{"id":5682,"date":"2018-12-04T17:34:46","date_gmt":"2018-12-05T01:34:46","guid":{"rendered":"https:\/\/news.consciencelaws.org\/?p=5682"},"modified":"2018-12-04T19:09:16","modified_gmt":"2018-12-05T03:09:16","slug":"court-challenge-raises-issue-of-reasonable-apprehension-of-bias","status":"publish","type":"post","link":"https:\/\/news.consciencelaws.org\/?p=5682","title":{"rendered":"Court challenge raises issue of “reasonable apprehension of bias”"},"content":{"rendered":"

Sean Murphy*<\/a><\/p>\n

Documents filed in an important Canadian court case bring into question the value and purpose of “public consultations” held by medical regulators, at least in the province of Ontario.<\/p>\n

In March, 2015, the College of Physicians and Surgeons of Ontario (CPSO) approved a highly controversial policy, Professional Obligations and Human Rights.\u00a0 <\/em>The policy requires physicians\u00a0 to facilitate services or procedures to which they object for reasons of conscience by making an “effective referral” to a colleague or agency willing to provide the service.\u00a0 A constitutional challenge to the policy was dismissed by\u00a0 the Ontario Divisonal Court in 2018.[1]<\/a> An appeal of that ruling will be heard by the Ontario Court of Appeal on January 21-22, 2019.<\/p>\n

Among the thousands of pages filed with the trial court are a number dealing with the public consultation conducted by the CPSO from 10 December, 2014 to 20 February, 2015.\u00a0 In response to its invitation to stakeholders and the public, the CPSO received 9,262 submissions about the proposal, the great majority of which opposed it.[2]<\/a><\/p>\n

College officials\u00a0 finalized the wording of the policy on 19 January, 2015,[3]<\/a>\u00a0\u00a0 a month before<\/em> the consultation ended; only about 565 submissions would have been received by then.[4]<\/a>\u00a0 727 submissions had been received\u00a0 by the time the policy was sent to the Executive Committee on 28 January,[5]<\/a>\u00a0 which promptly endorsed it and forwarded it to the College Council for final approval.[6]<\/a><\/p>\n

According to the briefing note supplied to the Council, by 11 February, 2015 the College had received 3,105 submissions.[7]<\/a>\u00a0 Thus, the final version of the policy was written and approved by the College Executive before<\/em> about\u00a0 90% of the submissions in the second consultation had been received.<\/p>\n

\"Submissions<\/p>\n

During the first 40 days ending 11 February,\u00a0the College received an average of about 18 submissions per day.\u00a0 Assuming someone spent eight full hours every\u00a0working day reading the submissions, about 22 minutes could have been devoted to each.\u00a0 Three staff members dedicated to the task could have inceased this average to about an hour, so the first 700 submissions could conceivably have received appropriate attention.<\/p>\n

\"Time<\/p>\n

However, this seems unlikely in the case of more than 8,000 submissions received later.<\/p>\n

By 11 February about 183 submissions were arriving at the College every day, increasing to about 684 daily in the last ten days of the consultation – one every two minutes.\u00a0\u00a0 A College staffer working eight hours daily without a break could have spent no more than about two minutes on each submission, and only about one minute on each of those received in the last ten days\u00a0 – over 65% of the total.<\/p>\n

A minute or two was likely sufficient if College officials deemed consultation results irrelevant because they had already decided the outcome.\u00a0 This conclusion is consistent with the finalization and approval of the policy\u00a0 by the six member College Executive (which included the Chair of the\u00a0 working group that wrote it [8]<\/a>).\u00a0 To do this weeks before the consultation closed was contrary to normal practice.\u00a0 CPSO policy manager Andr\u00e9a Foti stated that working groups submit revised drafts to the Executive Committee\u00a0 after<\/em> public consultations close[9]<\/a> – not before.<\/p>\n

One would expect government agencies that invite submissions on important legal and public policy issues would allow sufficient time to review and analyse all of the feedback received before making decisions. The CPSO’s failure to do so does not reflect institutional respect for thousands of individuals and groups who responded in good faith to its invitation to comment on the draft policy.\u00a0 Rather, such conduct invites a reasonable apprehension of bias that is unacceptable in the administration of public institutions.<\/p>\n