Interim Orders and Evidence of Exposure to Harm

Many regulators have the authority to impose interim orders before a hearing where the public is at risk of harm. Courts defer to the expertise of the regulator in these cases but still require evidence that the public is exposed to harm or injury. Guidance on this issue was provided by the Divisional Court of Ontario in Fingerote v The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131, http://canlii.ca/t/htqf7. In that case a complaint was made by a patient that the practitioner had commented on, stared at and unnecessarily touched her breasts during the course of a chest auscultation. The practitioner denied any inappropriate conduct and suggested that the patient may have misperceived the nature of the interaction. The regulator imposed an interim order imposing a requirement for a chaperone while patients are seen.

The Court set aside the interim order on the basis that there was no evidence that the doctor’s conduct exposes or is likely to expose his patients to harm or injury (the test for health regulators in Ontario). There was no expert evidence that indicated that the reported observations of the patient were inconsistent with appropriate clinical procedures. The Court indicated that it was not open to the panel to make those conclusions based on its own expertise in the circumstances of this case. Nor was there evidence that the conduct might continue. The Court did say that there may be “cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm” but this was not one of them.

The Court also said:

If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.

This decision highlights the difficult task regulators face when deciding on interim orders. In some cases, the allegations of misconduct themselves may not be sufficient to meet the exposure to harm test required for interim orders.

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