Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Applicant v. The College of Physicians and Surgeons of British Columbia DECISION NO. 2016-HPA-209(b); 2016-HPA-210(b) September 15, 2017

In the matter of an application (the “Application”) for review under section 50.54 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the “Act”) of a registration decision made by registration committee

BETWEEN: Applicant 1

Applicant 2 The “Applicants”

AND: The College of Physicians and Surgeons of British Columbia

COLLEGE

BEFORE: Lorne Borgal, Panel Member

David Hobbs, Panel Member

Brenda L. Edwards, Panel Chair

REVIEW BOARD

DATE: Conducted by way of written submissions closing on July 28, 2017

APPEARING: For the Applicant: Craig P. Dennis, Q.C

For the College: Sarah Hellmann, Counsel

DECISION

I INTRODUCTION AND PROCEDURAL BACKGROUND

[1] On November 7, 2016, the Applicants filed applications with the Review Board seeking a review of decisions made by the Registration Committee on October 7, 2016. In its decision letter, the Registration Committee declined to grant the Applicants an extension of their registration and licensure under the Provisional; General/Family Practice class of registration and directed the cancellation of their registration and licensure effective December 26, 2016.

[2] On December 19, 2016, counsel for Applicant 1 emailed the Review Board enclosing an “Application for an Interim Stay of Decision Under Review for (Applicant 1)” together with an unsworn affidavit of Applicant 1 in support of the application. (A

sworn copy of the Affidavit and the supporting materials were provided to the Review Board on December 20, 2016, and were served on the College).

[3] Counsel for the College emailed the Review Board on December 20, 2016, enclosing a letter indicating that the College took no position with respect to the application for a stay of the Registration Committee’s decision regarding Applicant 1. On December 22, 2016, Member Edwards of the Review Board issued Review Board Decision No. 2016-HPA-209(a) staying and suspending the operation of the Registration Committee’s October 2016 Decision Re: Applicant 1.

[4] Member Hobbs, acting as the designate of the Chair of the Review Board assigned the review of Applicant 1’s Application for Review to Member Edwards on December 20, 2016, for a Stage 1 hearing (a hearing based only on the record of registration and licensure provided by the College and the submissions of Applicant 1).

[5] Meanwhile, on December 13, 2016, counsel for Applicant 2 wrote the Executive Director, Registration Services department of the College advising her that Applicant 2 had written the Fall 2016 sitting of the MCCQE Part 1 exam and had received his exam results; he narrowly failed the exam and had requested that it be re-scored. Applicant 2 requested that this information be placed before the Registration Committee at its December 15, 2016, together with his application requesting that the Registration Committee grant an extension of his registration and licensure until February 17, 2017, to allow time for the re-scoring to occur. In support of his request he offered an Undertaking to the College dated November 30, 2016, to restrict his practice to an office-based setting under supervision and to refrain from hospital-related practice. The Registration Committee granted the extension.

[6] The Review Board received the record of Applicant 2’s history of registration and licensure with the College (the “Record Re: Applicant 2”) on January 26, 2017, and subsequently, on February 6, 2017, the College provided the Review Board with the record of Applicant 1’s history of registration and licensure with the College (the “Record Re: Applicant 1”).

[7] On February 1, 2017, Applicant 2 was notified by the Medical Council of Canada that no adjustment had been made to his final score and confirmed that he had failed the exam by five points.

[8] On February 6, 2017, counsel for Applicant 2 emailed the Review Board enclosing an “Application for an Interim Stay of Decision Under Review for (Applicant 2)” together with a sworn affidavit of Applicant 2 in support of the application.

[9] On February 15, 2017, Review Board Member Hobbs wrote the Parties staying and suspending the operation of the Registration Committee’s October 2016 Decision Re: Applicant 2 with written reasons to follow. Those reasons were provided on March 22, 2017, in Review Board Decision No. 2016-HPA-210(a).

[10] On February 22, 2017, the Chair of the Review Board assigned the review of Applicant 2’s Application for Review to Member Hobbs for a Stage 1 hearing (that is a

hearing based only on the record of registration and licensure provided by the College and the submissions of Applicant 2).

[11] After receiving an extension of time in which to file her Statement of Points, on March 31, 2017, Applicant 1 filed her Statement of Points. Also on March 31, 2017, counsel for Applicant 2 filed his Statement of Points and a Form 10 List of Additional Information for the hearing with respect to Applicant 2.

[12] On April 10, 2017, Member Edwards determined that the hearing regarding Applicant 1 could not be properly decided at Stage 1 and directed the matter to a Stage 2 hearing so that she could hear from the College and so that Applicant 1 could be given the opportunity to reply to the College’s submissions. On April 11, 2017, Member Hobbs reached the same determination regarding the hearing for Applicant 2.

[13] On April 27, 2017, counsel for the Applicants applied to the Review Board for an order directing that the Applicants’ applications for review be decided by the same panel of the Review Board and at the same time. On May 11, 2017, Member Hobbs directed that the Stage 2 hearing for the Applicants applications for review be heard at the same time and adjudicated by the same panel and, further directed the appointment of a three-person panel comprised of himself, Member Borgal and Member Edwards as Panel Chair (the “Panel”).

[14] The Panel’s task, on behalf of the Review Board is to review the Registration Committee’s October 2016 Decisions regarding the Applicants and determine whether to confirm the decisions; make a decision that the Registration Committee could have made, or send the matters back to the Registration Committee with directions.

II THE APPLICANTS’ BACKGROUND AND HISTORY WITH THE COLLEGE

[15] Applicant 1 is a 40-year-old physician who grew up in South America, graduated from medical school and completed an internship in Africa and then immigrated to Canada with her spouse (Applicant 2) and children in 2010.

[16] Applicant 2 is a 48-year-old physician who grew up and graduated from medical school in South Africa. He practiced medicine in South Africa for several years before immigrating to Canada in 2010.

[17] In July 2010 the Registration Committee of the College passed Resolution 10-384 under which it deemed Applicant 2 eligible for registration and licensure to practice Family Medicine, under sponsorship and supervision, in an underserviced area of need in British Columbia under the Provisional; General/Family Practice class of registration. The registration and licensure was for a period of one year and was subject to certain conditions including that he obtain the Medical Council of Canada Evaluating Examination (the “MCCEE”) prior to commencing practice in British Columbia. The resolution further stipulated that a subsequent extension of his registration and licensure would be contingent upon Applicant 2:

attending the Physician Orientation Program for International Medical Graduates within the first year of practice in British Columbia;

becoming a Licentiate of the Medical Council of Canada (an “LMCC”) within three years of commencement of practice in British Columbia1, and

obtaining certification with the College of Family Physicians of Canada (“CCFP”) within five years of commencing practice in British Columbia, failing which registration may be cancelled.

