Reasonable for panel to sanction medical student for leaving medical records in a dumpster

A formal complaint of academic misconduct was made against Zhu, a third-year medical student in the College of Medicine (the “College”) at the University of Saskatchewan on behalf of the Saskatchewan Health Authority that there had been an unauthorized release of confidential information in connection with health records which were found abandoned in a dumpster adjacent to his apartment.

Administrative law – Decisions reviewed – College of Medicine – Judicial review – Procedural requirements and fairness – Natural justice – Physicians and surgeons – Professional misconduct or conduct unbecoming

Zhu v. University of Saskatchewan (College of Medicine), [2020] S.J. No. 461, 2020 SKQB 308, Saskatchewan Court of Queen’s Bench, November 23, 2020, N.G. Gabrielson J.

Zhu was provided with notice from the College that a panel (the “Panel”) was being established in accordance with the College’s “Procedures for Concerns with Medical Student Professional Behaviour” (the “Procedures”).

Zhu appeared with counsel at a hearing held by the Panel. At the hearing, he admitted to having brought the records home with him for what he described as educational purposes and apologized. In its reasons given 10 days later, the Panel made a finding of professional misconduct against Zhu for breaching the confidentiality of patients, and for failing to demonstrate due care and attention to his patients’ medical records. The Panel made a number of recommendations regarding sanctions against Zhu including that he repeat a year of the program, he take a medical ethics course, and that, if a future professionalism issue arises, expulsion from the program be strongly considered.

Zhu appealed the decision to an Appeal Board, which upheld the decision of the Panel and the sanctions it imposed.

Zhu brought an application for judicial review of the decisions of the Panel and the Appeal Board to the Saskatchewan Court of Queen’s Bench. His counsel raised five issues for consideration: (1) whether the principles of natural justice were breached; (2) whether the findings of the Panel as to credibility and sanctions related to previous disciplinary events; (3) whether the Panel improperly put the onus on Zhu to apologize; (4) whether the Appeal Board misconstrued Zhu’s ground of appeal as an allegation of reverse onus; and (5) whether the Appeal Board erred in refusing to admit and consider new evidence. The appeal was dismissed for the reasons that follow.

After determining the standard of review was reasonableness, the court considered Zhu’s claim that the principles of natural justice were breached, as the Panel did not follow an adversarial style as described in the Procedures, but rather adopted an inquisitional role to obtain evidence. The court found that Zhu was treated fairly during the entire process before the Panel, that he was provided with appropriate notice where applicable, that he appeared with counsel, and that he had an opportunity to respond to the complaint. The court further held that the sanctions imposed were rationally connected to the complaint made by the reporter. The court noted that the Panel is an administrative body set up by the University to consider lapses in medical student behaviour, and that the process it followed accorded with the Procedures, provided a high degree of procedural fairness to Zhu, and accorded with the principles of natural justice.

The court next considered whether the findings of the Panel as to credibility and sanctions related to previous disciplinary events. The court held that the procedure followed by the Panel accorded with the Order of Proceedings and the sanctions recommended were authorized by the Regulations. The court held that the Panel’s decision was reasonable, transparent, and justifiable.

Regarding credibility and Zhu’s apology, the court held that the Panel was in the best position to assess Zhu’s credibility and/or remorse; the court was satisfied the Panel had the authority to make the decision it did concerning Zhu’s apology and to impose sanctions based on its findings.

With respect to Zhu’s two concerns regarding the Appeal Board’s findings, the court was satisfied that the Board’s decision that the Panel had not reversed the onus of proof was reasonable, and that the Board appropriately exercised its discretion to refuse new evidence from Zhu for the appeal because it could have been brought earlier and would not have been potentially decisive of any of the issues before the Board.

This case was digested by JoAnne G. Barnum, 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 JoAnne G. Barnum at jbarnum@harpergrey.com.

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