Case summary: Judicial review of dismissal of complaint against two doctors denied

  • July 13, 2017
  • Jackson C. Doyle

Tran v. College of Physicians and Surgeons of Alberta, Complaint Review Committee, 2017 ABQB 337

The applicant, Ms. Tran, sought judicial review of a decision of the Complaint Review Committee of the College of Physicians and Surgeons of Alberta that dismissed the complaint against two physicians involved in the care of her mother.

The applicant was appointed guardian of her mother under a guardianship order allowing her to consent to any health care in the best interest of her mother. The mother was admitted to hospital and had a Do Not Resuscitate code placed on her file. Approximately one week later, the mother was pronounced dead. The applicant complained to the College that one physician failed to manage the mother’s feeding tube and also that a second physician had improperly placed a DNR on her mother.

The College’s Complaints Director observed that patient care was adequate, that the DNR was medically and ethically compassionate, and that there was insufficient evidence to support an allegation of unprofessional conduct. As such, the complaint was dismissed.

The College Committee subsequently upheld the dismissal. The College Committee concluded that the management of the DNR was appropriate and that there was insufficient evidence to support unprofessional conduct.  It also found that there was an inconsistency in the medical records and the physicians’ response to the complaint as the wrong box was checked on the DNR. Despite this observation, the College Committee found the Director’s decision reasonable and upheld the dismissal of the complaint.

The preliminary issue of standing was addressed given that the Alberta Health Professions Act does not provide a further right to appeal. The court concluded that a complainant has the same interest as any member of the public and limited the applicant’s standing to issues of procedural fairness, preventing the applicant from reviewing the decision on reasonableness grounds. Accordingly, the duty of fairness was “at the low end of the spectrum.”

The court observed that a significant number of the applicant’s submissions related to the adequacy of the College’s investigation while the others related to the lack of involvement from the applicant and the apparent summary dismissal.

The court held that the record before it demonstrated that the underlying complaint was viewed seriously and received an adequate investigation. Moreover, there was no requirement that this complaint should be referred to a full hearing. In the result, the application for judicial review was dismissed.

This case was digested by Jackson C. Doyle of Harper Grey LLP