An appeal pursuant to section 43 of the Public Hospitals Act was dismissed as the Health Professions Appeal and Review Board (the “HPARB”) was held to have understood its role and applied the proper tests, resulting in a conclusion that was reasonable. While there had been a denial of procedural fairness in that the Appellant was provided with a package of 17 complaints at a meeting without being afforded an opportunity to investigate and consider them, that denial was “corrected” when it was agreed by the parties to have the situation reviewed by an independent expert agreeable to both parties.

Administrative law – Physicians and surgeons – Competence – Hospital privileges – Suspensions – Fairness – Public interest – Judicial review – Administrative decisions – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

Soremekun v. University Health Network, [2004] O.J. No. 2085, Ontario Superior Court of Justice, May 18, 2004, MacFarland, Wilson and Swinton JJ.

The Appellant physician appealed pursuant to section 43(1) of the Public Hospitals Act, R.S.O. 1990, c. P.40 from a decision of the Health Professions Appeal and Review Board (“HPARB”) which had confirmed the decision of the Board of Trustees of the University Health Network suspending his appointment to the medical staff of the University Health Network until such time as he undertook a Review Programme and submitted documentation demonstrating that his practice was of sufficient quality to ensure patient safety.

The physician had been an anesthetist at another hospital for some 30 years prior to its merger with the University Health Network in June 1998. On September 2, 1998, the physician was informed by the Deputy Chief of the Anesthesia Department that the Chief of the Department wished to meet with him on September 9 in relation to complaints about his work. On September 9, the physician was confronted with some 17 complaints. Thereafter, it was agreed that an independent review of the situation would be conducted by a mutually agreed upon anesthetist. This individual concluded that the doctor should undertake the Review Programme. The matter proceeded before the Board of Trustees on December 11, 1999 by way of a full hearing. The Board accepted the Medical Advisory Committee’s recommendation and the physician’s appointment to the medical staff was suspended upon the terms and subject to the conditions contained in that recommendation.

The physician appealed the decision of the Board of Trustees and the matter proceeded before the HPARB by way of trial de novo over seven days. The HPARB confirmed the decision of the Board of Trustees.

With respect to the standard of review, the court noted that there was a broad statutory right of appeal and in that regard only limited deference was owed by the court to the decision of the Tribunal. However, one of the main functions of the HPARB was to review decisions respecting hospital privileges under the Public Hospitals Act. The questions before the HPARB were squarely within its expertise and therefore some deference was owed by the court. In addition, ensuring patient safety in the provision of hospital services was the main purpose of the Public Hospitals Act but that fact had to be balanced against the interests of the physicians who came before the Board. The court concluded that the standard of review which it was to apply in reviewing the decision of the HPARB was reasonableness simpliciter.

The court held that there was a denial of procedural fairness when the physician was provided with “a package” of some 17 complaints without being afforded an opportunity to investigate and consider them before the meeting of September 9. The court held that these matters ought to have been raised with the physician at the time the complaints were made. However, the Hospital “righted” that wrong when it agreed to have the situation reviewed by the independent expert agreeable to both parties.

The court noted that the HPARB had to be satisfied on a balance of probabilities that the events demonstrated a legitimate concern for patient safety and that a requirement for remedial action was warranted. The court held that it was clear from the written reasons that the HPARB understood its role and applied the proper test. In all the circumstances, its conclusion was a reasonable one. The appeal was therefore dismissed.

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