Medical Act

59(1) Council may appoint a Board of Inquiry for the purposes of determining any allegations of professional misconduct by a member or an associate member, or any allegation that a member or associate member is an incapacitated or unfit member

  

(a) on its own motion; or

(b) when the Review Committee or Complaints and Registration Committee recommends that a matter be referred in whole or in part, to a Board of Inquiry.

59(2) A Board of Inquiry shall be composed of at least three persons

(a) at least two of whom are members or former members of the College or the profession, and

(b) at least one of whom has never been a member of the College or the profession.

59(3) The Council shall appoint one of the members of the Board of Inquiry to be Chairman.

59(4) A majority of the members of a Board of Inquiry constitute a quorum, one of whom shall be a person who has never been a member of the College or the profession.

59(4.1) Only members of a Board of Inquiry who were present throughout the hearing shall participate in the Board's decision.

59(5) A Board of Inquiry may make rules under which the inquiry is to be held, and may do all things necessary to provide a full and proper inquiry.

59(6) No member of a Board of Inquiry shall communicate outside the hearing, in relation to the subject matter of the hearing, with a party or the party's counsel or representative, a complainant or a witness unless the other party has been given notice of the subject matter or the communication and an opportunity to be present during the communication.

59(7) The testimony of witnesses shall be taken under oath or solemn affirmation which the Chairman of the Board of Inquiry is authorized to administer, and there shall be a full right to examine, cross-examine and re-examine witnesses.

59(8) Upon the application of

(a) any party to the inquiry,

(b) the Chairman of the Board of Inquiry, or

(c) counsel for the College, the Council or the Board of Inquiry,

and on payment of the fees prescribed by the Rules of Court, the Registrar of the College shall sign and issue a Summons to Witness for the purpose of procuring the attendance and evidence of witnesses before the Board of Inquiry.

59(9) The rules of evidence in an inquiry, and the proceeding and penalties in the case of a failure to appear to any Summons to Witness issued under this section shall be pursuant to the Rules of Court governing civil trials in The Court of Queen's Bench of New Brunswick.

59(10) Unless waived by the parties, the Board of Inquiry

(a) shall have the proceedings and the evidence taken, transcribed and certified by an official court reporter or other stenographer duly sworn for that purpose; or

 (b) shall have the proceedings and the evidence recorded by a sound recording machine, and transcribed and certified by an official court reporter or a stenographer appointed by the Minister of Justice under subsection 4(1) of the Recording of Evidence by Sound Recording Machine Act.

59(10.1) For the purposes of subsection (10)

"official court reporter" means a court reporter appointed under the Court Reporters Act or a stenographer appointed under the Recording of Evidence by Sound Recording Machine Act;

"sound recording machine" means any device, machine or system approved by the Minister of Justice under the Recording of Evidence by Sound Recording Machine Act for the purpose of making a record of voice or other sound.

59(11) It is the duty of the member or associate member whose conduct or fitness to practise is being inquired into to appear at the inquiry, but in the event of non-attendance by such member or associate member, the Board of Inquiry upon proof by affidavit or statutory declaration of the service of the notice required by subsection (12), may proceed with the inquiry, and without further notice to such member or associate member, make a report of its findings and take such other action as it is authorized to take under this Act.

59(12) A notice of inquiry shall be served at least thirty days before the holding of the inquiry upon the member or associate member whose conduct or fitness to practise is being inquired into.

59(13) A notice of an inquiry shall state the subject matter of the inquiry and the time and place of the holding of the inquiry, and shall be signed by the Registrar, or the Chairman of the Board of Inquiry.

59(13.1) During the course of a hearing the Board of Inquiry may amend any minor defect or error in the notice of inquiry or complaint before the Board if the amendment is necessary to determine the merits of the allegations in the notice of inquiry or complaint.

59(14) A Board of Inquiry

(a) shall consider the allegations, hear the evidence and ascertain the facts of each case in such manner as it deems fit;

(b) may, at any time, make an order under subsection 59(14.6) or (14.8);

c) shall determine whether, on the balance of probabilities, the member or associate member is guilty of professional misconduct, or is an incapacitated or unfit member;

(d) where it finds that the member or associate member is guilty of professional misconduct, may recommend to Council that

(i) the licence or specialist's licence, or both, of the member or associate member be revoked, and that his name be stricken from the registers in which it is entered;

 

(ii) the licence or specialist's licence, or both, of the member or associate member be suspended

(A) for a fixed period, or

(B) for an indefinite period until the occurrence of some specified future event;

(iii) conditions, limitations or restrictions be imposed on the licence or specialist's licence, or both, of the member or associate member;


(iv) the member or associate member be reprimanded;


(v) such fine as the Board of Inquiry considers appropriate to a maximum of ten thousand dollars be paid by the member or associate member to the College;


(vi) the imposition of a penalty be suspended for such period and upon such terms as the Board of Inquiry designates; or


(vii) the member or associate member pay the costs of the Council in accordance with paragraph (e.1) and section 60; or

(e) where it finds that the member or associate member is an incapacitated or unfit member, may recommend to Council that

(i) the licence or specialist's licence, or both, of the member or associate member be revoked and that his name be stricken from the registers in which it is entered;


(ii) the licence or specialist's licence, or both, of the member or associate member be suspended

(A) for a fixed period, or

(B) for an indefinite period until the occurrence of some specified future event;

  

(iii) conditions, limitations or restrictions be imposed on the licence or specialist's licence, or both, of the member or associate member;

 

(iii.1) the final order of Council be suspended or postponed for such period and upon such terms as the Board considers appropriate;


(iv) that the member or associate member undergo such treatment or re-education as the Board considers necessary; or


(v) the member or associate member pay the costs of the Council in accordance with paragraph (e.1) and section 60;

(e.1) where it considers a complaint or complaints arising out of more than one incident, and finds that all of the complaints or incidents have not been proven, may recommend to Council that the member or associate member pay a portion of the costs of the Council in accordance with section 60 that the Board considers appropriate in the circumstances; and

(f) shall report its findings and recommendations in writing to Council.
59(14.1) If during the course of a hearing, the evidence shows that the member or associate member whose conduct is the subject of the hearing may be guilty of professional misconduct, or may be incapacitated or unfit to practise, for reasons different from or in addition to the subject matter of the hearing, the Board of Inquiry shall notify the member or associate member that it intends to consider the evidence and conduct and adjourn the hearing for any length of time that the Board considers sufficient to give the member or associate member an opportunity to respond to the new facts or subject matter of the hearing.

