Legal and regulatory proceedings
Natural justice - an obligation for "fair play"
An article for physicians by CMPA General Counsel
Originally published Winter 1994 / Revised April 2008
When involved in administrative proceedings (e.g. College proceedings, hospital proceedngs etc.), an individual is entitled to fairness. The principles of "natural justice" are explained, and a hospital proceeding is used as a case example.
Of interest to all physicians
A physician was invited to attend a meeting with the Chief of Staff, the Chief of Surgery and the Administrator of his hospital. The letter indicated that the meeting could affect his privileges. Upon attending the meeting the physician was told that a critical audit report had been obtained touching on some of his cases. He was invited to resign immediately or his privileges would be suspended. Understandably upset, the physician refused to resign.
In fairly quick succession the Executive Committee, which included the Chief of Staff and the Administrator, decided to formally recommend to the Board that the surgeon's privileges be revoked. Written reasons for this decision were promised to the physician. The Medical Advisory Committee met to hear the Chief of Staff summarize the conclusions of the audit report, all in the absence of the physician. A subsequent telephone poll of individual members resulted in the Medical Advisory Committee supporting the recommendations of the Executive Committee.
The physician and his legal counsel were invited to attend a meeting of the Board of the hospital. A copy of the audit report was made available prior to the meeting although the written reasons of the Executive Committee never materialized. At the meeting the physician attempted to discuss a number of charts identified in the audit report. He was interrupted by a member of the Board who made it clear that this was a waste of time as the Board was not in a position to understand the medical points he was trying to make. After excusing the physician and his legal counsel the Board then heard from the Chief of Surgery who discussed the audit report and other background information. The Board voted in favour of the revocation of the physician's privileges, with all members of the Executive Committee who had previously taken part in the process voting in favour of the resolution.
Upon receiving notice from the Board that his privileges had been revoked, the physician immediately brought an application for judicial review. It was argued that there had been a denial of natural justice in the procedure and methods used by the hospital in revoking his privileges.
Principles of natural justice
The principles of natural justice and fair process can be reduced to the following central issue:
Did the decision-making body, on the facts of the particular case, act fairly to the person whose conduct or rights were under consideration?
The common law requires tribunals to provide a certain minimum of procedural fairness, which includes the right to be heard, to have one's case decided by persons free of bias, and to receive reasons for decisions made.
The Right to be Heard
The right to be heard necessarily encompasses the right of a party to receive notice of the allegations against him/her. The notice must be sufficiently precise and timely to ensure that the right to present a response is meaningful.
The right to an opportunity to be heard does not necessarily imply that there must be a formal hearing. In some instances the ability to make written submissions and rebuttals has been considered sufficient. More often, however, the individual is given the opportunity to attend with legal counsel before the tribunal to present his or her arguments.
Adjudicators Free from Bias
It is not simply sufficient that members of the decision-making body be free from bias. It is also important that there be no reasonable apprehension that bias might exist.
The appearance of bias might arise, for example, where some of the same people participate in each phase of the investigation, hearing and decision-making process. It is important to note however that the law does not go so far as to say every type of prior connection between the decision-maker and the parties will justify a finding of reasonable apprehension of bias. Indeed, decision-makers are often chosen expressly because of their expertise and experience with respect to the matters upon which they will be called to adjudicate.
The right to a fair hearing has been expanded to include the right to receive reasons for the decision resulting from the hearing. Such reasons must be sufficiently detailed and adequate so as to enable the individual concerned to not only know the facts that have been relied upon but also the reasoning which underlies the decision which has been reached.
Application for judicial review
The duty of the Court on a judicial review application is to determine whether the suspension or revocation of the physician's privileges was made fairly and in accordance with the rules of natural justice.
In the case which has been outlined the Court found that the physician had not been treated fairly for the following reasons:
- The physician was not given the opportunity to be heard or even attend before the Medical Advisory Committee.
- The Medical Advisory Committee had limited and selective information on which to base a recommendation.
- The members of the Medical Advisory Committee did not have the benefit of discussion with each other when asked to vote.
- Members of the Executive Committee and the Medical Advisory Committee who were involved in the initial investigation should not have participated in the decision-making process of the Board.
- The procedure before the hospital Board was not a proper hearing. It was one-sided and arbitrary in nature.
The application for judicial review was therefore granted. The revocation of the physician's privileges was quashed and his privileges were ordered to be reinstated.