An example of how not to suspend a physician from practice for incapacity

21. January 2020 0

The Appellant physician, Dr. Collett, successfully appealed a decision of the College of Physicians and Surgeons of Alberta’s Appeal Council. The Appeal Council had dismissed Dr. Collett’s appeal of the Complaint Director’s decision to suspend him from practice on July 31, 2018.

Administrative law – Decisions reviewed – College of Physicians and Surgeons – Suspension – Judicial review – Bias – Appeals – Procedural requirements and fairness – Physicians and surgeons

College of Physicians & Surgeons of Alberta v. Collett, [2019] A.J. No. 1589, 2019 ABCA 461, Alberta Court of Appeal, November 28, 2019, M.S. Paperny, B.L. Veldhuis and T.W. Wakeling JJ.A.

The Appellant, Dr. Franklin Collett is a 74 year-old physician and long-time registrant of the College of Physicians and Surgeons of Alberta (the “College”). After a series of events, he underwent a neuropsychological assessment with Dr. Mapou in January 2018. Dr. Mapou found that Dr. Collett had a “mild cognitive impairment of unclear etiology”. This report was then discussed with Dr. Collett in April 2018. The file was then referred to the Respondent, Dr. Caffaro (Complaints Director of the College).

On Wednesday, July 25, 2018, the Complaints Director sent a letter to Dr. Collett advising that his license to practice would be suspended on Tuesday, July 31, 2018, unless he voluntarily undertook to withdraw from the practice of medicine until such time as he was adjudicated to be fit for practice based on a comprehensive occupational assessment.

Dr. Collett’s counsel responded to this letter on July 30, 2018, attaching a list of medical interventions that Dr. Collett had taken in recent months. He also pointed out that none of the treating physicians had suggested Dr. Collett was incapacitated in a way that would render it inappropriate for him to continue to practise medicine. He asked for further time to respond. The Complaints Director declined and the suspension took effect on July 31, 2018. The College notified the public of this suspension on this date.

Dr. Collett appealed this decision to the Council of the College. On October 25, 2018, the Council dismissed his appeal. Dr. Collett appealed to the Alberta Court of Appeal.

The College lifted Dr. Collett’s suspension on September 9, 2019. The Court of Appeal heard this appeal on October 11, 2019, after Dr. Collett had been reinstated.

The Complaints Director argued the appeal was moot because Dr. Collett had been reinstated. The Court rejected this argument, finding there were important issues that divided the parties.

Dr. Collett challenged the suspension decision on three grounds. First, he argued there was no evidence he was incapacitated. Second, he argued the College did not grant him procedural fairness. Third, he argued a reasonable person would conclude the College was biased against him.

The Court first addressed the incapacity issue. The Court reviewed the statutory test and held that there was a subjective and objective element to the threshold required before taking extraordinary action and preventing a physician from practising. The Complaints Director never even stated in his letter that he believed Dr. Collett was incapacitated. He simply advised that there was a concern of a suggestion of cognitive impairment. There was no evidence that would have allowed the Complaints Director, acting reasonably, to conclude that Dr. Collett met the statutory definition of incapacitated.

The Court next addressed the procedural fairness issue. The Court concluded it was inadequate and unfair for the Complaints Director to give Dr. Collett two business days to decide whether to voluntarily withdraw from practice or be suspended from practice.

The Court next addressed the reasonable apprehension of bias issue. The Court concluded that the historical acts relied upon by Dr. Collett were not sufficient to support this argument.

The Court held that the Council erred in dismissing Dr. Collett’s appeal against the College’s July 31, 2018, suspension of his practice. The Court quashed the Council’s decision and varied its order to allow Dr. Collett’s appeal and to set aside the College’s July 31, 2018, directive suspending Dr. Collett’s license to practice.

M.S. Paperny J.A. concurred in the result, but prepared additional reasons explaining that the Council’s decision was not reasonable.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at

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