[18] Subsequently, in March 2011 the Registration Committee of the College passed Resolution 11-205 under which it deemed Applicant 1 eligible for registration and licensure to practice Family Medicine, under sponsorship and supervision, in an underserviced area of need in British Columbia under the Provisional; General/Family Practice class of registration. The registration and licensure was for a period of one year and was subject to certain conditions including that she obtain the Medical Council of Canada Evaluating Examination (the “MCCEE”) prior to commencing practice in British Columbia. The resolution further stipulated that a subsequent extension of her registration and licensure would be contingent upon Applicant 1:

attending the Physician Orientation Program for International Medical Graduates within the first year of practice in British Columbia;

becoming a Licentiate of the Medical Council of Canada (an “LMCC”) within three years of commencement of practice in British Columbia; and

obtaining certification with the College of Family Physicians of Canada (CCFP) within five years of commencing practice in British Columbia, failing which registration may be cancelled.

[19] In mid-2011, the Applicants moved to a community in the Fraser Valley and purchased a family practice in anticipation of their registration.

[20] On September 12, 2011, Applicant 1 obtained her MCCEE and on November 8, 2011, Applicant 2 followed suit and on November 22, 2011, both were registered with the College in the Provisional; General/Family class.

[21] Because of complications following the birth of a child, Applicant 1 did not practice medicine from March 8, 2012, until late October 2012 and she did not sit the MCCQE Part I in 2012. During this time, Applicant 2 was unable to engage in the fulltime practice of medicine as he was caring for his wife and the couple’s three children and he did not sit the MCCQE Part I at either the spring or fall sitting in 2012.

[22] Neither Applicant sat the MCCQE Part I exam in the spring or fall of 2013. In 2013, the Certification exam that applicants must successfully challenge to gain

1 To become a LMCC, an applicant must successfully challenge two exams, the MCCQE Parts I and II.

Applicants may then challenge the Certification examination to become a CCFP.

certification with the CCFP was harmonized with the MCCQE Part II (the second exam that applicants must challenge to become an LMCC). Dr. Burak, Deputy Registrar for the College wrote the Applicants on February 23, 2015, advising them that the College had amended the relevant timelines so that the Applicants were required to pass the MCCQE Part I within three years of commencing practice in British Columbia and the MCCQE Part II and the CCFP examination within five years of commencing practice in British Columbia (previously, on February 6, 2014, the College advised Applicant 2 that he had five years from the date he commenced practice to obtain his LMCC (i.e. until November 22, 2016).

[23] Neither Applicant sat the Spring 2014 exam but both registered for and sat the Fall 2014 MCCQE Part I exam; neither passed. Both enrolled for and sat the Spring 2015 exam but did not pass. The mother of Applicant 1 died three weeks prior to the Spring 2015 exam and the couple were involved in organizing a ceremony and burial for her. On May 25, 2015, Applicant 2 applied for an extension of his registration and licensure. On June 26, 2015, the College wrote each Applicant that the MCCQE Part II exam had been de-harmonized from the Certification exam and as of 2016 the two exams would not be offered together but, despite the change, the College would honour the five-year time limit to obtain the LMCC, i.e. they still had until November 22, 2016 to obtain the LMCC.

[24] Both Applicants registered for and sat the Fall 2015 MCCQE Part I exam but did not pass and, as a result, their files were sent to the Registration Committee for review on March 29, 2016. The Applicants each wrote requesting an extension of registration and licensure based on exceptional and extenuating circumstances based on Applicant 1’s illness after the birth of her third child and the death of her mother. They sought a further opportunity to write the MCCQE Part I in Spring 2016 and, if successful, a further extension to obtain the MCCQE Part II and the CCFP.

[25] The Registration Committee reviewed the Applicants files at its March 29, 2016, meeting and passed Resolution 16-256 granting Applicant 1 an extension of her registration and licensure based on “extenuating circumstances.” Ms. de Bruin, Executive Director, Registration Department of the College, conveyed the Registration Committee’s decision to counsel for the Applicants by letter dated April 7, 2016 in which she noted, in part:

The Committee reviewed email correspondence dated February 6, 2014 from the College to (Applicant 1) reminding her of the requirements to obtain the MCCQE Part I by November 2014. At the time, given that the MCCQE Part II examination and the CCFP examination were harmonized, she was expected to obtain the MCCQE Part I examination within three years of commencement of practice in British Columbia and then complete the harmonized MCCQE Part II and CCFP within five years of practice. The Committee noted that, due to (Applicant 1’s) unexpected and serious health matters, she requested and was granted an extension of her registration and licensure for her to sit the MCCQE Part I examination in the fall of 2014.

The Committee reviewed correspondence dated February 23, 2015 from Dr. A.J. Burak, then Deputy Registrar, Registration, to (Applicant 1) confirming that she had sat and failed the MCCQE Part I examination in the fall of 2014 and that it is her intention to sit

the examination in the spring of 2015. The Committee noted that, due to (Applicant 1’s) significant health condition, she was absent from the practice from approximately February 2012 to October 2012. The Committee noted that (Applicant 1) was continuously registered with the College and did not apply for parental leave nor did she request to change her registration status to temporary inactive. On the basis of the reasons for her absence from practice, the College adjusted the timelines for her to obtain the MCCQE Part I examination and extended her registration and licensure in the provisional class until June 30, 2015 to allow her to sit the spring 2015 MCCQE Part I examination.

The Committee reviewed correspondence dated May 25, 2015 from (Applicant 1). The Committee noted that, she had registered for the MCCQE Part I examination on five occasions, two of which she was unsuccessful (fall 2014 and spring 2015) and the other three of which she did not sit the examination (spring 2012, spring 2013 and fall 2013). The Committee acknowledged the extenuating circumstances2 that affected (Applicant 1)’s ability to be successful on the MCCQE Part I examination namely, her significant medical illness and the death of a family member. Given the foregoing, (Applicant 1) has requested that her registration and licensure be extended an additional 11 months to enable her to sit the fall 2015 MCCQE Part 1 examination and the spring 2016 examination, if need be.

The Committee reviewed correspondence dated June 26, 2015 from Dr. A.J. Burak, then Deputy Registrar, Registration, to (Applicant 1) reminding her of the obligations to complete the examinations within the timeframes stipulated in the Committee’s initial eligibility resolution. In particular, given that (Applicant 1) commenced practice on November 22, 2012, she was required to obtain the MCCQE Part I by November 2015 and the MCCQE Part II and the CCFP by November 22, 2017. The Committee was advised that the dates referenced in Dr. Burak’s correspondence were incorrect and moreover, (Applicant 1) was registered on November 22, 2011 and accordingly, she was required to obtain the MCCQE Part I by November 2014 and, the MCCQE Part II and the CCFP by November 2016.

