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HEALTH CARE PROFESSIONALS - Discipline - Identifying objectionable conduct

Tuesday, October 12, 2021 @ 5:54 AM  

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Appeal by a pharmacist from a finding of professional misconduct made against him by the Alberta College of Pharmacy and the sanctions imposed. The complaints mainly related to the appellant’s alleged misuse of the Alberta Health Services electronic database. One allegation arose out of the appellant’s attempt, after the investigation was started, to have SW and BD, whose records were accessed, confirm that they were in fact the appellant’s patients at the time he accessed their medical records. This misconduct was characterized as a failure to co-operate. When confronted with his misconduct, the appellant first attempted to rationalize what he had done and claim consent or authority when he had none. He tried to get some of the patients involved to acknowledge that he had a legitimate basis for accessing their medical records and insisted on a hearing. He gave conflicting evidence at the hearing and ended up admitting many of the allegations. The appellant also attempted to represent himself at the hearing. During the middle of the hearing, the Complaints Director identified further acts of professional misconduct and applied to add them to the Notice of Hearing. They were characterized as further particulars of the existing complaint of a failure to co-operate and to be honest during the investigation and related to the appellant’s conduct at the hearing in mounting his defence. The Hearing Tribunal’s perception of the seriousness of the appellant’s conduct in mounting his defence directly led to a more severe sanction being imposed on the original charges. A three-year suspension was imposed and a further $10,000 fine for the allegations of failure to co-operate. The appellant voluntarily withdrew from practice in 2016 and allowed his registration to lapse in 2017. The appellant challenged the decision to amend the notice of the hearing by adding the additional allegations in the middle of the hearing and argued that the subject of these allegations did not disclose professional misconduct.

HELD: Appeal allowed. None of the allegations relating to how the defence was conducted should have been the subject of separate counts of misconduct, particularly counts to be dealt with at the same hearing. While the added allegations might have been further instances of non-co-operation, they were different in character from the particulars originally given. Turning the rejection of the appellant’s defence into further disciplinary charges in the same hearing was inconsistent with Canadian concepts of fairness and due process. The duty to co-operate with an investigation did not extend to the conduct of the defence at the hearing. The Tribunal’s finding relating to the new allegations of the asserted involvement of BM in accessing the database and the appellant’s failure to tell the investigator about the involvement of BM were equivocal. If BM was involved, then the appellant’s failure to reveal his involvement to the investigator amounted to a failure to disclose potentially explanatory circumstances. It was unreasonable for the Hearing Tribunal to make a finding of misconduct without making a definitive finding of whether BM was in fact involved. The sanctions imposed were unreasonably punitive and disproportionate to the appellant’s misconduct and overemphasized denunciation and deterrence. The specific sanction imposed for the new allegations were set aside, but the Tribunal’s view of the seriousness of those new allegations also influenced the severity of the global sanction. The three-year suspension imposed was excessive in its length and failed to observe that the appellant had already been excluded from the profession for many years. Having regard to the fines imposed by the Hearing Tribunal, and the collateral consequence of the proceedings, the suspension should have been in the order of six months, and it had effectively been served. The fine for failure to maintain records was reduced to $100. The fine with respect to soliciting a letter from SW was reduced to $1,000. The requirement for direct supervision for 500 hours was deleted.

Alsaadi v. Alberta College of Pharmacy, [2021] A.J. No. 1245, Alberta Court of Appeal, J. Watson, F.F. Slatter and R. Khullar JJ.A., September 17, 2021. Digest No. TLD-October112021001