Another expert provided a similar opinion in a related proceeding.

In maintaining the interim order the Court noted the following:

  • With rare exceptions it would only receive evidence that was before the Committee. In particular, it would not accept new evidence that went to the merits of the Committee’s determination that the practitioner’s conduct exposed or was likely to expose the public to harm or injury.
  • While the Committee does not have a fact finding role when screening a complaint to determine whether it should be referred to discipline, it does have a fact finding role when determining whether to make an interim order. In particular, it would make findings as to whether the conduct of the practitioner exposes or is likely to expose patients to harm or injury.
  • Even though the Committee used the phrase “risk of harm” in its reasons in a few places, it is clear that the Committee understood and applied the correct test of exposure or probable exposure to harm or injury.
  • The interim order was reasonable given the expert opinions addressing the specific issue of likelihood of exposure of the public to harm or injury and that the Committee imposed a narrow order limited to patients with serious kidney conditions. In other words, the interim order was “the least restrictive order necessary to protect patients’ safety”.
  • The process for making an interim order, under this legislation at least, contemplates a paper hearing (i.e., no cross-examination of witnesses or oral submissions) in a short period of time. The refusal of a request by the practitioner for a 90-day delay to obtain legal counsel and a responding expert opinion was properly refused especially since the Committee had already provided some extensions, reconsidered the order on an urgent basis and where the practitioner did not provide an explanation of his efforts to locate legal counsel and obtain another expert opinion. The Court noted that should the practitioner obtain an expert opinion it was open to request a further reconsideration of the interim order.

Even though the interim order was upheld in this case, the decision implies that regulators need to carefully gather evidence and offer a fair procedure in order to issue a defensible interim order.