Proposed penalty of doctor admitting misconduct meets high bar for rejection: discipline committee

The College of Physicians and Surgeons of Ontario’s discipline committee has rejected a proposed penalty for a doctor who committed professional misconduct on the basis that the proposal did not address the failure to meet the standard of practice.

In College of Physicians and Surgeons of Ontario v. Young, 2021 ONCPSD 12, an anesthesiologist practising in a Toronto hospital received disciplinary action relating to infection control lapses resulting in the transmission of Hepatitis C to patients in an endoscopy clinic, for which he was suspended for three months and subjected to an assessment following his return to practice, to check on his sterile technique, preoperative process and record-keeping.

The assessor noticed that, for certain syringes that the doctor used, there was already a small amount of clear liquid inside, even before the doctor drew up propofol into the syringe. The doctor appeared surprised when the assessor pointed this out. The assessor checked the operating room drawer and found numerous other syringes with the same issue.

The doctor later told the assessor that he had secretly loaded the syringes with remifentanil to deceive the assessor and to avoid possible criticism of his preparation process. The assessor concluded that the doctor fell short of the standard of practice by engaging in the purposeful concealment, by leaving the syringes in an unsterile drawer and by failing to document the administration of remifentanil, which put the patients at risk.

During the hearing before the discipline committee of the College of Physicians and Surgeons of Ontario, the doctor admitted to committing professional misconduct by engaging in an act relevant to medical practice that, considering all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional and by failing to maintain the standard of practice of the profession. The committee accepted this admission of professional misconduct pursuant to paragraphs 1(1)33 and 1(1)2 of Ontario Regulation 856/93, made under the Medicine Act, 1991.

The parties’ joint submission on penalty and proposed order provided that the doctor would be suspended for three months, would appear before the panel for a reprimand and would pay costs of $6,000. The committee said that this proposed penalty failed to sufficiently address the issues of honesty, ethics and falling short of the standard of practice, so the parties added that the doctor should also attend an ethics and professionalism course.

The committee again rejected this proposal as unsatisfactory because it would suggest to the public the breakdown of the proper functioning of the professional discipline system, because it still did not address the doctor’s failure to meet the required standard and because the penalty would not satisfy the need for the doctor to remediate his clinical deficiencies before returning to practice. According to the committee, the proposed penalty was so inadequate that it met the high threshold for rejection provided in R. v. Anthony‑Cook, 2016 SCC 43 (CanLII), [2016] 2 SCR 204.

Thus, the committee additionally ordered a reassessment, which would include an on-site observation of the doctor’s sterility technique and patient record documentation by a college-appointed anaesthesia expert, within three months from the doctor’s return to practice.

The committee’s panel called the doctor’s misconduct deplorable. “By intentionally exposing patients to the risk of harm or injury, he betrayed the trust of his patients, he betrayed the trust of his colleagues, he betrayed the trust of the public and he betrayed the trust of the profession,” the panel wrote in the decision.