Dr. Reddoch clearly failed to apply the requisite skill and knowledge to the care of Mary Ann Grennan. He failed in all respects to take the normal actions that one would expect of a physician to diagnose and treat a patient with a serious illness. The committee considered mitigating circumstances. These mitigating circumstances consisted of the expression of genuine remorse by Dr. Reddoch. Dr. Reddoch was not indifferent to his patient, visiting her in hospital twice during the short time she was under his care. It is noted that he continued to care for Ms. Grennan throughout the terminal aspect of her illness with diligence. Dr. Reddoch relied too much on the focus and misadvice of other physicians and nursing staff. The Yukon Council did not consider Dr. Reddoch was culpable for not making the diagnosis of botulism. The illness that caused the death of Mary Ann Grennan is rare and had not been heretofore reported in the Yukon Territory. The application of proper medical care and procedures reduces the mortality rate of this disease but does not prevent death in all cases. The purpose of an inquiry is to ensure that adequate medical practice standards are maintained.

The council is also mindful of the tragic circumstances of the outcome and is fully empathetic with the grief of the parents in this matter.

                                  [Emphasis mine.]

39. A neuroparalytic disease caused by the toxin produced in clostridium botulinum. There are only a small number of cases per year in Canada and there is a mortality rate of about 14% rising to 25% in the case of a first patient in an outbreak. There have been no known previous cases in the Yukon. Most food-borne outbreaks in Canada are due to home prepared foods, especially fermented foods and improperly stored seafood. The symptoms of food-borne botulism include ptosis, visual disturbances, vomiting and sore throat followed by descending symmetrical flaccid paralysis in an alert afebrile person. There are no routine laboratory tests available to diagnose botulism. Injection of serum into mice can be used in tertiary centres, otherwise diagnosis is on history and clinical grounds. Treatment with specific antitoxin only neutralizes toxins that are unfixed to tissue. Supportive therapy, especially with assisted ventilation, is the mainstay of treatment.

How common is botulism?

In the United States an average of 110 cases of botulism are reported each year. Of these, approximately 25% are foodborne, 72% are infant botulism, and the rest are wound botulism. Outbreaks of foodborne botulism involving two or more persons occur most years and usually caused by eating contaminated home-canned foods. The number of cases of foodborne and infant botulism has changed little in recent years, but wound botulism has increased because of the use of black-tar heroin, especially in California.

What are the symptoms of botulism?

The classic symptoms of botulism include double vision, blurred vision, drooping eyelids, slurred speech, difficulty swallowing, dry mouth, and muscle weakness. Infants with botulism appear lethargic, feed poorly, are constipated, and have a weak cry and poor muscle tone. These are all symptoms of the muscle paralysis caused by the bacterial toxin. If untreated, these symptoms may progress to cause paralysis of the arms, legs, trunk and respiratory muscles. In foodborne botulism, symptoms generally begin 18 to 36 hours after eating a contaminated food, but they can occur as early as 6 hours or as late as 10 days.

Differential Diagnosis

Botulism is frequently misdiagnosed....

A large, unintentional outbreak of foodborne botulism caused by a restaurant condiment in Canada provides a cautionary lesson about the potential difficulties in recognizing a covert, intentional contamination of food. During a 6-week period in which the condiment was served, 28 persons in 2 countries became ill, but all were misdiagnosed (Table 3). The 28 were identified retrospectively only after correct diagnoses in a mother and her 2 daughters who had returned to their home more than 2000 miles away from the restaurant. Four (14%) of the cases had been misdiagnosed as having psychiatric disease, including "factitious" symptoms.

Investigations

22. (1) The council, or any person as may be appointed for the purposes of this section by the council, may

Report of inquiry committee and action by council

24. (1) An inquiry committee shall find the facts of the matter to be inquired into and, in addition, shall find whether the charge or complaint has been proven, and shall report its findings to the council in writing as soon as practicable.

(2) At any time after it has commenced taking the evidence respecting a charge or complaint, the inquiry committee may of its own motion suspend from practice the member of the medical profession whose conduct is under inquiry until the next meeting of the council and shall promptly give written notice of the suspension to such member and the registrar.

