Number 16 – June, 2009
| Number 16 – June, 2009 |
Ontario Government Owes No Duty of Care to Front-line Nurses During SARS CrisisOn May 7, 2009 the Ontario Court of Appeal struck out a negligence claim against the Ontario government brought by 53 nurses who had contracted SARS during the 2003 SARS crisis in Toronto. The Court held that the government owed no private law duty of care to the nurses even though Ontario had enacted detailed directives governing infection control in hospitals. The Court reasoned that the directives were designed to protect the public generally from the spread of SARS and that Ontario had no corresponding private law duty to protect the health of individual residents, including nurses. The Court also rejected the claim that Ontario had become a supervisor or employer of the nurses as those terms are defined in the Occupational Health and Safety Act and dismissed the argument that the Ministry of Labour owed a duty to the nurses to take steps to adequately inspect hospitals and enforce occupational health and safety standards there. Finally, the Court dismissed the argument that the government breached s. 7 of the Canadian Charter of Rights and Freedoms, holding that the government had not acted arbitrarily in taking into account the economic impact of SARS in its decision-making. The Ontario Nurses Association, speaking for the plaintiffs, has said that the decision sends the message to front-line nurses that the government is not accountable for their safety or their lives. The nurses are considering seeking leave to appeal the decision to the Supreme Court of Canada. Gore v. College of Physicians and Surgeons of Ontario (2008), 92 O.R. (3d) 195 (Div. Ct.) and Bill 141, the Regulated Health Professions Amendment Act, 2009By Katie Gibson In September 2008, Ontario’s Divisional Court held that investigators of the College of Physicians and Surgeons of Ontario have the power to observe surgery conducted by a physician under investigation. Investigators also have the power to compel a physician to submit to an interview. As physicians are legislated under the Regulated Health Professions Act, 1991, it is reasonable to conclude that the court’s decision applies to all health care professionals who are subject to this legislation. This decision is under appeal. Gore v. CPSO Facts The applicants are all physicians who are being investigated by the College of Physicians and Surgeons. Three are general practitioners who perform cosmetic surgery; one is an anaesthetist. The College initiated the investigation of one of the general practitioners and the anaesthetist after the death of a patient during surgery. All of the applicants challenged the College investigator’s power to require observation of their practices and to compel them to be interviewed. Direct Observation The Divisional Court held that s. 76 of the Health Professions Procedural Code empowers investigators to compel a member under investigation to submit to observation by a person chosen by the College. Section 76 states that an investigator may “inquire into and examine the practice of the member to be investigated” and “enter at any reasonable time the place of practice of the member and may examine anything found there that is relevant to the investigation.” The court held that the ordinary meaning of “inquire into and examine the practice of” includes observing a member in his or her practice. This interpretation also aligns with the legislation’s overriding purpose of protecting the public. The court noted that “direct observation produces an evaluation with a high degree of validity and reliability and allows for a wider scope of evaluation than chart review alone” and that “[o]bservation is particularly important in surgery.” Interviews The court also held that an investigator has the power to compel a physician to submit to an interview. Pursuant to s. 76 of the Code, an investigator has “all the powers of a commission under Part II of the Public Inquiries Act.” Section 7 of the Public Inquiries Act permits a commission to summon witnesses to give evidence. The court held that this section empowers an investigator to compel a member to submit to an interview. The court dismissed concerns that compelling members to submit to interviews would force them to incriminate themselves. The purpose of an investigation is not solely to gather evidence for a disciplinary proceeding; the broader purpose is to collect information so that the appropriate committee may determine whether further steps should be taken. In addition, the court held that College processes are part of a regulatory process, not a criminal proceeding. Bill 141: Regulated Health Professions Amendment Act, 2009 Ontario’s legislature has now passed a bill that enables all health regulatory colleges to make regulations providing for direct observation of members in their practice and will allow college investigators to “make reasonable inquiries of any person”. Direct Observation Section 95 of the Code authorizes health regulatory colleges to make regulations in many areas. For example, clause (h) allows regulations “requiring and providing for the inspection and examination of premises used in connection with the practice of the profession and of equipment, books, accounts, reports and records of members relating to their practices.” Bill 141 now allows the colleges to make regulations “providing for the direct observation of a member in his or her practice, including the direct observation by inspectors of procedures, during the course of an inspection or examination provided for under clause (h).” In introducing the legislation in December 2008, David Caplan, Minister of Health and Long-Term Care, stated that the act then