Report 416

DATE: October 29, 2021

PARTIES: Mr. A.L. (the “Student”) v. Faculty of Medicine

HEARING DATE: June 22, 2021, via Zoom

Chair:
Ms. Sara Faherty

Appearances:
For the Student Appellant:
Mr. Faisal Bhabha, PooranLaw
Ms. Madison Pearlman, PooranLaw
The Student

For the Faculty of Medicine:
Ms. Sari Springer, Litter Mendelson

The Student requested a closed hearing because of “the sensitive nature of some of the evidence that may be heard during the hearing.” Since the Faculty of Medicine (“Faculty”) did not object to this request, the Chair of the Academic Appeal Committee (the “Committee”) granted the request, and the Committee held a closed hearing.

The Student appealed the decision of the Faculty of Medicine Academic Appeal Committee which affirmed the Board of Examiners’ decision to dismiss the Student from the General Surgery Residency Program. The Student’s first ground of appeal relates to whether the division followed its policies and procedures, the next two grounds focus on the reasonableness of the decision, and the remaining three grounds are framed by the Student as violations under the Ontario Human Rights Code.

Regarding the first ground of appeal, the Student argued that the Faculty did not provide him with written reasons for dismissing him from the program within a reasonable timeframe. The Student pointed to section 7.2 of the “Guidelines for the Assessment of Postgraduate Residents of the Faculty of Medicine at the University of Toronto” (“Guidelines”), which notes that a resident must be informed in writing of the decision to dismiss them from the program. The Student argued that although the Guidelines do not include an expressed deadline to communicate a decision about a dismissal, this implies that a decision must be provided within a reasonable amount of time. The Committee found that given the complexity of the case, the need for careful review, and the number of people involved in making this critical decision, the time frame was not unreasonable. Based on the foregoing, the Committee concluded that the Faculty followed its policies in regard to the decision-making about the dismissal of the Student.

In his second ground of appeal, the Student challenged the fairness and reasonableness of the Faculty’s decision in two ways. First, he asserted that the Faculty did not take into account relevant evidence because it relied on the St. Michael’s Hospital Report, which had serious deficiencies and was therefore unreliable. Second, he was convinced that the process in front of the General Surgery Residency Program and the Board of Examiners did not adequately note individual patient records, which the Student believed were necessary in order to determine whether or not he had provided adequate care to his patients. The Committee noted that the decision from the Faculty of Medicine Academic Appeal Committee outlined that the Student’s Statement of Appeal was considered as well as other documents, including the Faculty’s Response, and the St. Michael’s Hospital Report. The Committee believed that the Resident Program Dismissal Report would have been a more complete document if it included a section summarizing the Student’s counter arguments, but the Committee could not conclude that a lack thereof meant that the Student’s points had not been considered. The Committee noted that the St. Michael’s Hospital Report contained a two-page synopsis that outlined the Student’s explanation for his behaviour and therefore, it would not be accurate to indicate that the Student’s responses were not included in the report. The Committee found that the decisions adequately considered the arguments made by the Student. Regarding the second challenge, the Student argued that the four medical files that were reviewed by the St. Michael’s Hospital Report are critical evidence that show his medical decisions were not unsafe for patients, and that they are partly exculpatory because they contained evidence that other medical professionals working on the files also made errors on those days. The Committee noted that the St. Michael’s Hospital Report outlined the positive outcomes for the four patients by noting that due to the deliberate intervention of others, no harm was inflicted on the patients. The Committee found that the Student was not barred from presenting his arguments about individual outcomes of the patients he treated as part of his appeal of his dismissal. It concluded that the decision-makers were free to assign to the arguments about ultimate patient outcome as much or little weight as they deemed appropriate.

The final three grounds of appeal touch on allegations that the Faculty’s dismissal violated the Ontario Human Rights Code. The Committee discussed this ground in four parts. First, the Committee considered whether the Student’s disability was appropriately accommodated by the Faculty. The Committee reviewed four letters pertaining to the Student’s disability, medication regimen, and accommodations. The Committee noted that the Student’s academic accommodations consistently stressed his need for close mentorship and detailed feedback. The Student argued that he did not get this. The Student further suggested that if academic performance issues can be traced back to his disability, then the Faculty cannot act on those issues because to do so is to discriminate against him on the basis of his disability. The Committee remarked that the University has an obligation to put accommodations in place that allow students to meet academic standards, but it is not to disregard or waive those academic standards for students with disabilities. The Committee noted that based on the assurances outlined in the Student’s documents, the Faculty provided the prescribed academic accommodations that were intended to allow the Student to perform up to the standards of the program. The Student took the position that the development of his accommodations should have been more collaborative. The Committee agreed that an ongoing collaboration with students is preferable to occasional points of connection that was outlined by the Faculty. The Committee observed that although the evidence presented by the Student and the Faculty did not present a closely collaborative narrative, it was not possible for the Committee to determine whether that was a possibility during the years the Student was at the Faculty. The Committee noted that the quantity and quality of feedback the Student received was copious as there were many In Training Evaluation Reports (“ITERs”) that document the detailed written feedback for the Student. Many comments outlined in the ITERs reference oral feedback as well. Furthermore, the comments in the ITERs created the impression that there was ongoing communication with the Student about his performance. Also, several specific comments made it clear that the authors of the ITERs were sharing their thoughts with the Student during his shifts. The Committee was of the view that the Faculty met the accommodations set forth in the Student’s letters.

