Health Professions Review Board Overturned

Recently, the BCSC overturned a decision from the Health Professions Review Board which had interfered with disposition from the Inquiry Committee for the CDSBC. The Board had concluded that the investigation into a complaint was inadequate and the disposition was unreasonable. The complaint involved an allegation of incompetence arising out of only one negligent error made by a dentist. The IC's view was that one mistake did not establish that the dentist was incompetent. It conducted a review of several other files where the patients had been properly treated. Therefore it decided that there was no pattern of incompetence. The Review Board determined that one incident could indeed form the basis of an incompetency finding and sent the matter back to the IC with specific direction that action had to be taken against the registrant even if there was only one error. The decision contains a lengthy analysis of when a reviewing court will intervene, but the bottom line was that the Review Board's decision was overturned because it was patently unreasonable. The Review Board applied the wrong standard of review when it considered the College's interpretation of the Health Professions Act and when it assessed the evidence before it (the standard is reasonableness). It had applied its own assessment of the evidence instead of asking whether the IC's assessment was reasonable. In short, the Review Board failed to extend deference to the IC's decision. College of Dental Surgeons of B.C. v. Health Professions Review Board, et al 2014 BCSC 1841

Ontario College of Pharmacists v. 1724665 Ontario Inc (DOB Global Pharmacy)  2013 ONCA 381 is an important case and the first one to consider the impact of international internet pharmacies and the ability of a provincial regulatory college to regulate them.  A call centre operating in Ontario arranged for prescription drugs manufactured mostly in India to be delivered to patients in the USA.   The call centre referred to itself as a "pharmacy"  and used other prohibited words such as "pharmacist" and "drug".  The drugs did not enter Canada.  The corporate entities running this business and their employees were not licensed in Ontario.  The argument was that they were not selling prescription drugs within Ontario because the drugs did not enter Canada, the patients were in the USA among other things.  The OCA upheld the trial judge's conclusion that there was a sufficient connection to Ontario to ground the Ontario College of Pharmacists' jurisdiction over the business.

A Useful Decision from the Ontario Supreme Court

Yazdanfar v. College of Physicians & Surgeons of Ontario 2013 ONSC 6420 (CanLii) is a useful decision that considers many issues.  The case was lengthy taking up over 68 days of hearing and considered allegations of professional misconduct and incompetence involving over 30 patients.    There were concerns around the physician's advertising of her professional services by using patients' testimonials in addition to the evidence around incompetent practice.  The College investigator gave expert opinion evidence, after interviewing the physician, who was compelled to attend the interview.  The transcript of that interview, was entered into evidence.  The Discipline Committee imposed very strict and severe conditions on the physician's practice that effectively made it difficult for her to practice.  The physician argued, among other things, that there were no written guidelines involving some of the practice concerns in issue.  The Court confirmed the well known principle that standards of practice do not need to be written down and exist by reference to evidence of a common understanding within the profession as to expected behaviour of a reasonable professional….(para 36).  The Court  held that a compelled statement is admissible in the context of a discipline hearing.  This is important because there has been some question about whether the criminal law concept of the right to silence has a place in this regulatory context (para 73).  The Court approved the use of the in house investigator as an expert and noted this was common practice within the regulatory context (para 75).  It further upheld the College's advertising guidelines around the use of testimonials and superlatives noting the vulnerable position of patients in relation to physicians (para 114).  Finally, the Court concluded that even though the imposition of conditions may have been tantamount to a revocation of licence to practice, the more important value was protection of the public.  The penalty was reasonable. (para 164)