in force “limit[ed] the ability of the colleges to adequately inspect places where potentially unsafe health care services could be provided.” Bill 141 was intended to “strengthen patient safety and the quality of care provided by all regulated health professions and all regulated health professionals in the province.” Interviews Bill 141 also permits college investigators to interview members and others: “An investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters relevant to the investigation.” It further provides that “[a] member shall co-operate fully with an investigator.” Implications for Health Professionals Direct Observation As a result of Gore v. CPSO, colleges may now directly observe the practice of health professionals. The Court of Appeal for Ontario will hear an appeal of this decision on June 10, 2009, and the decision may be overturned at that time. Regardless of the outcome of the appeal, Bill 141 permits colleges to make regulations providing for such observations. Professionals who are employees have always been subject to scrutiny, but now they will potentially be subject to greater scrutiny. Professionals who are not employees (e.g. some optometrists, midwives, massage therapists, etc.) may now find themselves open to direct scrutiny for the first time. Interviews Colleges are now permitted to require interviews of members under investigation. It is unclear whether or to what extent they will exercise this power. In many instances, other approaches, such as permitting written submissions, may suffice. Publication of Members’ Names at the Ontario College of TeachersBy Immanuel Lanzaderes Until recently, it was considered virtually automatic that member who was found guilty of professional misconduct at the Discipline Committee of the Ontario College of Teachers would have his or name published in Professionally Speaking, the College’s quarterly newsletter. In fact, no statutory or regulatory provision requires the College to publish members’ names. Section 30(5) of the Ontario College of Teachers Act, 1996 uses permissive rather than mandatory language for publication:
The Discipline Committee is thus required to consider publication based on the facts of each case, rather than considering publication to be the default choice. However, it is noteworthy that the Discipline Committee continues to take the position that publication is a fundamental aspect of self-regulation and accountability. Publication is intended to serve two goals: specific deterrence and general deterrence. Specific deterrence, as the name suggests, is supposed to deter the individual member from repeating the action or actions which brought him or her before the Discipline Committee. Publication reinforces specific deterrence through its public aspect. Members will avoid repeating the behaviour to avoid the public embarrassment of publication. General deterrence is intended to deter all members. General deterrence is served by publishing the facts, with or without the member’s name. Other teachers reading Professionally Speaking will learn what behaviour is unacceptable by reading the facts that led to the discipline proceedings. The facts outline the prohibited conduct and the decision outlines the consequences. The member’s name is not required to accomplish general deterrence. A review of more recent decisions suggest that the Discipline Committee is increasingly recognizing that publication is not necessary in many circumstances including the following:
Reviewing recent decisions suggests that the Discipline Committee will accept non-publication in the certain rare situations, as outlined above. Specific examples where publication of the member’s name was not ordered include failing to uphold the standards of the profession, cultivating a non-physical relationship with a student, and requesting students to massage a muscle spasm. Having no prior record of discipline also works in favour of non-publication. The Discipline Committee will continue to insist on publication of the member’s name in cases of more serious conduct, for example, sexual assault or a relationship with a student that became physical or intimate. In such cases, the Discipline Committee has held that publication of the member’s name is necessary for both public safety and to ensure the transparency of the process. Publishing the member’s name is required to ensure that the public knows that serious misconduct will be treated seriously. Sparing the member and her or his family or co-workers from embarrassment is of little concern to the College. Publication was ordered when family members with the same last name and in the same town were also teachers. Even if the member’s name has already been published as the result of criminal proceedings, the Discipline Committee considers it a public responsibility to re-publish the name as part of professional regulation and self-regulation. It is important to note that non-publication does not guarantee absolute privacy. Although the member's name may not be published in Professionally Speaking, it is available to those who request specific decisions from the College or who search the legal database, Quicklaw. Any member of the public can access decisions with the member’s name by going to the College’s library or by sending a request. It is always up to the member or his or her lawyer to argue for non-publication. The Discipline Committee will balance the public’s interest in publication with the member’s right to privacy. F.H. v. McDougall : Has the Supreme Court Lowered the Evidentiary Bar for Findings of Professional Misconduct?What kind of proof is required before a professional will be found guilty of professional misconduct? The answer to this question in