Alberta Courts Enforce Fair Access to the Professions: Farhat v. College of Physicians and Surgeons of Alberta
Professional Regulatory Alert
In Farhat v. College of Physicians and Surgeons of Alberta, 2014 ABQB 731, the Court of Queen’s Bench highlighted the importance of careful documentation to justify registration decisions and procedural fairness in the registration process. These concepts help to ensure that applicants have fair access to the regulated professions. Courts will enforce these concepts and direct full re-assessments of applicants where they have not been fully satisfied.
Dr. Farhat, an internationally trained pediatric radiologist, was recruited to work in Calgary. He was registered on the College’s courtesy register during a fellowship. Thereafter, he submitted to a competency assessment to determine his eligibility for the College’s general register. The College’s Assessment and Competency Enhancement Department was responsible for the assessment. It engaged Dr. Bhargava, a pediatric radiologist in Edmonton, to conduct the assessment along with a team of several other radiologists.
After approximately one month Dr. Bhargava and the team of assessors determined that Dr. Farhat was not competent. Dr. Bhargava documented this in a decision letter. The College then advised Dr. Farhat that based on Dr. Bhargava’s decision letter he would be denied the ability to practice independently. A copy of Dr. Bhargava’s decision letter was provided. Dr. Farhat requested disclosure of the records used in the assessment pursuant to section 30(4) of the Health Professions Act. Section 30(4) provides that an applicant may review “the documents used… and created… when considering the applicant’s application.” Dr. Farhat’s request was denied. Dr. Bhargava responded that Dr. Farhat’s substandard reports had been altered by the supervising radiologists and Dr. Farhat’s original work was not preserved. Further, Dr. Bhargava refused to release the tests taken by Dr. Farhat or even the test scores in order to preserve the validity of the tests for future use.
Application for Review of Registration Decision
Dr. Farhat applied to the Review Panel of the Appeals Committee of the College’s Council for a review of the decision under s. 31 of the Health Professions Act. He raised concerns with the lack of disclosure as well as the short duration of the assessment.
The Review Panel dismissed the request for review. It accepted Dr. Bhargava’s response to the disclosure request and his reasons for not providing the information and found that Dr. Bhargava’s decision letter was sufficient disclosure. The Review Panel also held that the team approach to the assessment increased its reliability.
The College had a manual for the assessment process. The manual provided that the assessment should take three months, although Dr. Farhat had agreed in writing that the assessment could be concluded earlier once he had clearly demonstrated or failed to demonstrate his competence. The manual also provided for the assessors and the applicant to meet and review clinical objectives at the beginning of the assessment and for an interim evaluation report and a final evaluation report to be reviewed with the applicant. None of these steps were followed. The College’s manual was not provided to Dr. Farhat, nor was it before the Review Panel when it made its decision.
Application for Judicial Review
Dr. Farhat applied to the Court for judicial review of the Review Panel’s decision. The Court confirmed that the deferential “reasonableness” standard of review applies when Courts review registration decisions of a College’s Council under sections 31 and 32 of the Health Professions Act. The Court emphasized the relative expertise of the Council’s Review Panel and that the issues involved the interpretation of the Health Professions Act, which was the Review Panel’s governing statute. The Court also recognized that issues of procedural fairness will be assessed to determine whether the duty of fairness was met or not.
The Court found that s. 30(4) of the Health Professions Act creates a statutory disclosure obligation which entitles applicants to the evidentiary foundation for registration decisions. This section is for the benefit of applicants and is broad enough to include not only records used or created by the College’s Registrar, Registration Committee or Competence Committee, but also records used or created by any external reviewer engaged to assist with their decision. Despite his statutory entitlement upon request, Dr. Farhat was not given any of the documents used or created by Dr. Bhargava and the assessment team to justify their conclusions.
The Court also noted that the Review Panel relied on the experience and qualifications of the assessment team as support for finding that the conclusions reached were reliable. The Court said this was akin to accepting a conclusory opinion without requiring its factual underpinnings.
The Court held that the Review Panel’s decision was unreasonable in light of the failure to meet the statutory duty of disclosure under section 30(4) and the conclusion that Dr. Bhargava’s decision letter provided sufficient disclosure. The Review Panel’s decision did not demonstrate the necessary justification, transparency and intelligibility and the outcome did not fall within the range of possible acceptable outcomes that are defensible in respect of the facts and the law.
The Court went on to assess whether there was a breach of procedural fairness. After considering the duty of fairness and the statutory duty of disclosure in section 30(4), the Court held that the degree of fairness required in the registration process is relatively high.
The condensed, one month assessment did not itself deprive Dr. Farhat of procedural fairness since the College and the Review Panel had control over their own process. It did underscore the need to provide Dr. Farhat with sufficient detail and supporting documentation to allow him to fully address his concerns before the Review Panel. For example, Dr. Bhargava’s decision letter merely summarized the assessment team’s opinion. It did not allow Dr. Farhat to fully understand the case against him. The Court also held that the assessment team failed to follow the College’s procedures outlined in the manual.
The Review Panel’s decision was quashed. A new assessment to be overseen by a new assessor was ordered since the documentation supporting the competency deficiencies noted in Dr. Bhargava’s decision letter were not preserved.
Tips for Regulators:
- Ensure that individuals involved in registration decisions and reviews fully understand the requirement to justify their decisions with reasons. Consider providing these individuals with access to legal advice.
- Consider documenting procedures for registration matters and make the information accessible to all of the participants in the process and ensure compliance.
- Ensure any documents used or created in the assessment of registration applications are preserved as part of the applicant’s registration file.
- Decision-makers in the registration process should not rely on a conclusion or opinion about an applicant without requiring the factual underpinnings or evidentiary foundation. These are important so that decision-makers can prepare reasons for any decision.
Field Law’s Professional Regulatory Group would be happy to assist with any questions about fairness and statutory duties in the registration process.