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Health professionals must exercise caution in legal proceedings

By Lonny Rosen & Elyse Sunshine

The decision of JK v. BJH 2016 CanLII 85163 (ON HPARB) reminds health professionals to be very careful when preparing affidavits for use in legal proceedings in which they have a personal interest. This means ensuring that they qualify their role, and make clear that they are not giving a professional opinion or advice.

ICRC decision:

A doctor’s sister was in a family law proceeding with her estranged husband. The doctor swore an affidavit in which he identified himself as a physician and stated that he observed the husband being verbally aggressive toward his sister in front of their child. The doctor also stated that he believed the husband had “an anger management problem that may be connected to poorly controlled diabetes.”

The husband made a complaint to the College of Physicians and Surgeons of Ontario (the College) complaining, among other things, that: the doctor used his status as a physician to influence the court; the statements in the affidavit were untruthful; and the doctor should not have disclosed the husband’s personal health information in the affidavit.

The College’s Inquiries, Complaints, and Reports Committee (ICRC) investigated the complaint and decided to provide “advice” to the doctor, rather than referring the complaint to the discipline committee. The ICRC found that, although it was not inappropriate for the doctor to swear an affidavit in his sister’s family law proceedings, he should have limited his statements to clear factual comments about his direct observations, and ought to have made it clear that he was not offering his opinion as a physician. The ICRC also questioned the doctor’s judgment in stating that the husband had an anger management problem and that this could be construed as a medical opinion. The ICRC found that it was not appropriate for the doctor to have included in the affidavit information about the husband’s medical condition.

Board review:

The husband requested that the Health Professions Appeal and Review Board review the decision. The Board affirmed the ICRC’s decision, having concluded that the decision fell within a range of possible, acceptable outcomes that were defensible in respect of the facts and the law. The Board found it was reasonable for the ICRC to have provided the above-noted advice to the doctor rather than referring the complaint to the discipline committee. The doctor’s conduct was in the nature of “an error in judgment” rather than “advertent misconduct.”

Takeaway:

Given the tone and content of the ICRC’s advice to the physician, the physician was fortunate not to have received a more serious disposition than advice, which is not published on the College’s public register. In light of this advice, it would be wise for all health professionals to be cautious when involved in legal proceedings in which they have a personal interest, and to ensure that they are clear about their role and that they are not providing a professional opinion unless engaged in that capacity.

Interestingly the Board noted that “this situation might not have arisen if there had been a clear College policy relating to activities by physicians in matters in which they have a personal interest.” The Board recommended that the College prepare such a policy.

We assist health professionals in all manner of college proceedings. Contact us if you are unsure of your situation or have any questions.

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