A pathologist who was the subject of a complaint that he had not correctly diagnosed and reported pathology results concerning various forms of cancer (“Menon”) applied for judicial review of a suspension imposed by the College of Physicians and Surgeons of New Brunswick (the “College”), and succeeded in having the complaint referred to a Board of Inquiry pursuant to the Medical Act, SNB 1981, c. 87 (the “Act”)

25. September 2007 0

Administrative law – Physicians and surgeons – Disciplinary proceedings – Competence – Penalties and suspensions – Decisions of administrative tribunals – College of Physicians and Surgeons – Judicial review – Natural justice – Procedural requirements and fairness – Standard of review – Correctness

Menon v. College of Physicians and Surgeons of New Brunswick, [2007] N.B.J. No. 270, New Brunswick Court of Queen’s Bench – Trial Division, June 4, 2007, W.T. Grant J.

Menon was employed as a pathologist at Miramichi Regional Hospital beginning in 1984, and was Chief of Pathology there from 2002 until April 2004. In April 2005, the hospital board delayed Menon’s further appointment as Chief of Pathology pending a Medical Advisory Committee (“MAC”) review of complaints against him. Although the MAC found the complaints to be without merit, the Board appointed another physician the acting Chief of Pathology.

The acting Chief of Pathology identified five cases handled by Dr. Menon for further review by the Vice President of Medical Services, Dr. Carl Hudson (“Hudson”). Dr. Hudson filed a College complaint regarding the five cases, alleging deficient practice by Menon. The College also had two earlier complaints about Menon, both of which were referred to the College Review Committee.

Hudson’s letter of complaint requested immediate action regarding Menon. Section 56.1(1) of the Act permits the Executive to direct the College Registrar to suspend a member. Under s.56.1(5), the member must be given notice of an intention to suspend, the reasons therefor and a ten-day period to make written submissions. However, s.56.1(6) overrides those requirements where the matter is considered urgent.

Significant errors regarding missed cases of cancer, incorrect grading of malignancy and whether complete excision had occurred were alleged in the complaint. The risk to patients was felt to be significant and ongoing. The College convened a meeting of its Executive Committee, and ordered an immediate suspension of Menon pursuant to s. 56.1(6) of the Act.

Under s.56.1(7) of the Act, where such action is taken, the Registrar of the College must give the member notice of the decision to suspend and the reasons in support of the decision, and at least 10 days notice to make written submissions.

Menon was advised of the suspension in writing. The College informed Menon that more details would follow, and that it was prepared to receive submission from him at “any time”.

Menon wrote back to the College seeking details of the complaints underlying the suspension. Menon requested that the College immediately set up a Board of Inquiry, pursuant to s.56.1(8) of the Act, which reads:

If a direction has been given under subsection (1) and the complaint referred to the Complaints and Registration Committee, the member involved may request Council to appoint immediately a Board of Inquiry and refer the matter directly to the Board.

The College denied Menon’s request for a Board of Inquiry to be convened to consider the complaints.

Menon subsequently provided a response to the five cases identified in the complaint. The College decided to maintain the suspension and their denial of the request to have the matter referred to a Board of Inquiry.

The College appointed two of the province’s pathologists to undertake a competency review of Menon’s practice. An assessment was conducted and report delivered to the Review Committee in May 2007. At the date of hearing for the judicial review, the Review Committee had not set a date to meet about the assessment report.

Menon argued that the Executive Committee of the College failed to follow the process for dealing with complaints set out in the Act. The Court applied a standard of correctness, and held that the College acted in accordance with the procedure set out in the Act by not forwarding the earlier two complaints to the Complaints and Registration Committee. Those complaints were not the basis of Menon’s suspension, and were only relevant to the discussion of whether an immediate suspension was warranted.

Menon contended that the College did not proceed expeditiously, and so failed to accord him natural justice.

The Court referred to Moreau-Berube v. New Brunswick (Judicial Council), 2002 SCC 11 for the principle that when evaluating whether a tribunal has breached its duty of procedural fairness, it is unnecessary to determine the appropriate standard of judicial review.

The College took nearly four months from the time of Menon’s suspension to the date of judicial review. Menon pointed out that a previous version of the Act required the College to issue a final order within 30 days of an interim suspension.

The Court referred to the nature of the complaint as a factor, and noted the College’s submission that competency complaints require investigations of a scientific nature whereas, for example, in complaints of sexual impropriety, witnesses are readily available at the time of the complaint.

Despite the long delay, the Court held that the College proceeded expeditiously under the circumstances.

The Court also dismissed Menon’s argument that two of the complainants had been asked to provide “all relevant documents” to the competency reviewers. Although Menon submitted that this created a reasonable apprehension of bias, the Court held that many investigations involve the complainants, at some level, and that the complainants were the Chief of Pathology and the Vice President of Medical Services, and would therefore know where the relevant information could be located. The pathologist reviewers were unlikely to be misled by the complainants.

Finally, Menon argued that the College’s refusal to appoint a Board of Inquiry was a reviewable error. The Court applied a standard of correctness, and held that the Act confers a right on the member to have a Board of Inquiry appointed in these circumstances. The College argued that s.56.1(8) only gives a member the right to make a request for a Board of Inquiry, but the Court held that such an interpretation would lead to an absurd result.

The Court quashed the College’s decision denying the appointment of a Board of Inquiry, and ordered the College to appoint such a Board on or before June 30, 2007, failing which the suspension of Menon would be quashed.

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