Investigations require the regulator and investigator to make multiple choices throughout. Registrants sometimes suggest that some of the choices made are unfair. Courts tend to show deference to investigative choices by regulators.
In Saeed v. College of Physicians and Surgeons of Ontario, 2025 ONSC 6485 (CanLII), the regulator received several adverse event reports about a general practise anaesthesiologist. It appointed a specialist in anesthesiology as an assessor to investigate. The Assessor was given twelve charts to review, mostly of high-risk patients. “The Assessor raised concerns about the Applicant’s medical record keeping, triaging of patients for procedures at the [clinic], delegation of responsibility to an Anesthetic Assistant, and clinical care and judgment.” The physician responded acknowledging some, but not all, of the concerns. The Assessor later submitted an addendum to his report noting improvements by the physician and indicating that he did not know that the charts selected were of high-risk patients. The physician also submitted an expert report indicating “that in a significant number of cases, the medical records did not contain enough information to permit anyone to assess the [physician’s] standard of care.” The screening committee directed the physician to undergo remediation to improve both record keeping and quality of care.
The physician challenged the decision on several grounds, all of which the Court dismissed. The Court made the following points:
- A process that involved giving notice of the concerns and an opportunity to respond in writing at the complaints-screening stage was procedurally fair .
- “The [complaints screening committee] has wide discretion in choosing what documents to review when disposing of an investigation. An assessor is not required to include a randomized practice assessment.” The decision to review files of high-risk patients “was reasonable and relevant”.
- There was no bias on the part of the screening committee because of some errors made by the Assessor (e.g., extrapolations based on inadequate records) where the committee was aware of them and disregarded them.
- It was within the discretion of the regulator to select an Assessor who had specialized qualifications even though the physician being assessed was not a specialist. It was reasonable for the committee to view the standard of care for sedation as remaining the same regardless of the qualifications of those administering it.
- The screening committee was not required to review all the source material. It has discretion to actually review some charts but rely on the expert reports for the other patients. In any event, even if the screening committee relied on just one of the charts , there was sufficient evidence to support its decision.
- “Even if the [committee’s] finding was just with respect to insufficient record keeping, the Court has previously agreed that the two aspects of a doctor’s medical practice, clinical care and record-keeping, are inextricably linked and that good medical record keeping is part of providing good medical care….”
- There was a concern that the committee may have been confused about the physician’s prior history. The Court said: “Even if this amounts to an error, it does not render the decision unreasonable. If there are mistakes with some individual items, such mistakes do not reach the threshold required for the court to intervene.” In this case it would have made no difference to the outcome.
The investigation by this regulator was determined to be fair and appropriate.