Once a matter has been referred to discipline, how much leeway does the regulator have to reword the allegations? That issue arose in Moodley v. College of Physicians and Surgeons of Nova Scotia (Hearing Committee), 2023 NSCA 70 (CanLII).
Three complaints were made against the physician. They were screened separately, and each was referred to discipline. After the referral, the allegations were reworded. The physician argued that this was not permitted.
The Court examined the language and scheme of the legislation. It noted that, in the legislation, the concerns were initially referred to as “complaints” when they were received by the Registrar, then as “matters” when they were before the screening committee, and then as “charges” before the discipline panel. The Court found that this varied language and the increasing formality of the process indicated that the language of the charges before discipline did not need to be identical to the matters that were referred by the screening committee. In fact, there could be enhanced fairness in making the concerns more precise at the discipline level.
The Court said that the substance of the allegations should not change. No significant change occurred here. For example, the Court found that the referral of the matter of performing an “unwanted” episiotomy was not substantively different in the formal charge of performing “an episiotomy contrary to the expressed wishes of the patient”.
This issue could have been avoided if the screening committee made only a referral in principle and had prosecuting counsel draft the formal “charges” before making the final referral to discipline.
On the facts, there was no need for the Court to address the issue of whether the regulator could, by motion before the discipline panel, amend the notice of hearing to include new or different concerns.
The physician also challenged the decision of the regulator to combine the three referrals into one notice of hearing. The Court found that there was nothing in the legislation preventing the consolidation of the referrals. The Court did indicate, however, that where the registrant asks for a severance of the allegations, the hearing panel must exercise reasonable discretion. For example, there is always a concern that there could be a propensity to use the evidence or finding on one of the charges to support a finding on the other charges.
The Court found that there had been no procedural unfairness in the process.