The Committee reviewed your correspondence dated March 15, 2016 requesting that, on the basis of (Applicant 1’s) exceptional and extenuating circumstances, the Committee grant her an extension of registration and licensure to permit her a further opportunity to write the MCCQE Part I examination in 2016 (and if so, then a corresponding extension past 2017 to obtain the MCCQE Part II and the CCFP). The Committee also reviewed (Applicant 1’s) study plan and preparation for the spring 2016 MCCQE Part I examination namely as follows: (details omitted)

…

The Committee noted that the MCCQE Part I examination evaluates a physician’s clinical skills and medical knowledge. In this regard, the Committee expressed concern that (Applicant 1) has been registered on the Provisional; General/Family class since November 22, 2011 (over four years) and has not met the requirement to obtain the MCCQE Part I within three years of commencing practice in British Columbia as stipulated in Resolution 11-205 and further, has been unsuccessful on the examination after three attempts.

2 The Panel notes that the Registration Committee used the term “extenuating circumstances” in its

March 2016 decision. The language of the applicable bylaw is “exceptional circumstances”: Bylaw 2-14(9)

The Committee discussed at length the documentation presented before it, and whether (Applicant 1) has provided any evidence of extenuating circumstances which caused her failure to comply with the timelines set out in the Committee’s Resolution 11-205. The Committee considered that an extenuating circumstance would constitute something beyond one’s control. The Committee acknowledged that (Applicant 1)’s illness and the death of a family member are matters beyond her control.

The Committee considered the role of the College and its overriding mandate to ensure the protection and safety of patients and to ensure that physicians are qualified, competent and fit to practice medicine and meet expected standards of practice and conduct. Based on the Committee’s comprehensive review of the available material and its consideration of the available options, the circumstances of (Applicant 1’s) case, and the legislated framework under which the College operates, the Committee directed that (Applicant 1’s) registration and licensure in the Provisional; General/Family Practice class be continued to allow her the opportunity to sit the spring 2016 MCCQE Part I examination.

The Committee passed the following resolution:

RESOLUTION 16-256

RESOLVED that (Applicant 1’s) registration and licensure be continued in the Provisional; General/Family Practice class to allow her the opportunity to sit the Spring 2016 MCCQE Part I examination.

(Applicant 1) must provide her results from the Spring 2016 MCCQE Part I examination by June 30, 2016.

If (Applicant 1) is unsuccessful at the Spring 2016 MCCQE Part I examination, her registration and licensure will be cancelled on September 30, 2016, allowing her three months to wind down her practice.

If (Applicant 1) is successful in the Spring 2016 MCCQE Part I examination she must obtain the MCCQE Part II and CCFP certification prior to December 31, 2017 otherwise her registration and licensure will be cancelled on March 31, 2018 allowing her three months to wind down her practice.

[26] Ms. De Bruin also wrote Applicant 2 on April 7, 2016, advising him of the Registration Committee’s decision with respect to his application for an extension of his registration and licensure:

The Committee reviewed email correspondence dated February 6, 2014 from the College to (Applicant 2) reminding him of the requirements to obtain the MCCQE Part I by November 2014. At the time, given that the MCCQE Part II examination and the CCFP examination were harmonized, he was expected to obtain the MCCQE Part I examination within three years of commencement of practice in British Columbia and then complete the harmonized MCCQE Part II and CCFP within five years of practice. The Committee noted that, due to (Applicant 2’s) wife’s unexpected and serious health matters, he requested and was granted an extension of his registration and licensure for him to sit the MCCQE Part I examination in the fall of 2014.

The Committee reviewed correspondence dated February 19, 2015 from Dr. A.J. Burak, then Deputy Registrar, Registration, to (Applicant 2) reminding him of the requirements of Resolution 10-384. (Applicant 2) was advised that, at that point in time, he has been registered with the College for over three years and has not met the requirement to obtain the MCCQE Part I examination; however, the College would be prepared to extend his registration and licensure in the provisional class until June 30, 2015 to allow him to sit the spring 2015 MCCQE Part I examination.

The Committee reviewed correspondence dated May 25, 2015 from (Applicant 2). The Committee noted that, he had registered for the MCCQE Part I examination on five occasions, two of which he was unsuccessful (fall 2014 and spring 2015) and the other three of which he did not sit the examination (spring 2012, spring 2013 and fall 2013). The Committee acknowledged the extenuating circumstances that affected (Applicant 2)’s ability to be successful on the MCCQE Part I examination namely, his wife’s significant medical illness and the death of a family member. Given the foregoing, (Applicant 2) has requested that his registration and licensure be extended an additional 11 months to enable him to sit the fall 2015 MCCQE Part 1 examination and the spring 2016 examination, if need be.

The Committee reviewed correspondence dated June 26, 2015 from Dr. A.J. Burak, then Deputy Registrar, Registration, to (Applicant 2) reminding him of the obligations to complete the examinations within the timeframes stipulated in the Committee’s initial eligibility resolution. In particular, given that (Applicant 2) commenced practice on November 22, 2012, he was required to obtain the MCCQE Part I by November 2015 and the MCCQE Part II and the CCFP by November 22, 2017. The Committee was advised that the dates referenced in Dr. Burak’s correspondence were incorrect and moreover, (Applicant 2) was registered on November 22, 2011 and accordingly, he was required to obtain the MCCQE Part I by November 2014 and, the MCCQE Part II and the CCFP by November 2016.

The Committee reviewed your correspondence dated March 15, 2016 requesting that, on the basis of (Applicant 2’s) exceptional and extenuating circumstances3, the Committee grant him an extension of registration and licensure to permit him a further opportunity to write the MCCQE Part I examination in 2016 (and if so, then a corresponding extension past 2017 to obtain the MCCQE Part II and the CCFP). The Committee also reviewed (Applicant 2)’s study plan and preparation for the spring 2016 MCCQE Part I examination namely as follows: (details omitted)

…

The Committee noted that the MCCQE Part I examination evaluates a physician’s clinical skills and medical knowledge. In this regard, the Committee expressed concern that (Applicant 2) has been registered on the Provisional; General/Family class since November 22, 2011 (over four years) and has not met the requirement to obtain the MCCQE Part I within three years of commencing practice in British Columbia as stipulated in Resolution 10-384 and further, has been unsuccessful on the examination after three attempts.

3 This time the Registration Committee used the language of “exceptional and extenuating” circumstances whereas the applicable bylaw uses the term “exceptional circumstances”: Bylaw 2-14(9).

