The Appellant medical doctor (“Markman”) was charged with four allegations of professional misconduct, along with an allegation of incompetence

27. January 2004 0

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Judicial intervention – Physicians and surgeons – Disciplinary proceedings – Sentencing – Public interest – Suspensions

Markman v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 3855, Ontario Superior Court of Justice, October 1, 2003, McRae, Gravely and Jennings JJ.

At the commencement of his hearing, he pled guilty to failure to maintain the standards of practice of the profession and to the allegation of failure to maintain the required records. During the hearing, the Appellant admitted there was sufficient evidence that the Committee was justified in making a finding of incompetence on the basis of lack of knowledge. However, counsel for Markman did not agree that Markham lacked skill or judgment or disregarded the welfare of patients. This restricted admission was not acceptable to the Committee or its counsel, and a full hearing of nine days was held. At the close of the hearing, the Chairperson acknowledged that the Committee would not be making a finding on disregard for the welfare of patients. However, when the Committee released its reasons for decision in June of 2002, those reasons contained a finding that Markman had shown disregard for the welfare of patients to an extent that demonstrated he was unfit to continue his practice.

The court held that this finding had been specifically rejected by the Committee in April of 2001 and that although a court should defer to the College of Physicians and Surgeons when they were rendering decisions within the scope of their expertise and should not interfere unless clearly warranted, pursuant to the decisions in Pearlman v. Manitoba Law Society and Pezim v. British Columbia, this circumstance involved an obvious error which required judicial intervention. Accordingly, the revocation of Markman’s registration was set aside, and a suspension of one year was substituted. In addition, the costs awarded against Markman were adjusted since the Committee founded this award on an incorrect basis.

To stay current with the new case law and emerging legal issues in this area, subscribe here.