Court reaffirms the public nature of physician discipline

Self-regulation demands public punishment, court says

Written by Jered Stuffco on November 19, 2013 for The Medical Post


Rebuking someone in secret is really just advice, and not a rebuke at all.

That was the message in October from the Alberta Court of Appeal as it reaffirmed the authority of the College of Physicians and Surgeons of Alberta to publicly release information about physician discipline.
The court’s decision arose from a legal challenge from Calgary otolaryngologist Dr. Kristina Zakhary, who challenged the CPSA’s practice of releasing discipline information to the public. The legal case dates back to Jan. 31, 2012, when Dr. Zakhary faced a reprimand and was ordered to pay hearing costs of $6,480.41.
According to the CPSA, Dr. Zakhary had failed “to respond to repeated requests from the college for information related to a complaint investigation.”
As court documents stated, Dr. Zakhary “agreed that her lack of response was unprofessional conduct” and in a joint submission to the CPSA, she agreed her penalty should be a “reprimand.”
But soon after the CPSA published some of the details about her case, Dr. Zakhary applied for a judicial review to block the CPSA from publicizing her case on its website and in its newsletter. And when the court dismissed her review, Dr. Zakhary took the case to the Alberta Court of Appeal.
A rebuke administered secretly is really just advice. —Alberta Court of Appeal
In essence, Dr. Zakhary’s case centred on the wording of the Health Professions Act, court documents said.
In short, Dr. Zakhary said she should be exempt from a public reprimand because she wasn’t subject to a suspension or a ban, and there were no conditions placed on her practice. But the appeal court upheld the CPSA’s authority to publish in the name of transparency, and the judges stated that a secret reprimand is “close to an oxymoron.”
According to the appeal court: “The connotation is publicity. A rebuke administered secretly is really just advice, and no punishment or penalty at all.”
The court stressed openness in such matters is key for the public, given the self-monitoring setup of the profession.
“The aim of professional licensing and regulatory legislation is to let the public pick a doctor, lawyer, accountant, etc., without having to fear an imposter, quack, fake, crook, incompetent, predator, unco-operative person or persistent non-performer.”
The court released its decision on Oct. 3, and the CPSA released a summary of the discipline case three weeks later on Oct. 24, along with an explanation of the delay.
A CPSA spokesperson could not reveal details of the initial complaint. Dr. Zakhary did not respond to repeated requests for comment.


http://www.albertacourts.ab.ca/jdb_new/public/ca/2003-NewTemplate/ca/Civil/2013/2013abca0336.pdf

    http://www.cpsa.ab.ca/libraries/pro_complaints_disc/014186 000016117020-MR.pdf?sfvrsn=4