Visconti v. College of Physicians and Surgeons of Alberta

[2010] A.J. No. 954

Alberta Court of Appeal

F.F. Slatter, J.D.B. McDonald and M.B. Bielby JJ.A.

August 27, 2010

In June 2007 the Council issued a Notice to Practitioner against Dr. Visconti particularizing 46 charges of professional misconduct between 2002 and 2005. The charges were considered at a hearing before the Investigating Committee of the Council, which heard evidence from Dr. Visconti as well as other lay and expert witnesses. At the close of the hearing, the Investigating Committee recommended that Dr. Visconti be found guilty of 40 of the 46 counts and recommended a particular penalty.

When the Council met to consider the recommendations, they accepted the recommendation that professional misconduct should be found against Dr. Visconti on 40 of the 46 counts, but imposed a harsher penalty.

The first issue on appeal was whether the Council's finding of professional misconduct for failure to record ventolin dosages was unreasonable. The parties agreed that the standard of review was reasonableness. The Court of Appeal held that because the decision to find Dr. Visconti guilty of professional misconduct in respect of failure to record ventolin dosages was based, partly, on evidence irrelevant to those charges, it was unreasonable. Nine of the convictions were influenced by findings of professional misconduct which had not been the subject of the charges laid out in the Notice to Practitioner.

Specifically, professional competence with respect to ventolin dosing was not raised as an issue until Dr. Visconti's cross-examination. During that evidence, Dr. Visconti testified to administering standard doses of ventolin at levels which, another expert testified, were one-tenth the accepted standard dose set out in medical guidelines. The Investigating Committee and the Council cited significant concerns in respect of underdosing Ventolin as part of the reason for convicting Dr. Visconti of professional misconduct in respect of the failure to properly chart ventolin dosages.

The Court held that although Dr. Visconti's evidence was "potentially disturbing", it could not form the basis for conviction where the charge was a failure to properly chart. Dr. Visconti had not been provided with notice of this allegation and did not have the opportunity to lead evidence, cross-examine the other side's expert witness, or provide his own expert evidence. The Court rejected an argument that notice could be inferred from the particulars provided by the College later. The Court cited the decision in Re Golomb and College of Physicians and Surgeons of Ontario (1976), 12 O.R. (2d) 73, [1976] O.J. No. 1707 (Ont. Div. Ct.) for the proposition that a charge must be particularized such that an accused has appropriate notice. No inference was made that Dr. Visconti had waived the right to know the case against him. The Court specified that the appropriate course of action would have been to seek an adjournment of the proceedings after this evidence arose, and for the College to declare its intention to investigate the matter. Dr. Visconti could then be permitted an opportunity to answer the charges. If there was concern about danger to the public, the College could use its interim suspension powers under the MPA against Dr. Visconti, pending completion of the further investigation.

The Court underlined the importance of providing notice to the professional and said "however alarming, the nature of the new evidence did not justify stripping Dr. Visconti of his right to know the substance of the allegations against him and to prepare to meet them." The appeal was allowed on this ground and nine of the charges were dismissed.

The Court then turned to the question of whether the penalty imposed by the Council was unreasonable. It held that the penalties should be revisited given the reduced scope of misconduct arising out of the dismissal of the nine charges. Even if the appeal had otherwise been dismissed, the penalties imposed by the Council were designed to remedy misconduct outside the scope of the offences of which Dr. Visconti was convicted or charged and as such, should be altered.

The penalty imposed by Council included a 24 month suspension, of which 21 months would be held in abeyance if Dr. Visconti met certain conditions, including a 200 patient per week cap, a 24 hour period without patient contact each week, 25 hours of asthma/respiratory illness continuing medical education, 50 hours of continuing medical education per calendar year, and peer reviews at 6, 12 and 24 months on topics including quality of care, charting and billings.

Although the College argued that the penalties imposed which seemed to address quality of care concerns were justified due to public safety issues, the Court concluded that the Council's findings with respect to appropriate patient care were interwoven with findings on the misconduct for which Dr. Visconti had been charged and convicted, and that the penalties were therefore inappropriate.

Although the legislature had given the Council of the College authority to impose penalties under s. 66 of the MPA, sentencing must be done according to the principles of proportionality and the requirement that the penalty match the offence. A penalty must reflect "what has actually happened" (Jaswal v. Newfoundland Medical Board (1996), 138 Nfld. & P.E.I.R. 181 at para. 35, [1996] N.J. No. 50 (Nfld. S.C.(T.D.)). Principled sentencing in matters of professional misconduct should consider the impact of the incident on the patient, and the degree to which the conduct was outside the range of permitted conduct. A penalty imposed should also be consistent with the range of sentence in similar cases. "In other words, the sentence must fit the crime, rather than include redress for unindicted misconduct."

The penalties were found to be unreasonable and were remitted back to the College for reconsideration.

The Court noted that the Council should have allowed Dr. Visconti to make submissions on the increased level of penalty compared with the recommendation by the Investigating Committee, in accordance with the principles of fundamental fairness.

On costs, the question was whether the Council had breached the principles of natural justice and procedural fairness in ordering that Dr. Visconti pay costs of about $80,000.00. Dr. Visconti argued for a standard of review of correctness and the College submitted that the standard of review should be reasonableness. The Court applied a reasonableness standard to the imposition of penalty and costs, since these questions were left entirely to the discretion of the Council under the MPA.

The principles of natural justice and procedural fairness had not been breached by the order to pay costs, but the order to pay full costs was unreasonable given the now reduced number of convictions. The issue of costs was remitted back to the College.

The Court specified that the result in the case did not preclude the College from laying and prosecuting charges of professional incompetence against Dr. Visconti relating to under medication of patients.

F.F. Slatter J.A. dissented. His Lordship agreed with the majority on the issues of remitting the penalty back to the Council for reconsideration, but would have upheld the finding of guilt on the nine counts of failure to record ventolin doses as reasonable.