Administrative law – Physicians and surgeons – Competence – Hospital privileges – Suspensions – Hearings – Judicial review – Natural justice – Procedural requirements and fairness – Administrative decisions – Bias – Remedies – Certiorari – Injunctions
Fong v. Winnipeg Regional Health Authority,  M.J. No. 299, Manitoba Court of Queen’s Bench, July 30, 2004, Beard J.
The Applicant doctor was the subject of a series of complaints. Senior medical staff of the hospital held a meeting which the Applicant refused to attend without counsel. The meeting proceeded in his absence and a decision was made to limit the Applicant’s medical staff privileges and the matter was referred to the Medical Advisory Committee (“MAC”) of the Winnipeg Regional Health Authority. The MAC met in May 2004 and passed a resolution referring the complaint to a hearing panel and immediately suspended all of the Applicant’s privileges pending the outcome of the hearing, which was set for October 2004. The Applicant applied to overturn the decision of the MAC and to have his privileges reinstated either completely or on some limited basis pending the outcome of the October hearing.
The court resolved the matter on the basis of procedural fairness and a reasonable apprehension of bias. The court reviewed the relevant principles:
To establish apprehended personal bias, it is enough that a reasonable observer would believe there is a bias. That is, a tribunal member would have a predisposition to favour or oppose a party.
With respect to interim decisions, the non-final nature of a power does not in itself exclude the duty of fairness, although a less demanding standard may be applied, provided at least that the administrative action constitutes a significant step within the decision-making process.
In the context of self-governing bodies, even where the enabling statute is silent, it would normally raise a reasonable apprehension of bias for a person who had participated in the investigation, or the decision to prosecute a complaint, to then sit as a member of the committee hearing the matter.
An appearance may be created, either from certain behavior or past circumstances, that the decision-maker did not come to the hearing with an open mind. Since prejudgment of the issues in dispute can impair the effectiveness of the participation of the parties in an adjudicative decision-making process, it will lead to disqualification unless the legislation has built in that particular form of bias.
Courts have assumed that questions of administrative procedural propriety are peculiarly within their province, at least when they are determining whether an administrative agency’s procedure was unfair, and accordingly they rarely apply a deferential standard of review. The language of natural justice is different from the language of “correctness” or “reasonableness”, which implies that there is a different dimension applicable to this ground for judicial review.
The law requires not only that adjudicative decision-makers be impartial in fact, but also that they appear to be impartial, so that parties can have confidence that their participation in the process was meaningful, which in turn will enhance the acceptability of the resulting decision.
Here, the MAC’s decision was a combination of a review of the initial decision to limit the Applicant’s medical staff privileges and a new hearing. The interim suspension was clearly a significant step in the adjudication process that required that the rules of procedural fairness, including freedom from a reasonable apprehension of bias, should apply.
Four doctors had participated in the initial meeting which resulted in the Applicant’s medical staff privileges being limited and a complaint referred to the MAC for hearing. Two of those doctors acted as complainants at the MAC meeting and the other two doctors participated in the MAC meeting as members of the committee, with one acting as chair of the meeting. The actions of the two doctors participating in the original decision and then as members of the MAC committee clearly raised a reasonable apprehension of bias and concerns about procedural fairness. The court held that any reasonable observer would believe that there was bias or a reasonable apprehension of bias on the part of the two doctors on the panel. There was probably actual bias since there was evidence of pre-judgment. The bias, whether apprehended or actual, was exacerbated by the senior positions of the doctors. The court granted the application for an order of certiorari and quashed the decision of the MAC which suspended all of the Applicant’s medical staff privileges.
The Applicant further sought an injunction to reinstate his privileges and to prevent the MAC from issuing any further interim suspension of his privileges until the October hearing. The court held that the most appropriate remedy in these circumstances is typically to refer the matter back to the same authorities who decided the matter originally, with a differently constituted panel. Given the concerns of the Applicant regarding the bias on the part of the committee, the fact that it would not be possible to obtain a quorum of members of the MAC who did not participate in the original hearing and the fact that the final decision was unanimous, the court held that it would be inappropriate to remit the matter to the MAC for a re-hearing.
The court reviewed the underlying complaint, which concerned the Applicant’s clinical judgment and management and issues relating to his professional conduct. Given strong opinions in support of the Applicant, the court was unable to conclude that the complete suspension of all of the Applicant’s privileges was appropriate. The court ordered that the Applicant’s privileges be re-instituted subject to certain conditions, until there is a decision following the October hearing.
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