A successful appeal by a physician (Dr. Swart) with respect to the Respondent College’s decision that he was unfit to practice.

[2014] P.E.I.J. No. 50

2014 PECA 20

Prince Edward Island Court of Appeal

D.H. Jenkins C.J.P.E.I., M.M. Murphy and G.E. Mitchell JJ.A.

December 10, 2014

A patient made a complaint to the Respondent (the College of Physicians and Surgeons of Prince Edward Island) about surgical care provided to her by the Appellant, Dr. Swart. The complaint was reviewed by the complaints and registration committee of the College. That committee had concerns about Dr. Swart’s care and recommended that the matter be referred to the fitness to practice committee (the “Committee”) for review. In August 2012, the Council of the College accepted this recommendation.

Pursuant to the Medical Act, the Committee had significant discretion to determine its process for investigating the complaint. The Committee conducted interviews of the complainant, her family members, three treating physicians, and a nurse. The Committee also interviewed Dr. Swart. The Committee also requested an expert report from Dr. Tunde-Bypass in December 2012. In January 2014, the Committee reported its findings to the Council. The Committee did not keep a record of its investigation but it did provide reasons for its recommendations to the Council. The report to the Council included the following phrases about Dr. Swart’s conduct: “wanton and reckless disregard”, “professional incompetence”, “professional misconduct”, and “unfitness to practice”. This report was sent to the Council in January 2014. The Committee next heard submissions on penalty and then reported to the Council in March 2014. The Committee recommended that Dr. Swart be reprimanded, and be suspended from independent practice until he completed further training.

On April 3, 2014, the Council accepted the Committee’s reports and findings. Dr. Swart appealed the Council’s decision to the Court of Appeal. He argued that the Committee and the Council had breached their duty of procedural fairness. He also argued that the Committee made errors in its investigation and findings. Dr. Swart sought a new hearing before the Committee, and also sought to quash the Council’s April 3, 2014 decision.

The Court confirmed that this was a statutory appeal and the applicable standard of review was the reasonableness standard. The parties agreed to the introduction of two additional Affidavits relating to the penalty imposed by the College.

The Court confirmed that the Act allowed the Committee to exercise discretion in determining its process. In spite of that, the Court held that the Committee breached its common law duty of procedural fairness. There were three breaches. First, the Committee started its interview of the complainant early, before Dr. Swart and his lawyer arrived. Second, the Committee employed double-hearsay in its decision-making process. Third, the Committee utilized the expertise of the Committee members without underlying evidence for certain issues.

The Court held that the Committee made errors in its treatment of the evidence. For example, the Court held that the Committee erred in failing to explain why it preferred the evidence of the complainant in respect of a few issues.

The Court confirmed that only some failures of physicians will amount to a finding of unfitness. The Court did not accept the Committee’s recommendation that this case showed incompetence.

The Court ordered that the core findings of the Committee should be quashed.

Neither party sought costs and no order was made for costs.