The Health Professions Appeal and Review Board (HPARB) returned a matterto the Inquiries, Complaints and Reports Committee (ICR) of the College of Physicians and Surgeons of Ontario (CPSO), directing the ICR to reconsider its decision and issue a further decision with written reasons. This came after the Applicant sought a review of the finding.
The HPARB found that the ICR’s initial decision to issue a Caution to the Applicant had been based on a mistaken belief that the Applicant had a significant history of complaints to the CPSO. In fact, there was only one previous complaint which was for a completely unrelated issue for a breach of the CPSO policy on Treating Self and Family Members.
The Applicant, a physician, was the subject of a complaint by the wife of a now-deceased patient. The patient had died of a heart attack four days after surgery to relieve muscle-invasive bladder cancer and incidental prostate cancer. The operation had been performed by another urologist. The original surgeon last saw the patient in the late afternoon or early evening the day prior to his death. The surgeon was concerned with the patient’s condition but believed the situation would resolve itself. The patient’s care was then transferred to the Applicant, who was the on-call urologist. There was no communication of the original surgeon’s concerns to the on-call urologist.
There were two calls made by the nursing staff to the on-call urologist. The first was a few hours after the surgeon had seen the patient, to clarify a medication to be administered. The second call was a few hours later to report that the patient had vomited. The Applicant ordered a fluid bolus to rehydrate the patient. Vomiting was a known side effect of radical cystectomy surgery. In neither call did the nursing staff communicate to the on-call urologist that the patient was unduly sick or that he needed to be seen urgently.
The complaint expressed her concerns as follows:
HPARB concluded that the ICR’s investigation was adequate.
However, the HPARB found that the decision was unreasonable because it had been based on the false assumption that the Applicant had a significant history of complaints when in fact he had only one. This previous complaint had marginal relevance at best to the current complaint and that fact should have been assessed and considered by the ICR.
A caution, following a disciplinary hearing, carries with it significant consequences for any health professional. The results when published on the CPSO public register can impair their reputation, their licence and hospital privileges. If there is any concern about the adequacy of the investigation or the reasonableness of the decision a health professional should seek legal advice and consider a review request.
At Wise Health Law, we focus on health and administrative law, including appealing and seeking judicial review of disciplinary committees. Our lawyers have significant trial and appellate experience and are passionate about helping regulated health professionals and healthcare organizations understand and protect their legal rights. We will guide you through the process, help you understand potential risks and legal implications, and assist you with or skillfully represent you at the proceedings. To find out how we can assist, contact us online, or at 416-915-4234 for a consultation.
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.