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Significant Consequences Mean Significant Procedural Rights: Alberta Court of Appeal Provides Guidance on Procedural Fairness in Incapacity Assessments
Professional Regulatory Alert

In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the Alberta Veterinary Medical Association (“ABVMA”) failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment. In the decision, the Court provided some important guidance on procedural rights in incapacity assessments, and regulators should take note.

The ABVMA received complaints which led it to believe that one of its members, Dr. Irwin, may be incapacitated. Under the Veterinary Profession Act, “incapacitated” means “suffering from a physical, mental or emotional condition or disorder or addiction” that impairs the member’s ability to practice in a safe and competent manner.

On the recommendation of the Complaints Director, the ABVMA Practice Review Board ordered that Dr. Irwin be referred for a physical and mental examination, and suspended Dr. Irwin until the Board determined that he was no longer incapacitated. Dr. Irwin cooperated with the examinations, and thereafter the Practice Review Board ordered him to attend a residential treatment facility within 60 days. It also confirmed Dr. Irwin’s suspension from practice. An appeal to the Council of the ABVMA affirmed the Board’s decision.

Dr. Irwin challenged this decision on several grounds, part of which was whether his right to procedural fairness before the Practice Review Board was breached.

The Court found that Dr. Irwin was entitled to a high degree of procedural fairness, as the impact of the decision (an immediate and indefinite suspension) was significant. Prior to being compelled to submit to psychiatric testing, Dr. Irwin was given no disclosure of any documents, witness statements, or notice of the nature of his alleged incapacitation. He had no opportunity to respond before the Practice Review Board made its decision. Given the seriousness of the allegations and consequences, such procedural safeguards were required.

The Court did emphasize that the duty of procedural fairness will not always mandate notice, disclosure and the opportunity to respond before a suspension for incapacity may be imposed – there may be circumstances where there is an obvious urgency and a requirement to protect the public interest. Context is key.

Issues surrounding incapacity have become increasingly important, and many self­-governing professions have significant statutory discretion in determining how incapacity issues are addressed. The Irwin decision is a rare example of a case concerning incapacity issues.

The Veterinary Profession Act was modelled after the Health Professions Act and is similar in nature. As such, it is likely that the Court’s analysis would apply not only to veterinary regulators, but to all regulators who operate under the Health Professions Act.