Second, the Committee considered whether the Faculty should have provided a shorter on-call period for the Student and whether the Student’s medication regime was optimized. The Student asserted that many of the problems identified in his performance were related to his disability. He further asserted that the demanding shift schedule negatively affected his performance. Furthermore, he argued that the irritability and lack of sleep due to the shift schedule were related to his disability and therefore, should have been accommodated. The Committee noted that the Student did not have an accommodation regarding shortened shifts or longer breaks between shifts. The Committee found that the argument related to the Student’s shifts was not developed or documented, and it was not possible to find that he should have been given shorter on-call periods. Furthermore, the Committee believed that the other incidents, even without the one connected to irritability, could have supported the Faculty’s decision. Regarding the optimization of the Student’s medication regime, the Committee noted that it is unable to rule on whether the Student’s medication regime was optimized. It further noted that it can only be the responsibility of the Student to monitor his personal well-being and take steps to optimize medications. The same issues that led to the Student’s removal from the program were identified for years and pointed out in multiple ITERs. If the Student believed these issues were related to his disability and could have been improved by adjustments to his treatment, then he was obligated to make those changes. It could not have been the duty of the Faculty to optimize his medical treatment.

Third, the Committee reviewed whether the Faculty was obligated to provide the Student with a new referral to the Board of Medical Assessors. The Committee noted that there was not any ongoing discussion or communication concerning the Student’s medication at the time of the incidents that occasioned the Student’s dismissal. The post hoc assertion that the Student was not properly medicated was not persuasive to the Committee. The Committee noted that the Student was consistently underperforming in his rotations and receiving feedback about his failure to meet expectations. The Committee was of the view that requesting appropriate accommodation and adhering to an appropriate health-care regime was the responsibility of the Student. The Faculty’s obligation to connect students with appropriate resources was met by the Faculty when it referred the Student to Accessibility Services and Dr. Bilkey, and it could not have been responsible for monitoring the Student’s medication regime. Lastly, the Committee considered whether the manner and timing of the Student’s dismissal were appropriate. Upon extended review and consideration of the evidence, the Committee found that the Student’s dismissal was years in the making. The Student suggested that prejudice against him due to his disability led the Faculty to pretend to have patient safety concerns, but those concerns were not real or severe enough to warrant the dismissal. The Student asked the Committee to infer discrimination in the decision even though it may not be apparent in the phrasing or reasoning of the decision. The Committee noted that while it was mindful of the insidiousness of discrimination, it was not willing to make such an inference in these circumstances as it can only make judgements based on evidence and clearly articulated standards. It further noted that the Student did not provide any evidence of prejudice or ill will against him. The Student further argued that the comments made in the ITERs and orally to the Student that he should consider changing medical fields was evidence of prejudice against him. The Committee noted that although it was aware that arguing that a candidate for a role is “not a good fit” can be a strategy to cover up bias, the evidence in this case supports a different interpretation because the remarks were never that he should leave the Faculty but rather that he might perform better in a different practice area. The Student finally argued that the criticism he received from other members of the medical team was a result of negative stereotyping. The Committee concluded that the medical professionals who voiced concerns about the Student’s decisions and behaviour during the shifts in question could not all have been motivated by stereotypical thinking, since the complainants were not aware of the Student’s disability. Further, the Committee noted that this was not a sudden or peremptory dismissal since there were multiple failed rotations in his first year, another failed rotation in the second year, more failed rotations in the third year, and an abundance of specific negative feedback, outlining the same issues.

The Student requested eight remedies: the first two ask the Committee to find that the Board of Examiners’ decision was unreasonable, breached procedural fairness, and was discriminatory. The Committee, in reviewing the Faculty of Medicine’s Appeal Committee decision, did not find it to be any of those. The next three requests are for the Committee to expunge records of the reports that recommended the Student’s dismissal, expunge the St. Michael’s Hospital Report and expunge any negative evaluations of the Student. The Committee noted that it does not have the authority to expunge those reports and evaluations. The sixth request is for monetary damages, which the Committee cannot grant. The seventh request is for the Committee to direct members of the Faculty to undergo disability sensitivity training, including specific training on how to adapt residency requirements to meet the needs of residents with disabilities. The Committee commented that although it cannot “direct” such training, it would support it. Finally, the Student asked the Committee to order an external review to investigate and report on systemic barriers for persons with disabilities within the Faculty. The Committee noted that it does not have the authority to order such a review and did not find evidence to support the argument that such a review would need to be external in order to be valid.

The decision of the Faculty of Medicine’s Faculty Council Appeals Committee was a reasonable application of policies designed to safeguard patient safety, and there was no evidence of discrimination or bias in the application of these policies to the Student. Appeal dismissed.