(3) If the council, upon a report made under subsection (1), considers that a member of the medical profession practising medicine in the Yukon has been guilty of infamous or unprofessional conduct or that such member is suffering from a mental ailment, emotional disturbance, or addiction to alcohol or drugs that might, if such member continues to practice medicine constitute a danger to the public, the council may

The Yukon Medical Council has, pursuant to section 23(1) of the Medical Profession Act, S.Y.T. 1979 (2nd) c. 114, and amendments thereto appointed an Inquiry Committee, the members of which are as follows:

You are hereby given notice that the said Inquiry Committee will inquire into your conduct or capability or fitness to practise medicine in the Yukon with regard to the following charge, namely, that you, from about September 10, 1995 to about September 11, 1995, failed to take appropriate steps in the management, treatment and care of your patient, Mary Ann Grennan, at Whitehorse General Hospital, in that you did not:

I also want to make it clear at the outset, and I think this is obvious, that Dr. Reddoch, in the charges, is not blamed for missing a diagnosis of botulism. Dr. Assad candidly, again, an indication of his candidness, admitted that. There is nothing in the charges that relate, in this matter, to a failure to diagnose botulism.

The concern, of course, and it's through one of the questions that I put to Dr. Reddoch, is, did he go down the proper road that might have led him to that diagnosis, even accepting that if he'd gone down that proper road, and missed it, he wouldn't have been faulted? But this is a case about a doctor who didn't go down the proper road, in my submission to you.

[I have interpolated the names of the physicians and the times, where appropriate.]

Six B, Dr. Alton saw the patient at 09:30 hours on the 10th September.

Nine B, midnight, 10th-11th September, and 03:30 hours, 11th September, Dr. Alton saw the patient and wrote orders. Up to the morning of the 11th, Dr. Alton was the on-call physician.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

The committee then went on to establish the date on which Dr. Reddoch had in fact taken over the care of Ms. Grennan. We felt this was an important matter because, if it was at the time of his September 10th visit, there would have been an extra 16 hours during which time he could have developed his differential diagnosis and plan of treatment. If the date of take-over was not until September 11th, then we could not include any of the 10th in considering the charges against him.

In reaching our decision, we considered Dr. Reddoch's contention that it was not hospital practice to take over a patient's care without writing the order for this in the doctors orders - which he did not do until September 11th.

We then considered the contrary evidence of his written statement in the patient's discharge summary of December 21, 1995 that he assumed care on September 10th. We also considered his actions on September 10th of reviewing Ms. Grennan's chart, visiting her, then writing orders, a brief case history and a discharge plan on her chart.

It is our opinion that Dr. Reddoch did in fact become the responsible doctor for Ms. Grennan on September 10th and that his visit to her on that day was not a social visit, but a medical doctor-patient visit.

We do accept, however, that Dr. Reddoch was not "on call" for the weekend. Dr. Alton was the physician "on call" and visited the patient at midnight and gave orders at 03:30 hours on September 11th while she was on call at the hospital. This is the acceptable practice for physicians at the Whitehorse General Hospital and the nurses are aware of it.

Appeals

33. (1) Any person making a complaint in respect of which an inquiry has been held, or any person who has been affected by any decision of the council under sections 19 to 27, may appeal from the decision or direction of the council to a judge of the Supreme Court at any time within 30 days from the date of the decision or direction of the council.

(2) The judge may, upon the hearing of an appeal pursuant to subsection (1), reverse, confirm or amend the decision or direction of the council or order a further inquiry by the inquiry committee and make such other order, either as to costs or otherwise, as the judge may determine, including a direction that any registration struck off be restored or that any suspension or probation be terminated.

(3) An appeal lies from the decision of the judge to the Court of Appeal within 30 days thereafter, and the Court of Appeal has all the powers that may by this Act be exercised by the judge appealed from.

(4) An appeal taken from a decision or direction of the council shall be deemed to include an appeal from the findings and report of the inquiry committee.

(5)  Pending the outcome of an appeal pursuant to subsection (1), any suspension of a member of the medical profession from the practice of medicine, or any striking off of the name or other particulars of a member of the medical profession from any registry made pursuant to this Act shall remain in full force and effect unless otherwise ordered by the court.

(6) The council may, on such terms as it sees fit, stay the operation of any punishment or penalty imposed by it upon any person bringing an appeal under this section pending the outcome of the appeal, and the council may require the giving of reasonable security for its costs of the appeal and payment of any fine already imposed as a condition of granting the stay.