The Committee discussed at length the documentation presented before it, and whether (Applicant 2) has provided any evidence of extenuating circumstances which caused his failure to comply with the timelines set out in the Committee’s Resolution 10-384. The Committee considered that an extenuating circumstance would constitute something beyond one’s control. The Committee acknowledged that (Applicant 2’s) wife’s illness and the death of a family member are matters beyond his control.

The Committee considered the role of the College and its overriding mandate to ensure the protection and safety of patients and to ensure that physicians are qualified, competent and fit to practice medicine and meet expected standards of practice and conduct. Based on the Committee’s comprehensive review of the available material and its consideration of the available options, the circumstances of (Applicant 2’s) case, and the legislated framework under which the College operates, the Committee directed that (Applicant 2’s) registration and licensure in the Provisional; General/Family Practice class be continued to allow him the opportunity to sit the spring 2016 MCCQE Part I examination.

The Committee passed the following resolution:

RESOLUTION 16-257

RESOLVED that (Applicant 2)’s registration and licensure be continued in the Provisional; General/Family Practice class to allow him the opportunity to sit the Spring 2016 MCCQE Part I examination.

(Applicant 2) must provide his results from the Spring 2016 MCCQE Part I examination by June 30, 2016.

If (Applicant 2) is unsuccessful at the Spring 2016 MCCQE Part I examination, his registration and licensure will be cancelled on September 30, 2016, allowing him three months to wind down her/his practice.

If (Applicant 2) is successful in the Spring 2016 MCCQE Part I examination, he must obtain the MCCQE Part II and CCFP certification prior to December 31, 2017 otherwise his registration and licensure will be cancelled on March 31, 2018 allowing him three months to wind down his practice.

[27] The Applicants registered for and sat the Spring 2016 MCCQE Part I exam. The morning of the exam, Applicant 2’s elderly mother (the “Mother”) began experiencing chest pains and shortness of breath. As she had a history of heart attack, the Applicants urged her to go to hospital but she refused. The Applicants sat the exam but neither passed.

[28] On June 14, 2016, after receiving the exam results for each Applicant, the College notified each Applicant that her/his file would, again, be reviewed by the Registration Committee at its July 28, 2016, meeting and invited each to provide written submissions regarding any extenuating circumstances that they wished the committee to consider. The Applicants each provided a submission to the Registration Committee on July 15, 2016, regarding the “extenuating circumstances” that they wished the Committee to consider. They identified factors that they believed might have affected their ability to pass the Spring 2016 MCCQE Part I exam including the Mother’s cardiac

event on the date of the exam, struggle with balancing professional responsibilities with exam preparation; challenges in finding childcare and anxiety and stress regarding the exam.

[29] On August 17, 2016, Ms. De Bruin wrote each Applicant advising that the Registration Committee had deliberated and had decided to defer its decision to provide each the opportunity to provide the Registration Committee with further details regarding the Mother’s medical emergency, including how it affected each Applicant’s exam performance. Ms. De Bruin advised the Applicants that the Registration Committee would consider the matters, again, on September 26, 2016. Each Applicant wrote the Registration Committee stating their concern for the Mother on the day of the exam and how each had difficulty concentrating because of their concern.

[30] The Registration Committee met on September 26, 2016, and reconsidered its decisions regarding each Applicant. After deliberating, the Registration Committee determined that there were no exceptional circumstances4 that warranted a further extension of either Applicant’s registration and licensure and directed the College to cancel the registration and licensure for each effective December 26, 2016, allowing each three months to wind down their practice5. On October 7, 2016, Ms. De Bruin wrote each Applicant and conveyed the Registration Committee’s decision (the October 2016 Decision).

[31] Notwithstanding the October 7, 2016, decision of the Registration Committee, Applicant 2 wrote the MCCQE Part I exam for a fifth time on November 7, 2016 but did not pass6. As he scored close to a passing grade, he submitted a request for a re-scoring of the exam to the Medical Council of Canada and on December 13, 2016, he applied to the Registration Committee for a brief extension of his registration and licensure until February 17, 2017, so that he might obtain the results of the rescoring. His intention, if he passed the exam on a re-scoring, was to formally request that the Registration Committee reconsider its decision to cancel his registration and licensure. On December 15, 2016, the Registration Committee met and granted the request. Its decision was conveyed to Applicant 2 by Ms. de Bruin on January 12, 2017 in a letter in which she noted:

The Committee acknowledged your submission that, should (Applicant 2)’s rescore request with the MCC be successful, it is his plan to sit the Spring 2017 MCCQE Part II examination and the Fall 2017 College of Family Physicians of Canada (“CFPC”), in keeping with the Committee’s prior direction to grant him an extension of his registration and licensure, Resolution 16-257 dated March 29, 2016 specifically that, he must obtain the MCCQE Part II and the CFPC prior to December 31, 2017. The Committee also noted that, should (Applicant 2’s) rescore request with the MCC be unsuccessful, he will

4 At this meeting, the Registration Committee properly used the language of Bylaw 2-14(9), i.e.

“exceptional circumstances”. 5 The Registration Committee passed Resolution 16-799 directing the cancellation of Applicant 1’s

registration and licensure effective December 26, 2016 and Resolution 16-800 directing the cancellation of Applicant 2’s registration and licensure effective the same date. 6 (The Panel had no information regarding whether Applicant 1 sat the MCCQE Part I at the fall 2016

sitting.)

sit the Spring 2017 MCCQE Part I examination, the Fall 2017 MCCQE Part II examination and the Fall 2017 CFPC examination.

The Committee reviewed (Applicant 2’s) executed Undertakings dated November 30, 2016 (the “Undertakings”) restricting his medical practice solely to the provision of office based general/family practice and refraining from engaging in any form of hospital based general/family practice and, agreeing to practice under the supervision of [another doctor]. The Committee acknowledged your submission regarding (Applicant 2’s) practice in accordance with his Undertakings and assurances that there should be no concern regarding his continued practice during the short extension period in light of his Undertakings.

…

The Committee reviewed the available information and considered (Applicant 2)’s request. The Committee acknowledged (Applicant 2)’s compliance with the Undertakings and expressed the view that a short extension of his registration and licensure with appropriate oversight within an office-based practice setting would be appropriate in the circumstances. In this regard, the Committee concluded that it would be prepared to grant (Applicant 2) an extension of his registration and licensure to February 17, 2017.

[32] On February 1, 2017, Applicant 2 received word from the Medical Council of Canada that, after rescoring his exam, the original score was unchanged and he had failed the MCCQE Part I exam.

III LEGISLATIVE FRAMEWORK AND ANALYSIS

[33] In reaching a decision, the Panel considered all the information that was before it whether specifically referenced in this decision or not, including:

The Applicants’, Applications for Review of a Registration Decision;

Submissions from the Applicants including Affidavits for each Applicant (including the Applicants’ September 16, 2016 submission to the Registration Committee);

Submissions from the College;

The Record Re Applicant 1;

The Record Re: Applicant 2.

