Complaints director did not consider applicable case law, least restrictive measures principle: case
The Court of Queen’s Bench of Alberta has directed the College of Physicians and Surgeons of Alberta to reconsider whether a pediatrician charged with child pornography offences can be allowed to resume practising, subject to certain practice conditions.
In Al-Naami v College of Physicians and Surgeons of Alberta, 2021 ABQB 549, a pediatrician who managed a clinic in Edmonton was charged in 2019 with two child pornography offences, then was released on a recognizance. The College of Physicians and Surgeons of Alberta opened a complaint under Alberta’s Health Professions Act. Three days later, the doctor gave an undertaking to withdraw from practice. The college’s complaints director stayed the investigation pending resolution of the criminal charges.
In 2020, the doctor sent a draft alternative undertaking, indicating that he wanted to return to practice under conditions. He later filed an application for judicial review of the director’s decisions refusing to accept his revocation of the undertaking, refusing to permit him to return to practice on conditions and requiring him to give the college his consent to communicate with the Crown prosecutor on Crown disclosure for the charges.
The Alberta Court of Queen’s Bench ordered the college to reconsider whether, on the available information, the undertaking may be modified to allow the doctor to return to practice, subject to certain conditions aiming to protect young patients.
The court held that the complaints director’s reconsideration of the undertaking was unreasonable and should be quashed because the director failed to appropriately consider the applicable case law and the possibility of permitting the doctor to return to practice or of imposing less restrictive measures.
The director’s reasons did not address the effectiveness of the doctor’s suggested conditions, did not identify the standards for such conditions and did not state the facts which would justify keeping the doctor from his practice, the court found.
On the issue of whether the doctor could unilaterally rescind his undertaking, the court answered in the negative, given that the language did not allow for unilateral revocation and given that undertakings need to be stable to be useful to the interim resolutions of disputes. However, doctors can request reconsideration of the terms of an undertaking, and the college needs to reassess whether such terms are still proper.
Lastly, the court held that the director unreasonably insisted that the doctor provide his consent to the production of Crown disclosure information to the college. Pursuing such consent would lead to major distortions of the process, said the court.
The court emphasized that it was not allowing the doctor to resume his practice, since the issue of appropriate practice conditions was beyond the scope of the judicial review application and since there were no submissions or evidence comprehensively addressing this issue.
