Administrative law – Physicians and surgeons – Governance – Competence committee – Confidentiality of findings – Jurisdiction – Public interest – Judicial review application
Anstead v. College of Physicians and Surgeons of Saskatchewan,  S.J. No. 463, Saskatchewan Court of Queen’s Bench, May 26, 2003, G.A. Smith J.
Anstead was a registered physician with the College of Physicians and Surgeons of Saskatchewan (the “College”). In April 2002, he was randomly selected to have an assessment of his practice conducted by the Practice Enhancement Committee (the “PEP Committee”), a committee of the College created pursuant to section 18(10) of the Bylaws of the Medical Professions Act, 1981. The PEP Committee reported to the College, through the Registrar, that its assessment of Anstead resulted in a “category 3” rating and that significant practice deficiencies had been noted in his practice resulting in immediate cause for concern. The matter was placed before the Executive Committee of the College which appointed a Competency Committee pursuant to section 45 of the Medical Profession Act, 1981, to investigate whether Dr. Anstead had adequate skill and knowledge to practice medicine. Dr. Anstead applied to the court for an Order quashing the decision of the Executive Committee appointing a Competency Committee on the ground that the assessment and findings of the PEP Committee were to be confidential except in exceptional and defined circumstances, which were not met in this case, and that it therefore had no jurisdiction to report the results of its assessment.
The court reviewed the creation of the Professional Enhancement Program noting the program was an attempt to address the need for a method of systematic and ongoing peer review of the practice of medicine in order to assess and enhance physician performance. Participants in the PEP program agreed that confidentiality was an essential requirement for the program to be effective and that the results of its evaluations must be protected from production and litigation. This concern was reflected in an amendment to the Medical Profession Act, 1981. It was also noted that the Saskatchewan Medical Association and the PEP Committee had concluded that, in order for the program to work effectively, it was necessary to assure the physicians who were to be assessed by the program that information from such assessments would not be provided to the College unless the public had been placed at risk. Bylaw 18(10) of the Act reflected these concerns and established the grounds for communication of the results of the assessment. Bylaw 18(10)(h)(i) provided that where the PEP Committee formed the opinion that the information gathered respecting a physician established that “the public is at an immediate risk of harm”, the PEP Committee shall report the matter to the College.
In this case, Dr. Anstead’s practice was assessed in June 2002. In early August 2002, Dr. Anstead received a letter from the Committee advising him that he had received a category 3 rating and indicating that the Committee was obliged to refer any physician receiving this rating to the College. The letter was accompanied by the Committee’s full assessment report. Dr. Anstead responded to this report in some detail. The full report was not disclosed to the College. The Committee wrote to the College Registrar indicating that their assessment of Dr. Anstead had resulted in a category 3 rating and outlining that significant practice deficiencies had been noted resulting in an immediate cause for concern. The Registrar replied to this letter advising the Committee that the College understood that the Committee was making its report under section 18(10)(h)(i). The court reviewed the correspondence and agreed that the Committee had never used the express words of Bylaw 18(10)(h)(i) to indicate that it had formed the opinion “that the public is at an immediate risk of harm”. However, the court accepted that the Committee would have responded had the Registrar’s assumption been incorrect. Therefore, the court held that the only reasonable conclusion to draw from the Committee’s correspondence was that the Committee had, in fact, formed the opinion that the public was at an immediate risk of harm. Given this finding, the court held that Dr. Anstead had failed to establish that the Committee had violated the confidentiality requirements of the Bylaws or otherwise exceeded its jurisdiction in reporting its concerns to the College. In the result, Dr. Anstead’s application was dismissed with costs to the College.
To stay current with the new case law and emerging legal issues in this area, subscribe here.