The Court quashed the decision of the Respondent Health Authority to permanently revoke the Applicant doctor’s privileges on the basis that the Respondent’s Board of Directors failed to meet the requirements of procedural fairness by hearing evidence in the Applicant’s absence

Administrative law – Physicians and surgeons – Hospital privileges – Judicial review – Procedural requirements and fairness – Natural justice

Trinh v. Acadie-Bathurst Health Authority, [2005] N.B.J. No. 96, New Brunswick Court of Queen’s Bench, March 3, 2005, R. Léger J.

The Applicant was a medical doctor and a member of the medical staff of the Respondent Health Authority. He had been the subject of a number of complaints received over the course of several weeks. The complaints against the Applicant were discussed at a meeting of the hospital administration where it was decided that the Applicant’s hospital privileges would be suspended on an emergency basis. Various meetings among different committees were held leading up to a meeting of the Respondent’s Board of Directors. At that meeting, the Board was to consider a recommendation of the Medical Advisory Committee that the Applicant’s privileges be withdrawn permanently.

The Applicant was invited to appear before the Board of Directors to discuss four specific patient files. At the beginning of the meeting, counsel for the Applicant objected to the presence at the meeting of four physicians who had been invited to attend the meeting in case the Board had any questions following the Applicant’s presentation. The four physicians were not members of the Board and had all addressed the Applicant’s privileges in prior proceedings leading up to the Board’s meeting. The Board asked the four non-member physicians to leave the meeting. The meeting proceeded as scheduled, with the Applicant reviewing all four hospital charts in detail and his counsel and an expert making submissions to the Board.

At the end of the meeting, after the Applicant, his counsel and the expert had left, the Board adopted a motion that they would meet with the four physicians that had been invited to the meeting but had been asked to leave. The purpose of this would be to ensure that the Board had all the information required following the Applicant’s presentation before making a decision.

The meeting with the four non-member physicians was held three days after the Board’s meeting with the Applicant, and neither the Applicant nor his counsel were invited to, or advised of, the meeting. The four physicians made extensive comments on the care provided by the Applicant and gave extensive evidence to the Board. The Applicant was never offered the opportunity to respond or challenge the comments made by the four physicians. Following that second meeting, the Respondent Board decided to permanently withdraw the Applicant’s hospital privileges.

The Applicant argued that the Respondent Board had failed to exercise procedural fairness when it heard evidence and comments from the four physicians, who had an obvious interest in the outcome of the proceedings, without the presence of the Applicant or without having notified the Applicant in advance.

The Court held that a high standard of natural justice and procedural fairness is required when one’s right to continue his profession or employment is at stake. The requirements of natural justice will depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting and the subject matter being dealt with. In this case, the Applicant was not given a fair opportunity to challenge any of the comments made by any of the four physicians in attendance at the second meeting of the Board of Directors. The Applicant was not given the opportunity to appear and confront his accusers and answer their complaints and comments. The Court held that this was in complete denial of the principles of natural justice and vitiates the decision of the Board to permanently revoke the Applicant’s hospital privileges.

The Court relied on the Supreme Court of Canada’s decision in Kane v. University of British Columbia, [1980] 110 D.L.R. (3d) 311, and stated that it is clear that where a person’s right is at stake, that person has the right to fully respond to the case against him or her by cross-examination. If not, the principle of audi alteram partem, an essential element of natural justice, is breached. A tribunal must refrain from holding interviews with witnesses or hearing evidence in the absence of the party whose conduct is under scrutiny.

The Board’s decision was quashed. The Court, however, rejected the Applicant’s request for an order for mandamus requiring the Respondent to pay damages for loss of wages, as the circumstances did not warrant such an order.

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