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HEALTH CARE PROFESSIONALS - Discipline - Expert evidence - Professional misconduct - Penalties

Monday, August 30, 2021 @ 9:23 AM  

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Appeal by a dentist from the decision of an Appeal Panel upholding findings of unprofessional conduct against the appellant. The appellant, a pediatric dentist, provided dental treatment to a 2-year-old child who required restorative treatment. The mother refused to consent to general anesthesia although recommended by the appellant. Two dental assistants strapped the child to a papoose board, a passive immobilization device and applied nitrous oxide gas to him. As the dental assistant opened the child’s mouth, he began to thrash, fight and scream and came loose from the papoose board. One of the dental assistants lay on top of the child to restrain him and held his head. In an agreed statement of facts, the appellant admitted he committed unprofessional conduct by failing to obtain the mother’s informed consent to the use of restraint and to continue the treatment or restraint in light of the child’s severe emotional distress and by not being present when his dental assistants were administering oral sedation and nitrous oxide gas to the child and immobilizing the child on the papoose board. The Complaints Director engaged Graham, a registered specialist in pediatric dentistry, to provide an opinion about the appellant’s treatment and care of the child. The Hearing Tribunal accepted the Agreed Statement of Facts and Admission of Unprofessional Conduct. They reviewed the allegations against the appellant, the admissions made by him, and the expert report, and concluded that each of the admitted allegations was proven. The Hearing Tribunal imposed a six-month suspension, a $30,000 fine, a requirement to complete courses, and a requirement to pay the costs of the investigation and the hearing. The Appeal Panel found the six-month suspension excessive and reduced it to a three-month suspension.

HELD: Appeal dismissed. It was not unfair for the Hearing Tribunal to rely on Graham’s report. The report was submitted by agreement of the parties and was attached to the Agreed Statement of Facts. It was thus not necessary for the Hearing Tribunal to hear evidence regarding Graham’s qualifications before admitting his report as the parties already agreed on its admission. The Appeal Panel did not err in concluding that the decision of the Hearing Tribunal was reasonable and appropriate, based on the Agreed Statement of Facts, the Admission of Unprofessional Conduct, and the evidence before the Hearing Tribunal. The Hearing Tribunal and Appeal Panel did not err when they determined that the appellant breached the Standard of Practice. The Hearing Tribunal considered the appellant’s admission that his conduct was contrary to the Standard of Practice, and that his conduct demonstrated a lack of judgment in the provision of professional services and was unprofessional conduct. In determining an appropriate sanction, both the Hearing Tribunal and the Appeal Panel adverted to relevant factors, including the seriousness of the conduct, the age of the patient, and the fact that the appellant was a pediatric specialist. Deference was owed to professional disciplinary bodies on the fitness of sanctions and the fact findings underpinning them. No unfairness resulted from Graham and the Hearing Tribunal referring to and relying on the Pediatric Guideline to inform the applicable standard of practice for the use of restraint in pediatric patients. The Hearing Tribunal did not solely rely on the Guideline when assessing whether the appellant met the requisite standard of practice in this case.

Byun v. Alberta Dental Assn. and College, [2021] A.J. No. 1019, Alberta Court of Appeal, F.L. Schutz, M.G. Crighton and J. Strekaf JJ.A., July 28, 2021. Digest No. TLD-August302021001