Statutory Provisions Governing Registration

[34] Section 20(1) of the Act provides that the Registration Committee is responsible for granting registration of a person as a member of the College. Section 20(2) requires the registration committee to grant registration to every person who, in accordance with the bylaws, applies to the college for registration, pays the required fees and “satisfies the registration committee that he or she meets the conditions or requirements of registration in a class of registrants.”

[35] Sections 20(4.3) and (4.4) of the Act specifically address “provisional registrants:”

20(4.3) If a bylaw under section 19 (1) (i) establishes a class of provisional registrants for the purposes of this subsection, the registration committee may

(a) grant registration in the class for a limited period specified for the registrant by the registration committee,

(b) require the registrant to complete, within the period specified under paragraph (a), any examinations or upgrading of knowledge, skills or abilities the registration committee considers necessary for the registrant, and

(c) impose limits or conditions on the practice of the designated health profession by the registrant.

(4.4) Limits or conditions imposed in accordance with subsection (2.1), (3), (4.2) or (4.3) may be different for different registrants within a class of registrants.

[36] Section 20(4.3) applies only if a College has passed a bylaw under section 19(1)(i) of the Act. Section 19(1)(i) states:

19 (1) A board may make bylaws, consistent with the duties and objects of a college under section 16, that it considers necessary or advisable, including bylaws to do the following:

(i) establish a class or classes of registrants, including, if authorized in accordance with section 12(2)(g.3), a class of restricted or provisional registrants for the purposes of section 20 (4.2) or (4.3), respectively, and specify if members of a class are eligible to vote in an election referred to in section 17 (3) (a) or to be elected under section 17 (3) (a);

[37] Section 19(1) of the Act also includes several provisions allowing the College to make bylaws concerning conditions or requirements for registration:

19 (1) A board may make bylaws, consistent with the duties and objects of a college under section 16, that it considers necessary or advisable, including bylaws to do the following:

... (m) establish conditions or requirements for the registration of a person as a member of the college, including the following:

(i) standards of academic or technical achievement; (ii) competencies or other qualifications; (iii) requirements for providing evidence of good character;

(m.1) specify academic or technical programs that are recognized by the college as meeting a standard established under paragraph (m) (i); (m.2) provide for the examinations that may be required, used or relied on by the registration committee in satisfying itself under section 20 that a person meets the conditions or requirements for registration as a member of the college;

(m.3) establish conditions or requirements for eligibility to take examinations referred to in paragraph (m.2) and procedures respecting the conduct of examinations, and authorize a committee established under paragraph (t) or the registrar to establish additional examination procedures consistent with the bylaws; (m.4) confer discretion on the registration committee, in satisfying itself under section 20 that a person meets the conditions or requirements for registration as a member of the college, to consider whether the person's knowledge, skills and abilities are substantially equivalent to the standards of academic or technical achievement and the competencies or other qualifications established under paragraph (m), and to grant registration on that basis;

The College Bylaws

[38] College Bylaw 2-9 sets out the classes of registrants established by the College and includes provisional registrants.

[39] College’s Bylaw 2-14 addresses Provisional Registrants, and sets out a series of conditions for a person to become a provisional registrant, starting with the application for provisional registration, the requirement for a sponsor and the requirement for a supervisor followed by conditions which are subject to time restrictions (unless there are “exceptional circumstances”).

[40] College By-law subsections 2-14(8), (9) and (10) state:

2-14(8) A registrant granted provisional registration must (a) if a general/family practitioner, become a licentiate of the MCC within three

years of commencing practice in British Columbia,

(b) if a specialist, become a licentiate of the MCC within five years of commencing practice in British Columbia, subject to section 2-21.

(9) The time periods referred to in section 2-14(8)(a) and (b) may be extended by the registration committee in exceptional circumstances. (10) A general/family practitioner granted provisional registration must, within five years of commencing practice in British Columbia, obtain certification with the CFPC, failing which registration is cancelled unless extended by the registration committee in exceptional circumstances. [emphasis added]

[41] College Bylaw 2-15 imposes yet further requirements for the grant of provisional registration:

2-15 (1) For the purposes of section 20(2) of the Act, to be granted provisional registration for general/family practice, an applicant must

(a) have a medical degree,

(b) meet one of the following requirements:

(i) have completed a general/family medicine program in Canada

after July 1, 2010, but has not passed the CFPC examinations, provide a recommendation from the applicant’s Program Director and Chairperson of the Department of Family Medicine, attesting to competence and successful completion of all program requirements, acceptable to the registration committee,

(ii) have successfully completed a minimum of two years of accredited postgraduate training in a foreign jurisdiction recognized by the CFPC for the award of certification without examination, with a basic core of 44 weeks, consisting of eight weeks in each of medicine, surgery, obstetrics/gynecology, and paediatrics, and four weeks in each of psychiatry, emergency medicine, and general/family practice,

(iii) have undergone an assessment of competency acceptable to the

registration committee in a Canadian province or territory, and (c) be legally entitled to live and work in Canada.

(2) An affected applicant may be granted provisional registration for general/family practice if, in addition to the requirements in section 2-15(1), the affected applicant has fulfilled the requirements of section 2-10(3).

Statutory Provisions Governing the Review Board

[42] Section 50.54 of the Act allows an applicant in receipt of a registration decision, the right to request a review by the Review Board. “Registration decision” is defined in s. 50.5 of the Act as follows:

"registration decision" means a decision made by a registration committee

(a) to refuse to grant an application for registration as a member of a college under section 20, except for a refusal under section 20 (2.1) or (3),

(b) to grant registration in a class of registrants under section 20 with limits or conditions on the practice of the designated health profession by the registrant, except limits or conditions imposed under section 20 (2.1) or (3), or

(c) if a college has established one or more classes of certified non-registrants, to refuse an application for certification as a certified non-registrant.

[43] The Act provides in s.50.54(7) that a review is a review on the record but the Review Board may hear evidence that is not part of the record if that evidence is reasonably required by the Review Board for a full and fair disclosure of all matters related to the issues under review.

[44] In his letter of April 27, 2017, counsel for the Applicants requested an oral hearing. The College did not consent to the application.

[45] The Panel finds that it is able to fully and fairly decide the review based on the record provided by the College for each Applicant and the submissions from the Parties and does not require an oral hearing.

[46] The Review Board is given the following remedial authority on a registration review:

50.54(9) On completion of its review under this section, the review board may make an order

(a) confirming the registration decision, (b) directing the registration committee to make a decision that could have been made by the registration committee in the matter, or (c) sending the matter back to the registration committee for reconsideration with directions.