19 On the finding of unprofessional conduct Dr. Reddoch alleges:

41 For my part, I consider Dr. Reddoch to be bound by the position he took before the Council. Dr. Reddoch took this position after reflection and obviously, in consultation with his lawyer: "I should say that it's not an easy thing for Dr. Reddoch to instruct me to take this position with respect to the charge" (Transcript 38/4-8). Dr. Reddoch intended that the Council rely on his position as articulated by his lawyer. He could have made all the arguments to Council he made to this court. I assume he did not in order to demonstrate his professionalism in accepting the criticisms found in the report. Further, this acceptance of criticism would be of benefit to him in the penalty phase. The Council had no misapprehension about the position taken by Dr. Reddoch. As noted, it did not find it necessary to adjourn to arrive at the conclusion Dr. Reddoch's conduct was unprofessional (Transcript 146/22).

42 The Council relied on Dr. Reddoch's "expression of genuine remorse" in arriving at its decision. (The decision of the Yukon Council Characterization and Penalty Regarding Dr. Allan Reddoch, 19 August, 1998, page 1). I consider Dr. Reddoch's position before the Council to be analogous to that of someone who has pleaded guilty to an offence and asks that the plea to be taken into account in sentencing. I acknowledge that guilty pleas and consent judgments can be set aside, but that was not the position taken before me. Rather, it was said that the admissions were simply a recognition of the inevitable. That is, that the Council would accept the report of the Inquiry Committee and that Dr. Reddoch would be able to argue against those findings at this level. For the reasons expressed, I do not accept that characterization.

43 However, I intend to go on to consider each argument made by Dr. Reddoch. I do so because I may be wrong that Dr. Reddoch is bound by his position before the Council. Second, it is trite that with respect to jurisdiction, parties cannot consent to jurisdiction if it is not there.

26 Courts typically apply three standards of review to decisions of regulatory tribunals: correctness, unreasonableness, and patent unreasonableness. These standards are part of a spectrum of standards which range from "... correctness, at the more exacting end of the spectrum, and patently unreasonable, at the more deferential end".

B. SCOPE OF THE APPEAL

Section 62(3) of the Medical Practitioners Act, R.S.B.C. 1979, c. 254 provides that an appeal from a decision of the Council shall "be deemed to include an appeal from the findings and report of the inquiry committee".

Section 64 provides that the appeal shall be heard and determined "on the merits".

The Court's task under these provisions is similar to that of a Court of Appeal sitting on appeal from the judgment of a lower Court. Since the appeal is "on the merits", the Court is not confined to consideration of errors of law or breaches of natural justice in the course of the hearing or the decision. It is to consider all of the evidence and proceedings in the case and reverse the decision below if the findings of fact are clearly wrong or if some injustice occurred: Latimer v. College of Physicians & Surgeons of B.C. (1931), 55 C.C.C. 132, [1931] 3 D.L.R. 304 (B.C.C.A.). The failure of the tribunal below to consider material evidence may be as important as the evidence which it in fact considered: Hirt v. College of Physicians and Surgeons of B.C. (1985), 63 B.C.L.R. 185 (S.C.) at 206.

At the same time, the Court sitting on appeal will interfere with the findings of the tribunal below on matters of fact and credibility only in exceptional circumstances, since that tribunal is in the superior position of having heard the witnesses and observed their demeanour over the course of the hearing. In particular, in appeals from tribunals composed of professional persons considering professional conduct, the Court will be hesitant to substitute its opinion for that of the members of the tribunal below on matters involving professional competence, practise, or ethics.

The standards of proof required in cases such as this is high. It is not the criminal standard of proof beyond a reasonable doubt. But it is something more than a bare balance of probabilities. The authorities establish that the case against a professional person on a disciplinary hearing must be proved by a fair and reasonable preponderance of credible evidence: Regina v. Discipline Committee of the College of Physicians and Surgeons of the Province of Saskatchewan, Ex parte sen (1969), 6 D.L.R. (3d) 520 (C.A.). The evidence must be sufficiently cogent to make it safe to uphold the findings with all the consequences for the professional person's career and status in the community: Hirt v. College of Physicians and Surgeons of B.C., supra at p.206.

                                  [Emphasis mine.]

I. The chambers judge and the Committee erred in relying upon the evidence of Assad in determining the appropriate local standard of care.

II. The chambers judge and the Council erred in holding that the appellant should be disciplined for an isolated inadvertent act.

III. The chambers judge erred in holding that the standard of review was reasonableness, not correctness.

I doubt that there is a professional man or woman, no matter how generally competent and experienced, who has never had occasion to say to himself or herself, "How could I have been so blind?" Such might well have been the reflection of the defendant in Lankenau v. Dutton, [1999] 5 W.W.R. 71, 79 D.L.R. (4th) 705, 55 B.C.L.R. (2d) 218 (B.C.C.A.), who was, on the evidence, a most competent surgeon.