The right to be treated fairly can impact you during an administrative proceeding
The right to a fair process is critical if you are facing administrative proceedings such as regulatory authority (College) or hospital proceedings. In Canada, the legal right to be treated fairly is known as natural justice or procedural fairness. This may sound abstract, but the principles of natural justice can have a huge impact on how proceedings against you unfold, as illustrated by the following scenario based on a compilation of CMPA cases.
Natural justice scenario: One physician’s experience
A surgeon meets with his hospital's chief of staff, chief of surgery, and administrator. He is informed that an audit report was critical of the care in some of his cases. He is told to resign immediately, or have his privileges suspended or terminated. The surgeon refuses to resign.
The executive committee, which includes the chief of staff and the administrator, recommends to the hospital board that the surgeon's privileges be terminated. Written reasons for this decision are promised to the surgeon.
The medical advisory committee hears the chief of staff summarize the conclusions of the audit report; the physician is absent. Members are then polled individually by telephone. The committee votes in favour of supporting the executive committee’s recommendation to terminate the surgeon’s privileges.
The surgeon and his legal counsel are invited to a hospital board meeting. The audit report is available before the meeting, but the written reasons from the executive committee are never provided. The surgeon tries to discuss charts identified in the audit report but is stopped. He and his legal counsel are excused from the meeting. The board hears from the chief of surgery who discusses the audit report and other background information. The board votes in favour of terminating the surgeon’s privileges. The chief of staff and the administrator, who had previously taken part in the process as members of the executive committee and the medical advisory committee, vote in favour of the resolution.
The surgeon receives a notice from the board that his privileges are terminated. He applies to the courts for judicial review of the hospital board’s decision on the basis that he was denied natural justice in the procedure followed by the hospital in terminating his privileges.
Natural justice and physician leaders
In the CMPA’s medico-legal cases concerning a hospital’s or health authority’s investigation and discipline of a physician, the fairness of the process is often an issue. As a physician leader, it is important to be aware of your organization’s bylaws, policies, and procedures for investigating and disciplining doctors. You may also play an important role in ensuring that bylaws, policies, and procedures are sound and applied appropriately.1
What are the principles of natural justice?
The principles of natural justice refer to the legal concept that administrative proceedings should be conducted in a manner that is fair to the involved parties. It applies to proceedings before administrative bodies such as hospital boards, Colleges, tribunals, commissions, or agencies. The principles of natural justice are concerned with the way decisions are reached by these administrative tribunals. While the extent of fairness varies with the nature of the proceedings, at minimum, affected parties should be given a fair opportunity to participate in the proceedings.
The scenario with the surgeon and the hospital board highlights three of the most important principles of natural justice: the right to be heard, to have your case decided by persons free of bias, and to receive reasons for decisions.
The right to be heard
The right to be heard means you have the right to be notified of allegations against you. The notice must be sufficiently precise and timely to ensure that you have the opportunity to present a response that is meaningful and informed by the facts.
The right 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 is considered sufficient. More often, however, you are given the opportunity to attend with legal counsel before the decision-making body to present your arguments, particularly where the consequences of the decision are serious, such as in the scenario with the physician and the hospital board.
The right to adjudicators free from bias
You have the right to have adjudicators or decision-making bodies who are free from bias. It is also important that there be no reasonable apprehension that bias might exist among the decision-makers.
Determining reasonable apprehension of bias
The Supreme Court of Canada defined the test for determining whether there is a reasonable apprehension of bias as whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge or decision-makers.2
The appearance of bias might arise when 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 precisely because they have expertise and experience with the matters on which they will be called to adjudicate.
The right to reasons for decisions
The right to a fair hearing includes the right to receive the reasons for the decision. Such reasons must be detailed and adequate so the individuals concerned know the facts that were relied on and the reasoning behind the decision.
Application for judicial review
In our example scenario, the physician brought an application before the court for a judicial review of the hospital board’s decision on the basis that the termination of his privileges was not made in accordance with the principles of natural justice.
The court in this scenario found that the physician was denied procedural fairness for the following reasons:
- The physician was not given the opportunity to be heard or appear before the medical advisory committee.
- The medical advisory committee had limited and selective information on which to base its recommendation.
- As the members of the medical advisory committee were polled individually by telephone, they did not have the benefit of discussion with each other before being asked to vote.
- The 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 hospital board.
- The procedure before the board was not a proper hearing—it was one-sided and arbitrary.
The application for judicial review was granted, the physician’s privileges were reinstated, and he was given a reasonable opportunity to correct the deficiencies found in the audit report.
The bottom line
In our example scenario, the outcome was in the physician’s favour. The principles of natural justice entitle individuals to a fair process, though they do not predict the final decision or outcome, or guarantee an outcome in favour of the physician. These principles ensure you will receive at least an appropriate level of procedural fairness.
Medical-legal handbook for physician leaders. 2nd ed. Ottawa (CA): The Canadian Medical Protective Association; 2017. Available from: https://www.cmpa-acpm.ca/en/advice-publications/handbooks/medico-legal-handbook-for-physician-leaders
Wewaykum Indian Band v Canada,  2 S.C.R. 259, at para. 66