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	Obtaining Disclosure During an Investigation: How Much Can You Get?
	by Bernard C. LeBlanc
	July 2004 - Vol 5 No 10

	Whenever a regulator begins to investigate allegations of misconduct against one of its members, the practitioner is often anxious to obtain as much information from the regulator as possible. In fact, practitioners often retain counsel at the early stages of an investigation, and ask that the regulator disclose everything in the regulator’s possession about an investigation before responding to the allegations. However, the courts have consistently held that while practitioners are entitled to full disclosure of materials in the regulator’s possession before a Discipline Committee hearing, practitioners have considerably fewer rights to disclosure during the investigative stage. The idea is that because the result of a Discipline Committee hearing may be far more serious than simply the result of an investigation, the regulator is obliged to give greater procedural protection to its members only at the hearing stage. In certain investigations, it is sometimes appropriate for the regulator to retain an outside expert to review the case and provide an opinion as to whether the expert believes that the practitioner has fallen below the standards of practice. When the opinion is obtained, regulators often do not disclose that opinion to the practitioner before deciding what to do about a particular case. However, a recent case in the Ontario Divisional Court may suggest that regulators should disclose those expert opinions more often. In Stanley v. Ontario (Health Professions Appeal and Review Board), [2003] O.J. No. 2196, the Board confirmed the decision of the Complaints Committee of the College of Physicians and Surgeons of Ontario that Dr. Stanley had performed an improper breast examination, and that he made inappropriate remarks to the complainant. The difficulty is that there was a dispute as to what transpired as between the physician and the patient, as Dr. Stanley denied conducting the examination and the remarks. Where credibility is an issue, Complaints Committees are generally not permitted to make a finding as to what occurred one way or the other because Complaints Committees do not hold oral hearings. If the matter is sufficiently serious, however, the Complaints Committee usually refers the matter for a hearing before the Discipline Committee. In this case, the Complaints Committee found that it could not sanction Dr. Stanley because the issues raised questions of credibility. However, it also found that because the patient expressed her concerns to a friend shortly after her visit with Dr. Stanley, this constituted “corroboration”, and that the examination did take place and was inappropriate. Further, the Complaints Committee retained an expert who essentially relied on the patient’s version of events, not Dr. Stanley’s. However, the Complaints Committee did not release a copy of the expert’s opinion before deciding to caution Dr. Stanley. The matter went before the Health Professions Appeal and Review Board, which upheld the decision of the Complaints Committee. On judicial review, the Divisional Court found that the entire process fell below the standard of procedural fairness that the regulator owed to Dr. Stanley. While on the one hand the Complaints Committee correctly determined that it could not make a finding on matters of credibility, it effectively did so when it found that the friend’s corroborative evidence supported the complainant’s version of events. More important, both the Complaints Committee and the Board relied on the expert to say that the examination was inappropriate. While the court noted that Dr. Stanley denied that any such examination took place at all, the court noted that the expert’s opinion altered the focus of the Committee’s inquiry without Dr. Stanley’s knowledge, inferring that the Committee should have disclosed the expert’s report to Dr. Stanley before deciding what to do with the complaint. In the circumstances, the court therefore quashed the decision of the Complaints Committee and the Board. It is uncertain as to whether this case will be seen to require more frequent disclosure of expert opinions. However, courts do appear to be concerned that regulators treat their members fairly. This means, that in any given case, it may be appropriate to release an expert’s opinion before deciding what to do with a complaint. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.