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.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).