the past has generally been that there must be "clear cogent and convincing evidence" of misconduct before a professional could be disciplined for professional misconduct. It is not yet clear whether the Supreme Court of Canada's recent decision in F.H. v. McDougall has lowered the evidentiary bar and made it more likely that professionals will face discipline in cases where there is contested evidence. However, there is a basis to argue that F.H. v. McDougall does not substantially change the evidentiary standard applicable in professional discipline proceedings. Even after F.H. v. McDougall, professional colleges must still adduce sufficiently clear, cogent and convincing evidence to support a finding of professional misconduct. Situation Prior to F.H. v. McDougall There exists only two standards of proof in law: the criminal standard of "beyond a reasonable doubt" and the lower civil standard of "balance of probabilities". What this means in practice is that, due to the gravity of criminal sanctions, it is necessary to show that a person accused of a crime is guilty beyond a reasonable doubt. The standard of proof in civil cases is lower: ie. it must be shown that the defendant is liable on a balance of probabilities. In theory the civil standard of proof applies to professional discipline proceedings. However, since the 1977 decision in Bernstein v. College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 (Div.Ct.), courts and tribunals have required "clear cogent and convincing evidence" before a professional can be found guilty of professional misconduct. In practice, this was arguably an intermediate standard justified by the seriousness of the allegations and the severe consequences associated with a finding of professional misconduct. F.H. v. McDougall: Only One Civil Standard The F.H. v. McDougall case involved allegations of sexual abuse made by a former residential school student against a school official. The abuse was alleged to have occurred in the late 1960s. Because the student did not tell anyone about the abuse over thirty years, there was no evidence of the abuse other than his testimony which was denied by the school official. The student was inconsistent in his evidence at trial as compared to the evidence he gave on prior occasions as to the frequency and nature of the abuse. The trial judge concluded that the school official assaulted the student. This ruling was overturned by the Court of Appeal and then restored by the Supreme Court. The Supreme Court ruled that there is only one standard of proof in all civil cases and that is proof on a balance of probabilities. It noted that the caselaw has in the past accepted that a heightened standard of proof applied where criminal or morally blameworthy conduct was alleged. The Court rejected this approach. It ruled that different levels of scrutiny do not need to be applied depending upon the seriousness of the allegations involved. However, the Court did note that "evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test." The Court also noted that "context is all important" and a judge "should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences." Has Anything Changed? It is unclear whether the Supreme Court's decision in F.H. v. MacDougall will lead to more findings of professional misconduct. Although the case is not a professional discipline case, due to the nature of the allegations in the case, it can be expected that professional colleges will seek to apply it in the professional discipline context. Counsel for colleges may argue that the Supreme Court's decision lowers the evidentiary bar for findings of professional misconduct. However, there is a basis to argue that the Supreme Court's decision does not make any dramatic changes to the standard of proof required in professional discipline proceedings. Although the Court does find that the civil standard applies, it also makes clear that the balance of probabilities standard will not be met without the existence of sufficiently clear, cogent and convincing evidence. While the form of the analysis may have changed, colleges must still advance clear cogent and convincing evidence. For their part, Discipline Committees must recognize that "context is all important" and must take into account the inherent probabilities or improbabilities of the evidence as well as the seriousness of the allegations or consequences of a finding of misconduct. Update for Professionals Archives | Cavalluzzo website | Human Rights Update We welcome your comments. If you have comments about the newsletter, we would value receiving them, or to unsubscribe to this newsletter, please send a reply e-mail with UNSUBSCRIBE in the subject or send an e-mail to the Editor, Janina Fogels, at updateforprofessionals@cavalluzzo.com. To add yourself to the newsletter mailing list, please send an email to majordomo@cavalluzzo.com with the word SUBSCRIBE in the subject line. To find out more information about the firm and its lawyers and the scope of our practice generally, visit our web site at www.cavalluzzo.com. If you have specific questions regarding the regulated professions, you may contact Elizabeth McIntyre at 416.964.5501 or at emcintyre@cavalluzzo.com. Providing this information does not constitute individualized legal advice, and does not establish any form of lawyer-client relationship with our firm or with any of our lawyers. Readers should not rely on or take any action based on this information; professional advice should be obtained. While we strive for accuracy, mistakes are possible and there may be errors and omissions. We disclaim any liability for such errors and omissions. Copyright 2009 © Cavalluzzo
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