Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and surgeons – Disciplinary proceedings – Competence – Public interest – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter
Liberman v. College of Physicians and Surgeons of Ontario,  O.J. No. 227, 2010 ONSC 337, Ontario Superior Court of Justice, January 13, 2010, J.R.R. Jennings J.
The Applicant was an anesthesiologist who had been the subject of a complaint filed as a result of the death of a patient. The Applicant had been charged with professional misconduct and incompetence. After notice to the Applicant, to which he responded with submissions, an interim order was made under section 37(2) of the Health Professions Procedural Code, prohibiting the Applicant from performing anesthesia, except in a hospital under the supervision of a certified anesthetist. Because of the nature of his practice, the Applicant did not have hospital privileges; therefore, the effect of the interim order was to shut down his practice. The Applicant applied for judicial review of that decision, and an order quashing the interim order.
The Court noted that the parties had agreed that the standard of review was reasonableness, and that it should be concerned “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law.” The Court is not to retry the matter, but may only determine whether there was some evidence before the Committee that could justify its decision.
In making an order under section 37, the Committee must be of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury. In making orders under section 37, the Committee is carrying out its vital and overriding responsibility of protecting the public. The Committee’s opinion of the likelihood of harm ensuing must be based upon the evidence before it.
The issue before the Court was whether, on the record before the Committee, there was some evidence to support the opinion that the Applicant’s conduct exposes or was likely to expose his patients to harm or injury.
The Court noted that, in the voluminous record before it, it had been referred to no evidence that directly addressed the issue of likely harm, other than four medical opinions. Of the two experts retained by the College, one stated that she could not answer the question of whether potential harm would likely result from the Applicant’s practice based on her review of only one chart (that of the patient who had died). The Court accepted the Applicant’s submissions that to base such an opinion on one incident out of thousands would tend to make a section 37 order automatic between charge and hearing. The College’s other expert, who had reviewed 55 files, opined that there would be no harm. Additionally, two experts whose opinions were obtained on behalf of the Applicant were firmly of the view that there was no risk of exposure to harm.
The Court held that it is clear that the Committee was at liberty to accept some evidence and reject other evidence and to prefer one expert opinion over another. That said, the Committee gave no explanation for rejecting the opinion of its own medical examiner on the core issue that it was to decide. Further, having concluded that the Applicant’s conduct was likely to expose his patients to harm, the Committee dealt with the detailed reports of the Applicant’s experts by merely acknowledging that they were enclosed with the Applicant’s submissions and that everything submitted by the Applicant was carefully considered. The Court held that, in a case such as this where there was no direct evidence to support the Committee’s decision, it was incumbent upon the Committee to give some explanation, however brief, for rejecting all of the evidence that was contrary to its conclusion.
The Committee was clearly entitled to form its own opinion, but must do so “on some evidence”, not evidence of below standard conduct, but evidence of probable harm. Here, there was none. The Court noted that, in coming to that conclusion, it was not weighing evidence, but searching for its existence. Without evidence of the probable exposure to harm, the Committee was merely speculating based on one incident, which it cannot do.
In the result, the Application was allowed, and the interim order quashed.
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