Patient X v. College of Physicians and Surgeons of Nova Scotia

2015 NSCA 41
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The appellant, Patient X,filed a complaint against a physician, Dr. Y, with the College of Physicians and Surgeons. She alleged that he inappropriately touched her breast and made racially inappropriate comments about her “black” lung capacity as compared to “white” lungs.

The Investigation Committee dismissed the appellant’s complaint. The Committee’s written decision stated that there was insufficient evidence to suggest Dr. Y. was guilty of any professional misconduct, incompetence or unbecoming conduct.

The appellant sought judicial review of the Committee’s decision. The appellant argued that the decision to dismiss the complaint without a hearing was procedurally unfair. The appellant also argued that the written reasons given for the decision were insufficient, and that the decision was not within a range of reasonable outcomes.

The Supreme Court of Nova Scotia dismissed the appellant’s application for judicial review.The appellant appealed to the Court of Appeal.

The Court held that the judge did not err in finding that that Investigation Committee gave the appellant procedural fairness and sufficient reasons for its decision. The judge had found that the fact that the appellant’s allegations of sexual misconduct involved issues of credibility did not increase the level of procedural fairness owed to the appellant. In particular, the trial judge found that the nature of the issues did not give the appellant the right to cross-examination.

The Court held that the judge did not err in finding that the Committee’s reasons for dismissing the sexual misconduct complaint were sufficient. The judge stated that the reasons given could have been more thorough. However, the judge found that it was still clear from the reasons that the Committee had evaluated the evidence and concluded it did not prove that Dr. Y’s contact with the appellant’s breasts was sexually motivated. It followed from this conclusion that dismissing the complaint was within the range of reasonable outcomes.

The Court held that the judge did not err in concluding that the Committee did not have to consider the appellant’s mental health history in its decision. The appellant had been previously diagnosed with Post- Traumatic Stress Disorder (PTSD), but the evidence suggested that Dr. Y was unaware of this diagnosis. The Court stated that it was not part of the appellant’s formal complaint that Dr. Y should have conducted the examination differently because of her mental health history. It followed that the Committee did not err by not addressing the appellant’s PTSD in its reasons for dismissing the complaint.

Justice Hood first addressed the adequacy of the reasons with respect to the sexual misconduct complaint. She undertook an analysis which considered the position advanced by both Patient X and the College. She noted:

Indeed, although Patient X characterized the touching as "fondling", she does not appear to have described the extent of the contact in sufficient detail to distinguish it from appropriate incidental contact. According to the minutes of the meeting, Patient X said in her interview that she was "not sure how long Dr. [Y] was touching her breasts. s[sic]he was trying to think of other things ..." As such, the College submits that the Committee did not disbelieve Patient X's recollection of the events, just her interpretation of them.

While it could be argued that that is simply a credibility finding by another name, it is worth noting that in Devgan v. College of Physicians and Surgeons of Ontario…Justice Then said at para. 54 that: "[W]hile it is preferable to give reasons for rejecting the credibility of a witness, a failure to do so does not constitute reversible error".” (paras 73-74) 

“In her formal initial complaint to the College, Patient X clearly states that she felt Dr. Y did two things wrong. He inappropriately touched her breast, and secondly, he made racially inappropriate comments relating to her lung capacity. Although she said Dr. Y's negligence worsened her mental health, her PTSD in particular, Patient X does not suggest in her complaint that Dr. Y should have treated her differently because of the state of her mental health.” (para 76)

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