Veterinarian guilty of unprofessional conduct for non-compliant hydromorphone use

The Alberta Court of Appeal upheld the finding of unprofessional conduct for a veterinarian purchasing and failing to account for large quantities of a controlled substance and failing to cooperate in the investigation.

Administrative law – Decisions reviewed – Association of Veterinarians – Judicial review – Appeals – Legislative compliance – Standard of review – Correctness – Veterinarians – Disciplinary proceedings

Sahi v Alberta Veterinary Medical Association, [2023] A.J. No. 1350, 2023 ABCA 368, Alberta Court of Appeal, December 19, 2023, P.A. Rowbotham, A. Kirker and W.T. deWit JJ.A.

The appellant, a veterinarian, came to the attention of the Alberta Veterinary Medical Association in 2019 for purchasing large quantities of hydromorphone. He had purchased 79,050 mg of hydromorphone from 2014 to 2019, of which only 1,336.3 mg was accounted for in his records. The appellant failed to answer questions during the investigation.

At the hearing before the Tribunal of the Alberta Veterinary Medical Association, the appellant admitted to using the narcotic himself for sleep issues. The respondent tendered an expert report finding the claim of personal use unlikely. The appellant countered this with an expert report from an addiction specialist.

The Tribunal found the appellant guilty of unprofessional conduct for dispensing hydromorphone in a manner that was not compliant with the Alberta Veterinary Medical Association Council Guidelines Regarding Prescribing, Dispensing, Compounding and Selling Pharmaceuticals (the Guidelines). The Tribunal also found he was inappropriate in interactions with an inspector in 2018. With respect to the allegation the appellant “distributed and/or sold” hydromorphone in “amounts and/or in a manner that was not in accordance with the provisions of the Controlled Drugs and Substances Act … and … the Narcotic Control Regulations”, the Tribunal was not satisfied on a balance of probabilities that the appellant was selling the narcotic or giving it to someone else. However, the Tribunal found the appellant’s use of the hydromorphone was a “distribution” of the drug in a manner not contemplated by the legislation. The Tribunal imposed fines of $35,000, cancelled the appellant’s registration for five years, and ordered he pay 75% of the actual cost of the investigation and hearing up to a maximum of $105,000. The appellant’s appeal to Council of the Association was dismissed.

At the Alberta Court of Appeal, the appellant argued that the Council failed to provide adequate reasons or correctly review the errors he alleged were made by the Tribunal, including that the Tribunal improperly interpreted the terms “dispensed” and “distributed” in the legislation, erred in accepting the evidence of the investigator, and failed to weigh relevant factors in determining sanctions and costs.

The Alberta Court of Appeal noted that “[w]hen reviewing a decision of the Tribunal, the Council should remain focused on whether the decision is based on errors of law or principle or is not reasonably sustainable. The Council should, however, remain flexible and review the decision under appeal holistically, without a rigid focus on any abstract standard of review.” The Court agreed with the professional misconduct finding. However, it quashed the finding that the appellant was “distributing” or “selling” the drug, holding that this required involvement of a third party. The fine was reduced to $25,000 and the revocation order upheld.

This case was digested by Ellie Einarson, 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 Ellie Einarson at eeinarson@harpergrey.com.

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