Screening Committee’s Remedial Direction Found to Have a Deterrent Value

Screening committees often recommend or, where authorized to do so, direct practitioners to engage in remedial activities. The rationale for this authority is that such remediation can enhance the quality of the performance of the practitioner and can prevent complaints from a similar nature arising in the future. However, a recent Court decision said that such directions can also have a deterrent value: M.J.S. v. Health Professions Appeal and Review Board, 2022 ONSC 548 (CanLII),

In that case a practitioner made a comment that was, at a minimum, highly insensitive and inappropriate. The practitioner’s employer investigated the concern and required the practitioner to undergo communications training. The regulator then investigated the matter relying partly, but not entirely, on the employer’s investigation file. The screening committee directed the practitioner to do some self-reflection and to be cautioned in person. Such a caution is posted on the public register.

In upholding the decision (including its affirmation by the reviewing Board), the Court noted that posting the outcome did not fundamentally alter the educational and remedial nature of the direction; it was not a punishment. However, part of the reason for posting it on the public register was the specific deterrence of the practitioner and the general deterrence of the profession as a whole. Overall, the Court held that the caution “is an educational and remedial measure intended to improve the physician’s practice and to benefit the public by avoiding future concerns.”

The Court also provided guidance on the criteria for reviewing the screening committee’s decision. An adequate investigation does not require the screening committee to repeat the employer’s investigation unless there was reason to believe that some relevant information had not been obtained.

In terms of the reasonableness of the decision, a reviewing Board would look to whether the screening committee “explained its reasons for the disposition, tied its disposition to the conduct of concern, and recognized its mandate is to improve a physician’s practice and to protect the public.”

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