In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal
found that the Alberta Veterinary Medical Association
("ABVMA") failed to afford procedural fairness to a
veterinarian undergoing an incapacity assessment. In the decision,
the Court provided some important guidance on procedural rights in
incapacity assessments, and regulators should take note.
The ABVMA received complaints which led it to believe that one
of its members, Dr. Irwin, may be incapacitated. Under the
Veterinary Profession Act, "incapacitated" means
"suffering from a physical, mental or emotional condition or
disorder or addiction" that impairs the member's ability
to practice in a safe and competent manner.
On the recommendation of the Complaints Director, the ABVMA
Practice Review Board ordered that Dr. Irwin be referred for a
physical and mental examination, and suspended Dr. Irwin until the
Board determined that he was no longer incapacitated. Dr. Irwin
cooperated with the examinations, and thereafter the Practice
Review Board ordered him to attend a residential treatment facility
within 60 days. It also confirmed Dr. Irwin's suspension from
practice. An appeal to the Council of the ABVMA affirmed the
Dr. Irwin challenged this decision on several grounds, part of
which was whether his right to procedural fairness before the
Practice Review Board was breached.
The Court found that Dr. Irwin was entitled to a high degree of
procedural fairness, as the impact of the decision (an immediate
and indefinite suspension) was significant. Prior to being
compelled to submit to psychiatric testing, Dr. Irwin was given no
disclosure of any documents, witness statements, or notice of the
nature of his alleged incapacitation. He had no opportunity to
respond before the Practice Review Board made its decision. Given
the seriousness of the allegations and consequences, such
procedural safeguards were required.
The Court did emphasize that the duty of procedural fairness
will not always mandate notice, disclosure and the
opportunity to respond before a suspension for incapacity may be
imposed – there may be circumstances where there is an
obvious urgency and a requirement to protect the public interest.
Context is key.
Issues surrounding incapacity have become increasingly
important, and many self-governing professions have significant
statutory discretion in determining how incapacity issues are
addressed. The Irwin decision is a rare example of a case
concerning incapacity issues.
The Veterinary Profession Act was modelled after the
Health Professions Act and is similar in nature. As such,
it is likely that the Court's analysis would apply not only to
veterinary regulators, but to all regulators who operate under the
Health Professions Act.
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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