[47] In contrast to the provisions governing complaint disposition reviews in s.50.6 of the Act, there is no legislated standard of review that governs the Review Board on a registration review except where the Review Board proposes to issue an order directing the Registration Committee to grant registration with or without limits or conditions. An order directing the Registration Committee to grant registration with or without conditions cannot be made unless the following requirements are met:

(10) The review board may make an order under subsection (9) directing the registration committee to grant registration with or without limits or conditions, or certification, as the case may be, only if the review board is satisfied that

(a) all of the following apply:

(i) the registration committee failed to act fairly in considering the application for registration or certification;

(ii) the registration decision

(A) was made arbitrarily or in bad faith,

(B) was made for an improper purpose,

(C) was based entirely or predominantly on irrelevant factors, or

(D) failed to take requirements under this Act into account;

(iii) the conditions described in subsection (11) (a) or (b) are met, or

(b) the person is a person to whom the registration committee is obliged under the Labour Mobility Act to grant registration or certification.

(11) The following conditions apply for the purposes of subsection (10) (a) (iii):

(a) in the case of a person applying for registration as a member of the college,

(i) the person's knowledge, skills and abilities must be substantially equivalent to the standards of academic or technical achievement and the competencies or other qualifications required for registration in a class of registrants, and

(ii) the applicant must meet any other conditions or requirements for registration in the class of registrants;

(b) in the case of a person applying for certification as a certified non-registrant,

(i) the applicant's knowledge, skills and abilities must be substantially equivalent to the training or educational requirements for certification in a class of certified non-registrants, and

(ii) the applicant must meet any other conditions or other requirements for certification in the class of certified non-registrants.

Standard of Review

[48] We start with the standard of review that we ought to apply on this review.

[49] The Review Board has previously found in Decision No. 2016-HPA-195(b) that where the remedy is other than a direction to grant registration, the Review Board must determine for itself the appropriate standard to apply. The relevant standard may depend on the nature of the issue. The Panel accepts that reasoning and has applied it to this review.

[50] The issue here is whether the Review Board should interfere with the Registration Committee’s refusal under Bylaw 2-14(9) to further extend the three-year time limit under Bylaw 2-14(8)(a) and (9) after previously extending that time limit in March 2016 and after the College had previously adjusted that time limit to take into account the impact on the Applicants of the serious health condition that Applicant 1 faced following the birth of a child and given the de-harmonization of the MCCQE Part II and CCFP exams.

[51] For this kind of question, the Panel finds that it ought not engage in a de novo assessment that simply substitutes its judgment for that of the Committee. The Panel is of the view that considerable weight and respect should be given to the rationally expressed views and conclusions of the Registration Committee. That said, where the Registration Committee has given reasons that cannot withstand scrutiny, or has rendered a decision whose rationale is impenetrable, the Review Board may act, and may thereafter consider what remedy is appropriate. The review function would be futile if the Review Board was required to uphold a clearly flawed or unintelligible decision: see e.g., Review Board Decision No. 2015-HPA-065(a) at paras. [230-237]; para. [266]. See also, Review Board Decision No. 2016-HPA-195(b).

[52] Before turning to our analysis, it is appropriate to observe that the Applicants have not in this case asked the Review Board to set aside the requirement that they obtain the LMCC Licentiate itself. Rather, they ask that the Review Board find the Registration Committee’s October 2016 decisions unreasonable, quash the decisions and send the matters back to the Registration Committee for reconsideration.

Analysis Test for an Extension of Registration and Licensure:

[53] The Applicants have submitted that the Registration Committee erred in requiring that they demonstrate “exceptional circumstances” to be granted an extension of their registration and licensure. They argue that when they sought an extension of time from the Registration Committee in March 2016, it was a condition of their registration and licensure that they obtain the LMCC and the CCFP by November 22, 2016. The Applicants sought “that these time periods be extended into 2017” and cite their respective Records at pp. 250 and 318.7 They acknowledge that this engaged the “exceptional circumstance” test set out in Bylaw 2-14 (9). They further submit that when they next applied to the Registration Committee for an extension in September 2016, they had already been granted until December 31, 2017, to obtain the LMCC and the CCFP and were now only seeking an extension of the time to complete the MCCQE Part I. Accordingly, the say that the test of “exceptional circumstances” was not applicable to this request.

[54] The Record for the Applicants does not support the Applicant’s description of their application to the Registration Committee in March 2016. On March 15, 2016, counsel for the Applicants wrote the College enclosing a copy of correspondence dated the previous day from the Applicants requesting: Registration Committee:

the Registration Committee to grant them both an extension of their provisional registration until after the Fall sitting of the MCCQE Part I

…

And, after setting out their reasons for the request, the Applicants stated:

In summary, we respectfully request that the extension of licensure be provided to (the Applicants) to permit them a further opportunity to successfully pass the MCCQE Part I in 2016 (and if so, then a corresponding extension past 2017 to obtain the CCFP and MCCQE Part II). (underlining added)8

[55] Further, the Registration Committee’s March 2016 Decision does not stipulate that the Applicant’s had been granted an extension until December 31, 2017, to obtain their LMCC and CCFP. Rather the decision with respect to each of the Applicants clearly states the Applicants’ registration and licensure was being “continued” to allow each one further attempt at the MCCQE Part I in Spring 2016:

7 Applicant 1 at p. 250 of her Record and the Record re Applicant 2 at p. 318.

8 Ibid.

RESOLUTION 16-256

RESOLVED that (Applicant 1’s) registration and licensure be continued in the Provisional; General/Family Practice class to allow her the opportunity to sit the Spring 2016 MCCQE Part I examination.

(Applicant 1) must provide her results from the Spring 2016 MCCQE Part I examination by June 30, 2016.

If (Applicant 1) is unsuccessful at the Spring 2016 MCCQE Part I examination, her registration and licensure will be cancelled on September 30, 2016, allowing her three months to wind down her practice.

If (Applicant 1) is successful in the Spring 2016 MCCQE Part I examination she must obtain the MCCQE Part II and CCFP certification prior to December 31, 2017 otherwise her registration and licensure will be cancelled on March 31, 2018 allowing her three months to wind down her practice. (emphasis added)

And with respect to Applicant 2, the Registration Committee decided:

RESOLUTION 16-257

RESOLVED that (Applicant 2)’s registration and licensure be continued in the Provisional; General/Family Practice class to allow him the opportunity to sit the Spring 2016 MCCQE Part I examination.

(Applicant 2) must provide his results from the Spring 2016 MCCQE Part I examination by June 30, 2016.

