The court set aside a decision of the Respondent Review Board and reinstated the decision of the College of Physicians and Surgeons’ Complaints Committee, which had decided to take no further action in respect of a complaint brought against the applicant physician (Dr. McKee)

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Competence – Judicial review – Standard of review – Reasonableness simpliciter

McKee v Health Professions Appeal and Review Board, [2009] O.J. No. 4112, Ontario Superior Court of Justice, September 28, 2009, J.R.R. Jennings, K.E. Swinton and W. Low JJ.

In late 2005, Ms. Veran made a complaint to the College of Physicians and Surgeons of Ontario (the “College”) and the Complaints Committee (the “Committee”) reviewed the complaint. The complaint related to the care provided by the Applicant (Dr. McKee) to Ms. Veran’s son, Mr. Goodman. Mr. Goodman had a history of alcohol and drug abuse and visited the emergency room with a worsening cough and diarrhea. Dr. McKee ordered several tests and diagnosed pneumonia. He gave Mr. Goodman a four-day prescription for his pneumonia and discharged him. Mr. Goodman did not return to hospital and died six days later from pneumonia.

Ms. Veran’s complaint alleged that Dr. McKee failed to provide adequate and appropriate treatment for Mr. Goodman. Her complaint also alleged that Dr. McKee told her son to “go home and continue his lifestyle”. The Committee is empowered to screen the complaints made against physicians and can refer complaints to other committees within the College if further investigation or discipline is warranted. The Committee reviewed the complaint, Dr. McKee’s written response, and the relevant medical records. It concluded that Dr. McKee’s medical care was appropriate. It also concluded that there was insufficient evidence that Dr. McKee told Mr. Goodman to “continue his lifestyle.”. This was particularly the case because, in Dr. McKee’s response, he stated that he told Mr. Goodman to discontinue his alcohol and drug abuse. The Committee decided that no further action or investigation was warranted in respect of Ms. Veran’s complaint.

Ms. Veran sought a review of the Committee’s decision. The reviewing body was the Respondent, Health Professions Review Board (the “Board”). The Board relied on a reasonableness standard of review. The Board did not take issue with the Committee’s decision regarding Dr. McKee’s medical care. The Board took issue with the Committee’s conclusion regarding the allegation that Dr. McKee told Mr. Goodman to “continue his lifestyle.” The Board found that the Committee did not sufficiently investigate the complaint and, in particular, ought to have interviewed several staff members at the hospital. The Board also found that the use of the word “lifestyle” (regardless of what Dr. McKee said about the lifestyle) was offensive because it indicated a lack of distinction between an addiction and a lifestyle. The Board ordered that the College further investigate the complaint.

Dr. McKee brought this application for judicial review in respect of the Board’s decision. The Court relied on a reasonableness standard of review in considering the decision of the Board. The Court set aside the decision of the Board on the basis that it was unreasonable.

The Court found that the Board failed to show deference to the Committee given that it was reviewing the Committee’s decision in accordance with a reasonableness standard. The Board failed to recognize that the Committee is intended, and empowered, to be a “screening” committee. The Board should have had that role in mind and asked itself whether the Committee exercised its investigative discretion reasonably in light of that role. The Board did not do this but rather assessed the complaint and then criticized the Committee for failing to take steps to determine the credibility of Dr. McKee and the complainant, Ms. Veran. In taking that approach, the Board failed to recognize the Committee’s role since it is not the role of the Committee to determine credibility or to make findings of fact.

The Board’s conclusion about the word “lifestyle” was unreasonable because there was no evidence indicating whether it is appropriate for a physician to use that phrase. In this regard, the Court noted that Ms. Veran herself used the word when she described her son (in her complaint letter). In addition, the appropriateness of the word “lifestyle” was not the subject of the initial complaint.

The Court set aside the decision of the Board and restored the decision of the Committee.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com

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