Registrar authorized to prepare a notice of hearing with 'the details of the charges'
The NS Court of Appeal has upheld the authority of the College of Physicians and Surgeons of Nova Scotia’s registrar to alter the wording of the charges in a medical malpractice case.
In Moodley v. College of Physicians and Surgeons of Nova Scotia (Hearing Committee), 2023 NSCA 70, Dr. Manivasan Moodley is an obstetrician and gynecologist in Sydney, Cape Breton. Three patients filed a complaint of professional misconduct against Dr. Moodley. The patients filed the complaints with the College of Physicians and Surgeons of Nova Scotia, which triggered Nova Scotia’s amended Medical Act and Medical Practitioner Regulations.
The College’s investigation committee sent the three matters to a hearing before a hearing committee. The Medical Act authorizes the College’s registrar to issue a notice of hearing that states the details of the charges and the date of the hearing. The charges listed in Dr. Moodley’s “Notice of Hearing” revised some wording from the descriptions of the matters in the investigation committee’s decisions. The notice of hearing also consolidated the three matters into one hearing before a single hearing committee.
Dr. Moodley objected to the changed wording. The hearing committee dismissed his objections. Dr. Moodley raised the matter to the NS Court of Appeal, arguing that the hearing committee made an error in accepting the altered wording of the charges.
The court noted that the charges in the notice of hearing reorganized, recategorized, and altered the wording of the matters referred to by the decisions of the investigation committees.
The medical act and regulation authorize the registrar to prepare a notice of hearing that contains “the details of the charges.” The court pointed out that the primary issue was when, if at all, the registrar drafted a “charge” that did not replicate the wording of a “matter” referred to by the investigation committee.
Dr. Moodley’s counsel argued that any meaningful rewording, beyond “tinkering”, exceeded the registrar’s jurisdiction.
The court noted that to commit a matter for hearing, the Medical Act engages the efforts and expertise of the investigation committee. The registrar may not “charge” a new “matter” to accompany the matters that the investigation committee sent to a hearing.
However, the court found that the registrar may exercise the discretion to marshal the process fairly and effectively. For instance, when the investigation committee’s description of a matter is factually imprecise or disassociated from an identified professional standard. Revised wording in the charge would enhance the fairness and effectiveness of the hearing.
The court explained that the legislation directs the registrar to draft formal charges. This directive implies that the registrar may reword the investigation committee’s description of the “matter” to satisfy principles of natural justice. The court said that when the investigation committee’s description of the matter is insufficiently precise to give fair notice, the registrar may revise the charge to cite a recognized standard and notify the medical practitioner of the facts the College alleges offend the standard.
The court found that the revised charges, in this case, reproduced the substance of the matters referred by the investigation committee. The revised charges reorganized and recategorized some of those matters or identified the governing standard but added no new “matter” of substance.
However, the court noted that the notice of hearing charged Dr. Moodley with “[p]erforming an episiotomy contrary to the expressed wish of the patient”. The court found that the investigation committee’s list of “matters” does not cite this infraction. Instead, it said that Dr. Moodley performed an “unwarranted episiotomy” on one of the patients. In the revised notice of hearing, the registrar has replaced “unwarranted” with “performing an episiotomy contrary to the expressed wishes of the patient”.
Nonetheless, the court accepted the College’s reason for the changed wording. The court found that a charge that a procedure was “unwarranted” is unclear. For instance, it might involve alleged negligence in a diagnostic assessment and trigger the need for expert evidence. It might also mean something else for which expert evidence is unnecessary. The court pointed out that “unwarranted” is a question-begging adjective without particulars. The court said that the wording in the revised notice of hearing notifies Dr. Moodley of the specific case he must meet.
The court found that the registrar had the necessarily implied authority to replace “unwarranted” with “[p]erforming an episiotomy contrary to the expressed wishes of the patient.”
Accordingly, the court ruled that the hearing committee did not commit an error in law by dismissing Dr. Moodley’s challenge to the reworded charges in the revised notice of hearing. Ultimately, the court rejected the appeal.
