Imposing a Period of Refresher Training: Exercise of the Discretionary Power of the Executive Committee of a Professional Order

On December 21, 2017, in the matter of Neumann v. Collège des médecins du Québec¹, the Quebec Superior Court rendered an interesting decision regarding the power of the executive committee of a professional order to require one of its members to take a period of refresher training.

The facts underlying this instance of judicial review are relatively straightforward.

Facts

Pursuant to the powers conferred upon it by the Professional Code² for supervising the practice of the profession and inquiring into the professional competence of its members, the Professional Inspection Committee (“PIC”) of the Collège de médecins (the “College”) paid an inspection visit to the professional domicile of Dr. Neumann, an 85-year old paediatrician who had been practicing medicine for more than 57 years. Following the inspection, the PIC recommended a compulsory 40-day period of refresher training, with the doctor’s right to practice limited to those acts necessary for completing the training.

On account of Dr. Neumann’s age and state of health, the College’s executive committee (the “Executive Committee”) chose to depart from the CIP’s recommendation and instead imposed a refresher training period of 20 half-days of ambulatory paediatrics, with no restriction on the doctor’s right to practice.

Some months after the beginning of the refresher training period, Dr. Neumann’s supervisor informed him that he was discontinuing the training because the goals sought to be achieved were not being met, and because of Dr. Neumann’s attitude. His report was filed with the Executive Committee, which endorsed it and then considered the advisability of imposing a new refresher training period of 40 days in ambulatory paediatrics.

After Dr. Neumann submitted his observations to the Executive Committee, it decided on March 23, 2017 to require him to complete a further refresher training period in ambulatory paediatrics of 40 days or until the objectives of the training had been met, with his right to practice limited to those acts necessary for completing the training, as initially recommended by the PIC.

Positions of the parties

Dr. Neumann applied for judicial review of this decision on the ground that the Executive Committee did not have the power to require him to complete a new period of refresher training merely on the basis of the report of a supervisor, without a new recommendation of the PIC following another professional inspection visit.

For their part, the College and the Executive Committee argued that the latter had the sole discretion to decide whether the training recommended by the PIC had been successful or not, and to determine, as the case may be, what additional measures should be imposed upon the professional in question. By imposing a second training period, it had determined the course of action that needed to be followed, which it had the power to do without a further recommendation by the PIC, which had already exercised its jurisdiction in the matter.

The Court’s reasoning

After closely scrutinizing the terms used in sections 55 and 113 of the Professional Code, the Court concluded that the executive committee of a professional order does not have the power to intervene and impose on a professional a new refresher training period that must be successfully completed, without a prior recommendation of the order’s PIC. In this instance, the College’s Executive Committee did not have the power to require Dr. Neumann to complete a second refresher training period in ambulatory paediatrics, this time with a 40-day term, without the PIC having made a second inspection visit and issued a new recommendation.

The Court accordingly granted the conclusions sought in the application for judicial review and annulled the Executive Committee’s decision to require Dr. Neumann to complete a new 40-day refresher training period with a limitation on his right to practice.

The judge disagreed with the College’s argument that the Executive Committee remained seized of the matter until the end of the process of the first imposed refresher training period, despite the failure of the training itself. If the executive committee of a professional order imposes a new refresher training period on one of its members that does not constitute an extension of the period currently ongoing, it can only do so upon the recommendation of the PIC.

The mission of professional orders, which is to protect the public, requires the power to monitor the professional competence of its members. In this respect the PIC plays a fundamental role. In our view, the PIC’s recommendations must be sufficiently detailed to provide for the consequences of the failure of the recommended refresher training period or course. Finally, in light of this decision, it may be appropriate to review the approach of the Executive Committee and the mechanisms between the College’s decision-making bodies in order to ensure that the aims of the process are effectively achieved.