25.4 (1) The Inquiries, Complaints and Reports Committee may, subject to subsections (2) and (6), at any time following the receipt of a complaint or following the appointment of an investigator pursuant to subsection 75 (1) or (2), make an interim order directing the Registrar to suspend, or to impose terms, conditions or limitations on, a member’s certificate of registration if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.
Further, any order made must be the least restrictive possible needed to protect the public.
The Committee is clearly entitled to form its own opinion but it must do so on “some evidence," not evidence of below standard conduct, but evidence of probable harm. Here, I can find none. In coming to that conclusion I am not weighing evidence. I am searching for its existence. Without evidence of the probable exposure to harm, the Committee is merely speculating based in essence on one incident. That it cannot do.
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The determination of whether a doctor “exposes or is likely to expose
patients to harm or injury” is a nuanced and difficult decision. Interim conditions are discretionary and extraordinary. They have the potential to greatly harm a doctor’s reputation and to do so quite unjustly if the underlying allegations are not made out. However, when dealing with issues of professional misconduct generally, and sexual abuse in particular, it is absolutely imperative that vulnerable patients be adequately protected. If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.
As noted at the very outset of these reasons however, the law requires that the Committee draw inferences and form its opinion based on evidence. It cannot speculate. In this case, it points to no evidence nor any basis to find that Dr. Fingerote is likely to expose his patients to a risk of harm or injury other than its finding that the allegations made could, if proven, amount to sexual abuse. The label “sexual abuse” is not, in and of itself, probative of the risk of future harm. It is the acts themselves that is, the evidence supporting the underlying charge - and then any other evidence of urgency or other relevant circumstances that are evidence on which an inference or an opinion may be formed. It may well be that there are cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm. However here, where the facts are contested, the conclusions are based on a person’s perception of another’s intention, and where there is a clinically appropriate explanation put forward with no evidence to the contrary in the record, the Committee needs to point to some evidence to support its inference or opinion that the doctor exposes or is likely to expose his patients to harm or injury.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.