59(14.2) Subject to subsection (14.1), the Board of Inquiry may, for any reasons that may be revealed by the evidence, substitute the reasons for, or amend or add to, the complaint that it was appointed to hear and find a member or associate member guilty of professional misconduct or unfit to practise.

59(14.3) Evidence against a member or associate member is not admissible at a hearing of a Board of Inquiry unless the member or associate member is given, at least ten days before the hearing,

(a) in the case of documentary evidence, an opportunity to examine the documents;

  

(b) in the case of evidence of an expert, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence of the expert; and

(c) in the case of evidence of a witness, the identity of the witness and a written summary of the evidence of the witness.

59(14.4) Evidence on behalf of a member or associate member is not admissible at a hearing of a Board of Inquiry unless the College or its counsel is given, at least ten days before the hearing,

(a) in the case of documentary evidence, an opportunity to examine the documents;

 (b) in the case of evidence of an expert, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence of the expert; and

(c) in the case of evidence of a witness, the identity of the witness, and a written summary of the evidence of the witness. 59(14.5) A Board of Inquiry may, in its discretion, allow the introduction of evidence that is or may be inadmissible under subsections (14.3) or (14.4) and may make the directions it considers necessary to ensure that the member or the College is not prejudiced.

59(14.5)  A Board of Inquiry may, in its discretion, allow the introduction of evidence that is or may be inadmissible under subsections (14.3) or (14.4) and may make the directions it considers necessary to ensure that the member or associate member or the College is not prejudiced.

59(14.6) The Board of Inquiry may require the member or associate member to

(a) submit to physical or mental examinations by such qualified persons as the Board of Inquiry designates;

(b) submit to an inspection or audit of the practice of the member or associate member by such qualified persons as the Board of Inquiry designates;

(c) submit to such examinations as the Board of Inquiry directs to determine whether the member or associate member is competent to practise medicine;

(d) produce records and accounts kept with respect to the member’s or associate member’s practice including records, accounts and information submitted by the member or associate member to the Minister of Health under the Medical Services Payment Act.

59(14.7) Where the member or associate member fails to comply with subsection (14.6), the Board of Inquiry may suspend or restrict the registration, licence, or specialist licence, or both, of the member or associate member until the member or associate member complies.

59(14.8) The Board of Inquiry may require any other member or associate member to produce any records, documents and things in his or her possession or under his or her control that may be relevant to an investigation regarding the actions or conduct of a member or associate member of the College.

59(14.9) Where a member or associate member fails to comply with subsection (14.8), the Board of Inquiry may suspend or restrict the licence of that member or associate member until the member or associate member complies.

59(14.10)  No member, associate member or any other person shall conceal or withhold from the Board of Inquiry or destroy anything that may be relevant to this investigation.

59(14.11) The provisions of this section require the member, associate member or other person to produce documents notwithstanding any provision in any other Act or law relating to the confidentiality of medical, hospital, or health records.

59(15) When making recommendations to Council pursuant to paragraphs (14)(d) or (e), the Board may recommend a fine or other penalty in lieu thereof, or any combination of the penalties which are set out therein, or the Board may make such other recommendations as it considers appropriate, in accordance with the objects of this Act.

59(15.1) Notwithstanding the death of a member of a Board of Inquiry, or his disability or inability to act with respect to a hearing in progress, such hearing may continue with the remaining members whose findings and recommendations shall constitute and be for all purposes the report of the Board, or if the taking of evidence has not commenced at the time when such member of the Board dies or becomes disabled or unable to continue to act, the Council may in its discretion appoint another member to take the place of such member or reconstitute the Board of Inquiry.

59(16) Upon the Board of Inquiry reporting its findings and recommendations to Council,

 

(a) the Registrar shall cause to be served on the member or associate member and the person at whose request the Board was established, a copy of the report and recommendations of the Board; and

 

(b) Council may adopt the recommendations of the Board, or may make such other order as Council considers just.

59(17) The Registrar shall cause to be served on the member or associate member a copy of the order of the Council.

59(18) An order of the Council directing the Registrar to revoke, suspend or impose conditions or limitations on a member’s or associate member’s licence based on

(a) a decision of a Board of Inquiry finding the member or associate member guilty of professional misconduct or unfit to practise, or

 

(b) the member or associate member admitting that he is guilty of professional misconduct or that he is unfit to practise,

 

takes effect immediately notwithstanding any appeal or application for judicial review of the order or decision and continues in full force and effect until a court of competent and final jurisdiction has finally disposed of the matter.

59(19) A revocation or suspension of, or the imposition of conditions or limitations on, a member’s licence, an associate member’s licence or a specialist’s licence takes effect immediately and shall not be stayed by a court of competent jurisdiction and shall continue until the matter is finally disposed of by a court of competent and final jurisdiction if the findings of the Board of Inquiry or the order of Council are appealed or are subject to judicial review unless the member establishes to the court a prima facie case that he would suffer irreparable harm and that the public interest favours granting the stay.