If (Applicant 2) is unsuccessful at the Spring 2016 MCCQE Part I examination, his registration and licensure will be cancelled on September 30, 2016, allowing him three months to wind down her/his practice.

If (Applicant 2) is successful in the Spring 2016 MCCQE Part I examination, he must obtain the MCCQE Part II and CCFP certification prior to December 31, 2017 otherwise his registration and licensure will be cancelled on March 31, 2018 allowing him three months to wind down his practice. (emphasis added)

[56] The Panel finds that following the Registration Committee’s March 2016 Decisions, the Applicants’ continued registration and licensure was subject to the terms stipulated by the Registration Committee in Resolutions 16-256 and 16-257, i.e. successfully passing the Spring 2016 MCCQE Part I exam or their licenses and registration would be rescinded.

[57] Counsel for the Applicant wrote the College on July 15, 2016, on behalf of each of the Applicants and asked that the letter be accepted as a “formal request for a further extension of his/her registration and licensure.” Counsel identified “extenuating circumstances” that led to their not successfully passing the MCCQE Part I examination and sought a “further opportunity to successfully challenge the MCCQE Part I” noting:

(T)he Registration Committee has the discretion to grant a further extension and given the unique circumstances of this case, no precedent would be created that could limit the College’s exercise of discretion in the future. This discretion is expressly confirmed by by-law 2-14(10)

[58] As noted earlier in this decision By-law 2-14 (10) does not extend registration and licensure, rather it gives the Registration Committee the authority to extend the timeline for obtaining the CCFP in exceptional circumstances. That By-law is not applicable to the Applicants’ July 15, 2016, request for “a further extension of (their) registration and licensure” for the stated reason of permitting each a final attempt at the MCCQE Part I.

[59] The Panel notes that when the Applicants applied to the Registration Committee in July 2016 they described “extenuating circumstances” justifying their request. The Panel finds that the language of the By-laws is “exceptional.” Extenuating circumstances are those that would partly excuse a failure to do something or to act wrongly whereas exceptional circumstances are extraordinary and happen only infrequently.

Extenuating - make (guilt or an offense) seem less serious or more forgivable

synonyms: excuse, mitigate, palliate, make allowances for, make excuses for

Exceptional - unusual; not typical

synonyms: unusual, uncommon, abnormal, atypical, extraordinary

(Source: Oxford Dictionary)

[60] The Panel notes that the Registration Committee deferred its decision on the Applicants’ July 2016 request until September 26, 2016, when the Committee noted the requirement in By-law 2-14(8)(a) for applicants to obtain the LMCC within three years of commencement of practice and obtain certification by the CFPC within five years, failing which registration is cancelled. The Committee also noted its authority to extend the time periods for obtaining the required examinations in exceptional circumstances as provided in By-laws 2-14(9) and 2-14(10). When the MCCQE Part II was separated from the Part I and harmonized with the CCFP, the Applicants were given the benefit of only being held to the requirement to obtain one half of the LMCC within the three-year period stipulated in the Bylaws. They did not do so and were granted an extension of time to do so; they failed again.

[61] The Panel finds that the Registration Committee reasonably determined in the circumstances that the Applicant’s second request to extend the timeline to obtain the MCCQE Part I, ought to meet the same test as their first request, i.e. demonstrating that there were “exceptional circumstances” to justify continuing the Applicants registration and licensure when they had failed to pass even the first part of the LMCC in the extended time they had been provided.

Reasonableness of the Registration Committee’s Refusal:

[62] On what basis did the Registration Committee refuse to extend the time limit for the Applicants? The Panel finds that the Registration Committee’s refusal to grant an extension of the Applicants’ registration and licensure in the October 2016 decisions must be considered in the context of the Applicants’ history of registration and licensure with the College, key elements of which are highlighted, below.

The Registration Committee reviewed the Applicants’ registration and licensure in March 2016 due to their failure to comply with the conditions of their provisional registration and licensure. At the March 2016 meeting, the Registration Committee considered that:

Applicant 1 had significant health issues following the birth of a child and had been absent from practice for approximately 9 months but that she had not contacted the College to request parental leave or a change to her registration status and had been continuously registered;

In February 2014 the College had adjusted the timeline for Applicant 1 to obtain the MCCQE Part I to reflect her absence from practice due to her health condition so that she would continue to be provisionally registered until June 30, 2015, (rather than November 22, 2014 as she might otherwise) and so that she could sit the spring 2015 MCCQE Part I exam;

The College adjusted the Applicants’ applicable timelines regarding registration and licensure again in February 2015 to reflect the de-harmonization of the MCCQE Part II and the CCFP exams;

The Applicants had registered for the MCCQE Part I on six occasions and had been unsuccessful at three attempts (fall 2014, spring 2015, fall 2015) and had not sat the other three occasions (spring 2012, spring 2013 and fall 2013) and had not registered for the fall 2012 sitting or the spring 2014 sitting.

[63] The Registration Committee granted the Applicants’ request for an extension of their registration and licensure in March 2016 due to “extenuating circumstances,” specifically Applicant 1’s significant medical illness and the death of her mother and the impact of both events on the Applicants. They were given the opportunity to sit the MCCQE Part I in Fall 2015 and Spring 2016, if necessary.

[64] In July 2016 when the Registration Committee next considered the Applicants’ registration and licensure it was aware that:

The Applicants sat and failed the MCCQE Part I exam for a fourth time in Spring 2016;

The Applicants had been previously granted an extension of their registration and licensure due to “extenuating circumstances” in March 2016;

The College had adjusted the Applicants’ timeline to extend the time in which they were to obtain their LMCC due to the de-harmonization of the MCCQE Part II and the CCFP;

the Applicants were seeking further extensions of their registration and licensure citing “extenuating circumstances” including the Mother’s cardiac event on the date of the exam, their struggle with balancing professional responsibilities with exam preparation, challenges in finding childcare and anxiety and stress regarding the exam;

On July 15, 2016, the Applicants acknowledged in their request for a further extension of their registration and licensure that they were “nearing the end of the road” and recognized the concerns the Registration Committee had regarding further extensions and they offered a study plan including their full time preparation for the Fall 2016 MCCQE Part I exam;

The Committee deferred its decision until the Applicants had the opportunity to provide further information about the Mother’s medical emergency on the date of the Spring 2016 exam and, then, considered that information.

[65] When the Registration Committee met on September 26, 2016, it had before it the Minutes of the July 28, 2016, meeting (wherein the Registration Committee considered the March 2016 decisions), and a September 16, 2016, letter from counsel for the Applicants attaching Undertakings from the Applicants (to absent themselves from the practice of medicine for the purpose of studying fulltime for the Fall 2016 MCCQE Part I exam), a detailed explanation from the Applicants of the Mother’s medical emergency on the date of the Spring 2016 exam and medical records for the Mother for the applicable time.

