Disclosure of Expert Evidence in Disciplinary Proceedings

By Sharan Basran

1. Introduction

The right to full disclosure for a healthcare professional facing allegations of misconduct is fundamental in disciplinary proceedings. Timely disclosure affords the health care professional full notice of the particulars of misconduct as well as the nature of the evidence upon which the prosecution relies in support of the allegations.

The specific disclosure obligation placed on regulatory bodies in Ontario is recognized in the Health Professions Procedural Code (Code) of the Regulated Health Professions Act. In particular, section 42(1) of the Code requires that the evidence be disclosed to a member at least 10 days before the hearing. This 10-day notice period applies with equal force to the disclosure of expert evidence by either the College or the Member.

2. Importance of Expert Evidence

The importance of expert evidence to disciplinary proceedings has long been recognized in Ontario Courts. It has been found that expert evidence may be essential to a finding of professional misconduct, particularly where the allegations involve a breach of standards of practice. A Discipline Committee cannot exclusively rely on its own expertise without other expert evidence on the record which may be tested by the parties in cross-examination and weighed (Reddall and College of Nurses (1983), 42 O.R. (2d) 412, McGuire v. Royal College of Dental Surgeons of Ontario (1991), 44 O.A.C. 11). Given the importance and complexity of expert evidence, as well as practical considerations such as the time required to retain and consult with a defence expert, it is surprising that the notice period is not longer.

Despite this relatively short notice period, some Colleges have failed to provide adequate disclosure in a timely manner. The failure to fulfill statutory obligations under the Code may be fatal to the prosecution. This is demonstrated in a recent case before the College of Nurses of Ontario.

The allegations in this recent case primarily related to the adequacy of assessments made by three nurses (Members) of a resident in a correctional facility. Counsel for the Members, brought a motion alleging that the College of Nurses had failed to fulfill the requirements of section 42 with regards to disclosure of expert evidence. The disclosure provided was held to be inadequate in substance and in timeliness.

3. Disclosure inadequate in substance

The Members were provided with notes from interviews with expert witnesses with a disclaimer stating “Please note: The following is a summary of the investigator’s interview with the interviewee. It is not a statement of the interviewee and has not been reviewed, or approved as accurate by the interviewee”. Counsel for the Members argued that providing unapproved notes did not constitute notice or a summary of the anticipated testimony from the expert, and the Members therefore would not be able to provide a full defence. In addition, it was argued that the area of expertise was not clearly identified in the interview notes.

The Discipline Committee determined that the interview with the witnesses did not meet the definition of either a “written report” or “written summary of the evidence” under section 42(1)(b) of the Code due to the disclaimer and the failure of the experts to verify the accuracy of the notes.

4. Disclosure untimely

The complaint against the Member was referred to the Discipline Committee in April 2003 and ongoing requests for disclosure were initiated in July, 2004. The hearing commenced on January 12, 2004 with a preliminary motion for third party production and the evidentiary portion of the hearing began on February 23, 2004. The interviews of some of the experts did not take place and were not provided until February 2004.

The Committee found that the disclosure was untimely. The Committee noted that although the prosecution indicated expert evidence was necessary in a standards case, there was no satisfactory explanation for not providing adequate expert reports at least 10 days prior to the hearing.

Result : Exclusion of Expert Evidence

The Committee was faced with the choice of excluding the expert evidence, or alternatively pursuant to section 42(2) to allow the evidence subject to measures to avoid any prejudice to the Members. The Committee decided to exclude the expert evidence on the grounds that no justification had been provided for the delay in disclosure.

Conclusion

This decision affirms the fundamental importance of timely and adequate disclosure of relevant evidence in professional disciplinary proceedings. Disclosure must not only meet any notice requirements, but the disclosure must be adequate in substance to permit a health care professional a meaningful opportunity to appreciate and respond to the evidence.