Canada: Publication Of Discipline Decisions A-Ok, Says Alberta's Top Court

Last Updated: October 5 2013
Article by Kathryn Oviatt

Zakhary v. College of Physicians and Surgeons of Alberta, 2013 ABCA 336

On October 3, 2013 the Alberta Court of Appeal upheld the decision of the College of Physicians and Surgeons of Alberta ("CPSA") to publish information about a discipline decision involving a doctor, and provided needed interpretation and insight into s. 119 of the Health Professions Act ("HPA").

In this case, Dr. Kristina Zakhary admitted to repeatedly failing to respond to a CPSA investigator and admitted that this constituted unprofessional conduct. She made a Joint Submission with the Complaints Director on penalty for a reprimand and payment of costs of the hearing. The CPSA's Hearing Tribunal accepted the Joint Submission on the penalty. No one appealed, and after the appeal period expired, the CPSA temporarily published the conviction and penalty.

Dr. Zakhary sought Judicial Review of the CPSA's decision to publish information about her professional discipline. The CPSA relied on s. 119(1)(f) of the HPA to justify publication:

"119(1) If under Part 2 or Part 4 a regulated member's practice permit is suspended or cancelled, or if conditions are imposed on a regulated member's practice permit or a direction is made under section 118(4), the registrar

...

(f) subject to the by-laws, may publish or distribute the information referred to in this subsection and information respecting any Order made by a Hearing Tribunal or counsel under Part 4."

Part 4 of the Act is the part dealing with professional conduct.

Dr. Zakhary argued that s. 119 only permitted the Registrar to publish the decision if the Hearing Tribunal issued a suspension or cancellation, which was not the case here.

The Court of Appeal upheld the CPSA's decision and held that s. 119(1)(f) of the HPA can reasonably be interpreted to permit a regulator to publish results of discipline hearings, even if the Tribunal did not order suspension or cancellation.

In a concise and well-reasoned decision, the Court confirmed that regulators under the HPA have expertise in interpreting their own legislation.

In addition to the specific interpretation of s. 119 of the HPA, the Court of Appeal reconfirmed the importance of transparency in this regulatory scheme. It noted that the previous governing legislation for physicians contained repeated presumptions of privacy for the members, but that the HPA does exactly the opposite: "Its scheme is openness" (para. 23).

The decision is important to regulators for a number of reasons, since it establishes that:

  1. Publication of discipline decisions protects the public by providing information about past misconduct. This enables consumers (i.e. patients) to make informed choices about their care.  
  2. Publication of discipline decisions, including reprimands, is consistent with the overall scheme of the HPA.  
  3. A professional reprimand is a public form of punishment. Without publication, a reprimand ceases to be a reprimand and is simply advice.

Regulators may find comfort in this decision, which reconfirms the importance of professional regulation, and provides authority for publication, without reference to privacy legislation. Rather, the focus is on the intent and wording of the HPA, which requires openness and contemplates publication in the discipline process.

The full decision is referenced as Zakhary v. College of Physicians and Surgeons of Alberta, 2013 ABCA 336.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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