Deference and Decision Writing

When a medical regulator imposes restrictions on the registration of an anesthesiologist following adverse events, including concerns about inattention to patients and possible fabrication of records, one would expect a high degree of deference from the courts. Especially where the anesthesiologist has a history of inattention and documentation concerns. In Sharma v. College of Physicians and Surgeons of Ontario, 2023 ONSC 5687 (CanLII), the majority of the Court did demonstrate such deference.

The regulator can impose an interim order where it forms the opinion that a registrant’s conduct “exposes or is likely to expose patients to harm or injury.” The majority of the Court found that there was evidence of exposure to harm to future patients based on reports provided to it. The principal objective of the order was to protect the public and the regulator had the regulatory and clinical expertise to best assess what order should be made. So long as there was some evidence to justify the order, it should be upheld. In this case, the regulator expressed awareness that the order should not go beyond what was appropriate to protect the public from harm. The concerns about fabrication of records made other interim options less feasible. The majority also accepted the regulator considering the priory history of the registrant.

The majority acknowledged some concerns about the reasons provided by the regulator. The reasons included a statement in quotation marks about the anesthesiologist putting “safe patient care in jeopardy”. No such statement was in the record before the regulator. The Court was prepared to accept that this quoted statement was intended to be the regulator’s summary conclusion of the information rather than a quotation from a witness. More concerning, the reasons did not directly address two defence expert reports indicating that the anesthesiologist had met the standard of practice in the most concerning adverse events. However, the majority noted that the regulator had indicated that it considered the anesthesiologist’s materials. Also, the defence reports had gaps to them including relying upon the records that appeared to contain fabricated data.

A dissenting member of the Court was particularly concerned that the regulator had not directly grappled with the defence expert reports on the two most concerning incidents.

As Dr. Sharma’s actions or inaction on these dates was critical to the decision of the ICRC, one might have expected some comment or explanation of why the expert opinions were not accepted. Unfortunately, no such comment or explanation was provided. If the two experts are correct, Dr. Sharma’s care was appropriate and it cannot be said that he is likely to place his patients at risk of harm or injury. If the evidence of the two experts could not, for some reason, be accepted it was incumbent upon the ICRC to explain why….

The reasonableness of a decision may be jeopardized where the decision maker has failed to account for the evidence before it. This is all the more so when the decision has a harsh or severe impact on the rights and interests of the person affected.

Nevertheless, the interim order was upheld by the majority.

It is difficult for regulators to draft comprehensive reasons for interim orders which, necessarily, are time sensitive. However, the defensibility of such orders may be at stake.

 

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