[66] In Review Board Decision No. 2015-HPA-088(a) at para. [12], the panel noted some of the key factors that should be present in a "reasonable" disposition.

A reasonable disposition should be transparent (clear as to how the Inquiry Committee arrived at its conclusion), intelligible (clearly expressed, easy to understand) and justified (the reader should be able to understand the factual and legal foundation for the Inquiry Committee’s conclusion).

[67] The Panel finds that the Applicants were aware when they applied for a second extension of their registration and licensure in July 2016 that they were “nearing the end of the road” regarding their history with the College and were aware that the Registration Committee had indicated in its March 2016 decisions that, in assessing whether there were “exceptional circumstances” to warrant the Registration Committee granting the Applicants an extension of their registration and licensure, it would need to be satisfied that there were factors that were beyond the Applicants’ control that impacted their ability to meet the conditions of their provisional registration and licensure. The Panel further finds that in its October 2016 Decision, the Registration Committee followed the same line of reasoning as it did in its March 2016 Decisions, i.e. an extension of the Applicants’ registration and licensure would only be granted where

the Committee was satisfied that there were factors that were beyond the Applicants’ control that impacted their ability to meet the conditions of their provisional registration and licensure.

[68] Had the Registration Committee found that there were “exceptional circumstances” that warranted extending the Applicants’ registration and licensure until they had the opportunity to sit the Fall 2016 MCCQE Part I exam, it might have found that any risk to the public could be adequately addressed by accepting the terms of the Undertakings offered by the Applicants; that was the Registration Committee’s decision to make and it is not for this Panel to substitute our judgment for the Registration Committee’s merely because we may have reached a different result.

[69] The Panel finds that the Registration Committee considered the Applicants’ history, which would have included concerns that had been expressed by their supervisors. The Applicants’ history or registration and licensure also included changes the College had made to the timelines for meeting their ongoing eligibility requirements as stipulated in the Registration Committee’s original eligibility resolutions to recognize the impact on both Applicants of Applicant 1’s medical condition in 2012 and the de-harmonization of the exams in 2015. The Panel further finds that the Registration Committee also considered its March 2016 decisions extending the Applicants’ registration and licensure and its July 2016 deferral of a decision and its subsequent consideration of the detailed information regarding the Mother’s medical emergency on the date of the Spring 2016 exam and how it impacted the Applicants’ success at that sitting. The Panel notes that the Registration Committee then considered the legislative authority that the Registration Committee and the College has to determine classes of registrants and qualifications for registration and the College’s duty to protect the public and ensure registrants are properly qualified.

[70] Finally, the Panel finds that in articulating its consideration of all the above-noted factors, the Registration Committee was transparent, intelligible and justified in its decision. In other words, while the result of the Registration Committee’s October 2016 Decisions is unfortunate for the Applicants, the Panel does not find that it was unreasonable.

IV CONCLUSION

[71] For all the above reasons, the Panel orders that the Registration Committee’s decision of October 7, 2016, Decision Re: Applicant 1 and the October 7, 2016 Decision Re: Applicant 2 are confirmed under s.50.54(9)(a).

V CONCERN

[72] Within the narrow scope of review set out in the Act, we found it necessary to confirm the Registration Committee’s decision in this matter, however, the issues raised herein compel us to raise the following concern.

[73] The Panel Members collectively have encountered many Applications for Review with characteristics similar to those in these matters. Other members of the Review

Board have likewise encountered Applications for Review with similar characteristics. This matter raises once again the challenges faced by foreign trained physicians when they are transitioning to practice in BC. From among those physicians who have made Applications for Review, there is a pattern emerging which this panel finds deeply troubling.

[74] The Panel notes that Physicians, such as the Applicants, who are provisionally registered and licensed by the College have been recruited by stakeholders such as hospitals, health authorities, and cancer agencies to provide medical and/or mental health services to communities who are under-serviced. In many cases, these physicians uproot their families and leave their country of origin or the country where they practiced medicine to move to British Columbia and immerse themselves in a foreign culture to assist these needy communities. Very often they face overwhelming patient loads and work long hours to offer health care when little or none was previously available. And yet, it appears that they are not supported as they struggle to meet the needs of their patients while also meeting the terms that the College places on their ongoing registration and licensure, specifically passing certain exams within a stipulated period. Further, the Panel has observed that provisionally registered physicians not only practice medicine, they also buy homes, enroll their children in school, teach medical students, coach sports, and contribute in countless ways as they pursue permanent residency or Canadian citizenship; all of which may be lost if the College cancels or declines to extend their registration and licensure.

[75] The Panel reminds the College that it has a duty, at all times, to both serve and protect the public and to discharge its powers and duties in the public interest. The Panel questions how the College is serving the public by allowing foreign-trained physicians to be registered and practice medicine in the Province, sometimes for many years, only to have their registration and licensure cancelled at the eleventh hour for failure to pass an examination within a stipulated time. Might the College play more of an early interventionist role working with the physician between the time of arrival in the under-serviced community and the deadline for meeting requirements of ongoing registration? Could the College provide additional services or monitoring to ensure that provisional registrants are adequately supported so that they are afforded both the time and resources to successfully undertake these examinations while managing busy practices if, indeed the exams are an appropriate gauge of suitability to practice in a manner that suitably protects the public? Is the College pursuing all reasonable options, short of cancelling these physicians’ registration and licensure?

[76] These concerns bring us to question precisely how the Registration Committee is serving the public by letting physicians practice with large patient loads for many years without passing the requisite exams, only to then determine that the same physician is not qualified to provide the services based on not passing these exams? This leads the Panel to note that in this case, the Applicants provided medical service to an evidently large patient group for several years as physicians. We understand their patients consider the Applicants to be their physician. With their decision, the Registration Committee determined that they are not qualified to practice medicine in the Province. The Panel finds a fundamental disconnect exists in that logic and requests the

Registration Committee explain how, in circumstances like this, the public is being served.

[77] The Panel’s concerns are not just for the devastating loss of licensure for the physicians involved as when a physician loses her or his license, many others suffer too. The physician’s patients lose their healthcare provider, the physician’s peers must shoulder a heavier burden when a colleague abruptly departs, hospitals and health authorities are strained, and the community loses a contributing member. There must be a better way and the Panel encourages the College to work with interested stakeholders to find it both for these Applicants and others.

“Brenda L. Edwards” Brenda L. Edwards, Panel Chair Health Professions Review Board

I agree:

“Lorne R. Borgal” Lorne R. Borgal, Panel Member Health Professions Review Board

I agree:

“David A. Hobbs” David A Hobbs, Panel Member Health Professions Review Board