oct. 15. 2020

Complaints screening bodies do not make findings of fact. They also do not make findings of wrongdoing. And they can make remedial orders (e.g., issuing a caution) without a finding of wrongdoing in order to help a practitioner avoid similar situations in the future. However, this does not mean that a reviewing tribunal or court cannot address misstatements of the evidence: Montour v Health Professions Appeal and Review Board, 2019 ONSC 3451, http://canlii.ca/t/j0wzp.

In this case the screening committee ordered that a practitioner be cautioned because she did not personally assess a patient despite six calls from nursing staff. The screening committee concluded that a personal assessment was required where the patient was “decompensating” and experiencing progressive neurological changes. However, the Court reviewed the medical charts and found no evidence that this is actually what the practitioner was told by the nursing staff at the time. The Court was even prepared to interpret some of the medical language in the medical file in concluding that the screening committee had misunderstood the file.

While it is rare for a reviewing court to scrutinize the factual findings of a specialist tribunal in the area of practice of the profession, regulators need to ensure that they fairly and accurately summarize the critical portions of its investigation file when making screening decisions.