Botros v Beadle

[2007] OJ No 3156
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Botros was a specialist in psychiatry and sleep medicine. Three patients complained to the College of Physicians and Surgeons of Ontario (“the CPSO”) that Botros improperly diagnosed and treated them and that his communications were rude and unprofessional. It was also alleged that Botros withheld information and patient data from the successor physician. The Inquiries, Complaints and Reports Committee of the CPSO (“the Committee”) considered the three complaints together and decided to caution Botros and refer him to the CPSO Quality Assurance Committee (“the QAC”). The Committee reached its decisions before considering the results of an upcoming site inspection of Botros’ clinics.

Botros requested that the Health Professions Appeal and Review Board (“the Board”) review each of the Committee decisions. Preceding Board review, the Board disclosed to Botros some, but not all, of the materials that had been relied upon by the Committee in reaching its decisions. The Board concluded that the investigation was adequate and the decisions reached by the Committee were reasonable in all three complaints.

Botros applied for judicial review of the Board’s decision on the grounds that (1) the Board erred in law in concluding that the site inspection report would not have affected the Committee’s decisions; (2) the Board breached the rules of procedural fairness by failing to provide complete disclosure of materials relied upon by the Committee; and (3) the Board erred in concluding that the Committee’s investigation had been adequate and its decisions reasonable.

The Court dismissed the application. It held that the Board did not err in concluding that the Committee’s decision of not waiting for the site inspection report was reasonable. Medical expertise was not required to determine that the report did not address Botros’ skills and communications, which were at issue in the complaints.

The Court held that the Board’s decision not to disclose all relevant materials to Botros was reasonable given the Board’s statutory powers to limit disclosure in order to protect individuals’ privacy. The discretion not to disclose must be exercised sparingly. However, it is exercised reasonably without infringing the duty of procedural fairness owed to regulated professionals in circumstances where disclosure could affect third parties or impair the Board’s ability to obtain expert opinions in the future. Nothing prevents the Board from using undisclosed information in its decision-making process.

The Court held that that the Committee investigation was adequate. The Committee was not required to consider the three complaints separately, as long as no outside information was considered. The Committee, having medical expertise, was in a position to prefer the opinion of one medical expert over another. On this basis, and since the Committee investigator found serious issues with Botros’ practice, the Committee’s decision to refer him to the QAC was reasonable.

The applicant seizes on the Board's reference to itself as a lay Committee and not able to prefer one medical opinion over another, to argue that it went beyond its jurisdiction to find that the Hawke Report would not have altered the Committee's decision. But that comment must be seen in context: the Board was stating that its mandate was to consider the reasonableness of the Committee's decision. It had already found that the only decision the Committee made as to the Hawke Report — not to wait for it — was reasonable. It did not need to prefer Dr. Hawke over the medical inspector or vice versa; that was not what was before it. The issues before the Committee, and therefore the Board, largely dealt with Dr. Botros' communications with his patients, specific diagnostic errors and his apparent lack of concern over what might happen to Mr. Beadle when Dr. George was not given the data. That was what the Committee dealt with and that was not what the Hawke Report dealt with.” (Para 21)

In Kadoke this court noted that the duty of disclosure is based upon the duty to act fairly resting upon everyone discharging a statutory mandate and accordingly the discretion not to disclose must be exercised sparingly. Nevertheless, there are times when the discretion may be exercised by the Board in the interests of a patient or a person vitally concerned. In particular, the Kadoke court recognized the necessity in some circumstances to redact the names of experts

where disclosure might impair the Board's ability to obtain opinions from them in the future. (Para 26)

The final issue is the adequacy of the Committee's investigation overall. Several points were put forward. Counsel for Dr. Botros submitted that the Committee should have considered the three complaints individually, but instead used the evidence from each in the other cases. It appeared however, that no request was made of the Committee at the time to separate the cases. Reliance was placed upon the decision of this court in Moreau in which the majority quashed the decision of the Board because it had based its decision on material not before the Committee, including two other complaints about the member. That is very different from the Committee hearing three cases together and relying on the evidence as a whole, which might have happened here. However, in the present case, the Board stated in its reasons that the Committee did not rely on the evidence in the other two cases in making its Beadle decision. Either way, this is not a case where the Board decided the reasonableness of the Committee's decision based on material never before the Committee. In all the circumstances, I would not give effect to this submission. ” (Para 35)

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