Wise Health Law had a recent victory in the judicial review of a decision of the College of Physicians and Surgeons (CSPO) to issue a caution to a doctor following a patient complaint. The CSPO decision was upheld by the Health Professionals Appeals and Review Board (HPARB). Valerie Wise and Rozmin Mediratta successfully argued before the Ontario Divisional Court that both decisions were unreasonable because the decisions did not align with the medical evidence before both Boards.
A patient made a complaint to the College of Physicians and Surgeons (CPSO) about the care she received from a doctor who became her most responsible physician (MRP) sometime after the patient's admission to the hospital. The patient had a history of chronic back pain and had been admitted for a suspected overdose ingestion of pain medication. The doctor became the MRP at partway through the patient's stay at the hospital and monitored the situation via regular phone calls with the nursing staff. The patient's allegation was that the doctor “did not examine me, observe me or request that any other physician do so.”
The Inquiries, Complaints and Reports Committee (ICRC) of the CPSO determined that a caution was needed because of the doctor's failure to attend the hospital to see the patient after being notified of the patient's deteriorating condition.
The ICRC had before it the patient's hospital record, her complaint and other filings from the family. It also had the report of an expert retained by the doctor, which opined that she had met the standard of care in the circumstances. This opinion was uncontested on the record. There was however the usual “ghost opinion” before the committee from an expert the committee had retained. That opinion stated that attendance in person would have been appropriate. It is called a ghost opinion because the author remains anonymous, supposedly to insulate them from criticism and thereby allow for an objective review.
It is encouraging to see that the court used the words “uncontested expert opinion” when summarizing the evidence in reference to the opinion provided by the expert retained by the physician.
The doctor sought a review by the Health Professions Appeal and Review Board (HPARB). The doctor asked for a more adequate investigation (witness statements) and a finding that the decision was unreasonable (not supported by the uncontested evidence). She was unsuccessful. The Board felt the ICRC had grounds for their “grave concern” based on the medical records and the ghost opinion.
The doctor applied for a judicial review of the HPARB decision. The Divisional Court stated that the standard of review was one of reasonableness. The ICRC decision was not under review, but the court stated it must review the reasonableness of that decision as well to be able to assess the reasonableness of the HPARB decision.
The court had to determine whether it was reasonable for the HPARB to conclude that the decision of the ICRC was reasonable. The court determined they were not reasonable in deciding as they did. This was because the ICRC decision contained findings that were not supported by the medical record. The key unsupported findings were as follows:
As a result, the decision of the ICRC was unreasonable, which in turn meant that so was the decision of the HPARB. The disposition was an order quashing the decisions, with costs awarded to the doctor.
I accept that the result may seem obvious and trite. If findings are made which are unsupported by the evidence they cannot stand. The more useful question to answer is why it happened, especially before an experienced and sophisticated committee and board? The answer is likely the ghost opinion. It would have been an expert that was well known and respected by the committee members. It did suggest an attendance was necessary by the doctor, and the opinion likely contained the expert's medical findings and conclusions from a reading of the medical record. The other possibility is that the committee members held or formed the same opinion after their review. This stresses the importance of two things:
At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through the often-overwhelming discipline process. To find out more about how we can help, contact us online, or at 416-915-4234for 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.