Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Penalties and suspensions – Permanent vs. indefinite – Judicial review – Jurisdiction
Li v. College of Physicians and Surgeons of Ontario,  O.J. No. 2975, Ontario Superior Court of Justice, July 28, 2008, J.H. Brockenshire, S.N. Lederman and K.E. Swinton JJ.
The appellant, a general practitioner, had been sanctioned by the College of Physicians and Surgeons of Ontario (the “College”) in 1996 for failing to maintain the standards of practice after he acknowledged at that time he had performed a breast examination from behind. The sanction included a three-month suspension and a requirement that the appellant attend a course of breast examination which he completed. In 1999, the College received additional complaints that the appellant had conducted similar types of breast examinations and proceeded with a hearing before a Discipline Committee (the “Committee”) where the appellant admitted he conducted the examination on one of the complainants with her standing with her back to him. He maintained he sometimes used this method as he believed it effective in detecting breast lumps.
The Committee convicted the appellant of failing to maintain the standard of practice and disgraceful, dishonourable, and unprofessional conduct. The penalty included a 24-month suspension, further education and therapy, and a permanent restriction on the appellant’s practice to male patients. By way of a subsequent clarification, the Committee confirmed that the restriction was to be permanent or, in other words, purported to preclude the appellant from ever applying to lift or vary this restriction, regardless of any future change in circumstances. The appellant appealed this aspect of the Committee’s order on penalty.
On appeal, the Court noted that the Discipline Committee had jurisdiction to impose terms, conditions and limitations on a member’s certificate of registration for either “a specified or indefinite period of time” under the Health Professions Procedure Code (“HPPC”), being Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c.18 (the “Act”). However, the Committee incorrectly interpreted the phrase “indefinite period of time” as allowing for a permanent limitation as the word “indefinite” does not mean “permanent” but rather means unspecified or undefined. Moreover, in the context of criminal punishment, the word “indefinite” is generally understood to mean for an unspecified or undefined period of time and that an indefinite sentence of punishment may be varied at a later time. Even under the context of the HPPC as a whole, it is clear that even revocation, the most serious penalty, is not necessarily permanent and the member is entitled for re-instatement after one year, or after 5 years in the case of sexual abuse. It would be incongruous to allow a member the opportunity to seek reinstatement after the most serious penalties, but permit a lesser term, condition and limitation be permanent, regardless of whether any future changes of circumstances (including rehabilitation) may render the term no longer necessary or inappropriate. For these reasons, the Discipline Committee had no jurisdiction to impose a permanent term, condition and limitation to the Appellant’s certification of registration.
To stay current with the new case law and emerging legal issues in this area, subscribe here.