Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Penalties and suspensions – Judicial review – Standard of review – Reasonableness simpliciter
Matheson v. College of Physicians and Surgeons of Prince Edward Island,  P.E.I.J. No. 10, 2010 PECA 5, Prince Edward Island Court of Appeal, March 5, 2010, J.A. McQuaid, M.M. Murphy and K.R. MacDonald JJ.A.
The Appellant, Dr. Grant Matheson, was licensed by the Respondent, the Prince Edward Island College of Physicians and Surgeons, to practice medicine as a family physician. In June 2005, the College indefinitely suspended the Appellant’s license due to allegations relating to the inappropriate prescription of narcotics and a finding that the Appellant suffered from an addiction rendering him incapable or unfit to practice medicine. In November 2006, the Council advised the Appellant that he could return to work on receipt of letters from his psychiatrist and family physician and upon signing an agreement to allow the College to monitor his practice. However, in January 2007, after the Appellant had resumed practice, the College received a complaint in writing from Mr. K, a former patient who alleged that in 2005 the Appellant had prescribed narcotics for him and then re-purchased the medications from Mr. K. There was evidence that the College had been verbally made aware of this complaint as early as 2005. However, the College acted on the complaint only when it was submitted in writing in 2007. Subsequently the Fitness to Practice Committee made six separate findings of professional misconduct and suspended the Appellant from practice for a period of 42 months.
The Appellant argued that the Committee made errors of law and errors of mixed fact and law as follows: (1) because the Appellant had been previously sanctioned for conduct similar to that disclosed by the complaint of Mr. K, he should not be further sanctioned even though there are fresh findings of professional misconduct; (2) the College was aware of the nature and particulars of Mr. K’s complaint as early as 2005 and before it was received in writing, and should have investigated the complaint and considered the imposition of sanctions before the Appellant returned to practice in 2007; (3) the Committee failed to appropriately sanction the Appellant, and the suspension of 42 months was not consistent with suspensions imposed in other jurisdictions for similar offences.
The Court of Appeal agreed with both the Appellant and Respondent that the appropriate standard of review in this case was reasonableness. The majority noted that s. 32.2 of the Medical Act, R.S.P.E.I. 1988 Cap. M-5 provides that the Registrar may only refer a complaint to one of the disciplinary bodies if it is in writing and signed by the complainant or a designated representative. It was thus reasonable for the College to decide not to refer the verbal complaint of Mr. K to a disciplinary committee. In adopting this course of action, the College was not deprived of the jurisdiction to sanction the Appellant for his misconduct towards Mr. K when the complaint was eventually presented in writing and investigated. Moreover, Court held that the similarity in the cause of the acts of the professional misconduct does not mean that the College is without jurisdiction or is in error in imposing a separate sanction for professional misconduct found in different complaints.
However, the court concluded that the Committee erred in relation to its application of principles governing disciplinary sanctions. The correct procedure was to make one finding of professional misconduct having regard to the particulars which have been proven, and then consider the imposition of sanctions. In this case, the Committee considered the particulars of professional misconduct as separate offences and then imposed consecutive suspensions, which resulted in a total sanction which was out of proportion to the circumstances of the case. In addition, the totality principle means that sanctions imposed for acts of professional misconduct, especially those which deprive a professional of his or her right to engage in the practice of his or her profession, must be proportional to the overall culpability of the offending professional. The Committee did not apply this principle in this case. A suspension from practice totalling 3.5 years was disproportionate to the nature of the offence and was more severe than an outright revocation, which would have allowed the Appellant to apply to be reinstated one year after revocation. Applying the principle of totality, the Appellant’s licence ought to have been suspended for 18 months.
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