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Professionals - Protective Orders. Sharma v. College of Physicians and Surgeons of Ontario
In Sharma v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considers the 'least drastic means' principle when assessing an interim protective order:Issue 2: Is the Order overly broad?
[47] The parties agree that the ICRC must impose the least restrictive order necessary to protect the public. The order must only address the risk of harm. This principle of restraint recognizes that such interim orders are made when allegations remain unproven: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 at paras. 7 and 24; Morzaria v College of Physicians and Surgeons of Ontario, 2017 ONSC 1940 at para. 46. It is also well-accepted that an expert tribunal such as the ICRC is entitled to deference in the choice of restrictions: Morzaria at para. 26.
[48] Dr. Sharma submits that the Order effectively prohibits him from practicing as an anesthesiologist, rather than tailoring the terms to address concerns about attentiveness and charting. Although we were informed that Dr. Sharma has more recently, in August 2023, proposed to the College that he have full-time clinical supervision by a nurse and that a physician hold regular meetings with him and conduct chart review, that was not before the ICRC in the Decisions under review and we therefore do not address that proposal here.
[49] In its Decision of May 9, 2023, the ICRC stated that it was “aware that any order imposed should not exceed what is necessary to protect patients from harm” in concluding that the terms of the Order were necessary. In its Reconsideration Decision of June 23, 2023, the ICRC repeated what it said in the first Decision, and then addressed Dr. Sharma’s proposal that he be permitted to limit his practice to OHPs and to “work with a supervisor who will review a selection of charts on a weekly basis.” Dr. Sharma submitted, as the Reconsideration Decision sets out, that patients at OHPs “are typically lower risk” and that “this would be a better environment for him partially because almost all OHPs maintain paper charting.”
[50] The ICRC explained why it rejected these proposals, as follows:OHP Practice Setting
The Respondent's proposal to only practice in OHPs is not reassuring to the Committee. By the very nature of its setting, the OHPs have fewer safeguards than there are in a hospital setting (i.e., OHP practices are isolated, with less assistance available and no colleagues around to notice any problems or lapses, etc.).
Paper Charting
The Committee confirms that contrary to the Respondent's suggestions that almost all OHPs have a paper charting system, many OHPs have an EMR system in place. The Committee is puzzled as to why paper charting would provide comfort to the Committee when the EMR system allows for an audit trail that would discover any alterations made to the charts, as in the current case. [51] The ICRC also went on to explain the need for clinical supervision “at all times” in the following passage of the Reconsideration Decision:Given the Committee's ongoing concern that the charts may have been inappropriately altered, the Respondent's proposal for the supervisor to review a selection of charts is not sufficient to ensure patient safety. As such, the Committee confirms that clinical supervision at all times remains the least restrictive measure required in this case. [52] These reasons are intelligible, transparent and provide justification for the ICRC’s decision. The conclusions are reasonable, consistent with the objectives of the statute and the Code and are entitled to deference.
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