Court ordered a reconsideration of doctor’s hospital privileges application for lack of procedural fairness

The administrative decision-maker was held to have breached its duty of procedural fairness because it failed to share all relevant information with the applicant and failed to provide him with a reasonable opportunity to respond before the decision was made.

Administrative law – Decisions of administrative tribunals – Duty to disclose evidence – Health authorities – Hospital privileges – Investigations – Judicial Review – Natural Justice – Physicians and surgeons – Procedural requirements and fairness

Young v. Central Health, [2016] N.J. No. 289, 2016 NLTD(G) 145, Newfoundland and Labrador Supreme Court – Trial Division – General Division, August 31, 2016, W.H. Goodridge J.

A family physician’s application for medical privileges and appointment to medical staff with a health authority was denied.  The physician had enjoyed medical privileges with the health authority for several years but resigned in 2014 as a result of allegations of professional misconduct.  Through the College of Physicians and Surgeons of Newfoundland and Labrador’s disciplinary process, the physician pled guilty to professional misconduct, resulting in a 19 month suspension from practice.

After the suspension period, the physician applied to the health authority for medical privileges.  The application was processed as an initial appointment, rather than a reappointment pursuant to the health authority’s bylaws.  An employee of the health authority reviewed the application and made inquiries with the physician’s former employer.  The employee formed the opinion that the physician’s application did not meet the health authority’s application requirements, as set out in their bylaws. The physician was advised by letter of the health authority’s decision and the reasons for the decision. These reasons included past professional misconduct and misrepresentations by the physician to the health authority in and around the time of the misconduct.

In considering procedural fairness in this case, the Court held that the duty fell near the mid-point on the broad spectrum of procedural fairness, which would include advance disclosure to the physician and the right to respond fully to all information relied upon by the decision-maker.  The Court held that the employee was engaged in an investigative and inquisitorial process which attracts a higher level of procedural fairness than someone in a screening role.

The Court found that there was a breach of the duty of procedural fairness because the decision-maker failed to share all relevant information, such as negative references and notes from phone calls to prior employers, with the physician and failed to afford him a reasonable opportunity to respond before the decision was made.

The Court ordered a reconsideration of the application without any involvement or input from the employee who first reviewed the matter, and ordered that full disclosure of all documentation and information considered be provided to the physician.  The physician was to be provided with a reasonable opportunity to respond either orally or in writing to all of the documentation and information being considered.  The Court held that the employee who first reviewed the matter could have no further involvement as he had already judged the matter without providing the physician with procedural fairness, and to allow him to continue to be involved would give rise to a reasonable apprehension of bias.

This case was digested by JoAnne G. Barnum of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at jbarnum@harpergrey.com or review her biography at http://www.harpergrey.com.

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