A family physician (“Dr. Litchfield”) obtained an Order suspending the decision of the College of Physicians and Surgeons of Alberta (the “College”) pending a statutory appeal of the College’s decision to strike his name from the College register for conduct unbecoming

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Disciplinary proceedings – Penalties – Stay of suspension – Judicial review – Statutory provisions – Procedural requirements and fairness

Litchfield v. Alberta (College of Physicians and Surgeons), [2007] A.J. No. 1099, Alberta Court of Queen’s Bench, September 28, 2007, R.P. Marceau J.

Dr. Litchfield graduated from medical school in 1982 and entered private practice in 1986. In late 2001 and early 2002, four of Dr. Litchfield’s patients made complaints to the College regarding his methods of physical examination of females.

Although the Medical Professions Act, R.S.A. 2000, c. M-11 (the “Act”) contains a provision permitting the College to suspend a practitioner on an interim basis pending an investigation into complaints, the College did not suspend Dr. Lichtfield.

A hearing was held in early 2005. Written reasons from the investigating committee (the “Committee) were issued on February 10, 2005. The Committee found Dr. Litchfield not guilty of one allegation, but found that the other nine allegations had been established against him. Dr. Litchfield had admitted the conduct alleged in one instance, and part of another, but denied that the conduct established a lack of skill and judgment or conduct unbecoming on his part.

A penalty hearing followed. Two members of the three member Committee recommended a 6-month suspension from medical practice, and thereafter, a permanent restriction to performing surgical assists only. The third Committee member recommended that Dr. Lichtfield’s name be struck from the register, effectively erasing him from future medical practice.

The College did not avail itself of a provision in the Act permitting it to order an interim suspension of a practitioner pending consideration of a Committee’s decision by the College Council.

The College Council considered the Committee’s liability and penalty decisions on March 14, 2007, but opted to implement the minority opinion on penalty, and ordered that Dr. Lichtfield be struck from the Register effective immediately.

Dr. Litchfield appealed the College’s decision to the Alberta Court of Appeal, pursuant to s.68 of the Act.

On an application for a stay in the context of disciplinary proceedings against a medical practitioner, the appropriate test involves consideration of whether the appeal raises a serious issue, whether the appellant physician will suffer irreparable harm if the stay is not granted, and whether the balance of convenience favours the stay being granted. Whether or not a stay should be granted involves the exercise of judicial discretion in applying this test. The Court referred to Kooner v. College of Physicians and Surgeons of Ontario, [2001] O.J. No. 5134.

The Court held that the threshold for the first part of the test is low. One formulation of the test for whether the appeal raises a serious issue is whether the nature of the penalty meted out in relation to the offences is disproportionate.

The Court held that there were serious questions to be determined as follows:

Whether the Council erred in applying the wrong standard of review when considering the Committee’s findings on liability and penalty; whether the Council did not give sufficient weight to new evidence led at the penalty hearing; whether the finding that there was no reasonable school of medical though to support Dr. Lichtfield’s methods was in error; whether the imposition of the penalty was disproportionate with the nature of the allegations.

On the issue of proportionality of the penalty, the Court noted that the Council appeared to have made a finding that there was insufficient evidence of any sinister or sexual intent on Dr. Litchtfield’s part, but then adopted the reasoning of the lay member on penalty, who had based her penalty recommendation on a finding of sinister or sexual intent. The Court commented that this raised an issue to be tried before the Court of Appeal.

The Court found that Dr. Litchfield would suffer irreparable harm if the stay was not granted. There was evidence that Dr. Litchfield continued to pay three of his staff and to maintain his practice premises, and that the damage to his practice would be substantial even if he was permitted to return in eight months. The Court commented that, even if the College’s decision was quashed on appeal, Dr. Litchfield would not have a remedy in damages against it. As such, the damage to his reputation and business would be irreparable, and this aspect of the test for the stay was met.

The Court considered the interest of Dr. Litchfield as balanced against the interests of the public. The Court received assurances that the complaints against Dr. Litchfield related to post-pubescent female patients only. The Court directed that an interim measure be imposed whereby Dr. Litchfield could return to practice to see male patients, and female patients up to age 12, and signage would be placed at his office to this effect, pending the appeal. Dr. Litchfield would also be permitted to work as a surgical assistant pending the appeal.

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