Medical Act
Section 59
59(1) Council may appoint a Board of Inquiry for the purposes of determining any allegations of professional misconduct by a member, or any allegation that a member is an incapacitated or unfit member
(a) on its own motion;59(2) A Board of Inquiry shall be composed of at least three persons
(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; or
(c) when a complainant or a member of the College make a request in writing pursuant to subsection 58(11).
(a) at least two of whom are members or former members of the College or the profession, and59(3) The Council shall appoint one of the members of the Board of Inquiry to be Chairman.
(b) at least one of whom has never been a member of the College or the profession.
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) When a Board of Inquiry is established as the result of a request therefor under subsection 58(11) Council may direct that the person making such request give security for the costs of the Council and of all parties to the inquiry, in such amounts and at such times and in such manner and form, as the Council shall direct.
59(6) 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(6.1) 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,and on payment of the fees prescribed by the Rules of Court, the Registrar of the College or any Clerk of the Court of the Court of Queen's Bench of New Brunswick shall sign and issue a Summons to Witness for the purpose of procuring the attendance and evidence of witnesses before the Board of Inquiry.
(b) the Chairman of the Board of Inquiry, or
(c) counsel for the College, the Council or the Board of Inquiry,
59(9) The rules of evidence in an inquiry, and the proceeding and penalties in the case of disobedience to any Summons to Witness, shall be the same as in civil cases in The Court of Queen's Bench of New Brunswick.
59(10) The Board of Inquiry
(a) shall have the proceedings and the evidence taken in shorthand, transcribed and certified by an official court reporter or other shorthand reporter duly sworn for that purpose; or59(10.1) For the purposes of subsection (10)
(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.
"official court reporter" means a shorthand reporter appointed under the Shorthand Reporters Act or a court reporter appointed under the Court Reporters Act or a stenographer appointed under the Recording of Evidence by Sound Recording Machine Act;59(11) It is the duty of the 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, 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, make a report of its findings and take such other action as it is authorized to take under this 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(12) A notice of inquiry shall be served at least seven days before the holding of the inquiry upon the member whose conduct or fitness to practise is being inquired into upon a complainant, and upon any person who has requested that a Board of Inquiry be established under subsection 58(11).
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;59(14.1) If during the course of a hearing, the evidence shows that the member whose conduct is the subject of the hearing may be guilty of professional misconduct, or may be incapacitated or unfit to practice, for reasons different from or in addition to the subject matter of the hearing, the Board of Inquiry shall notify the 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 an opportunity to respond to the new facts or subject matter of the hearing.
(b) in the case of complaints that a member is an incapacitated or unfit member(i) may require the member to submit to physical or mental examinations by such qualified persons as the Board designates, and if the member fails to submit to such examinations the Board may recommend to Council that the licence or specialist's licence, or both, of the member be suspended until he does so;(c) shall determine whether the member is guilty of professional misconduct, or is an incapacitated or unfit member;
(ii) may require the member to undergo such clinical or other examinations as the Board designates to determine whether the member has adequate skill and knowledge to practise medicine, and if the member fails to undergo such examinations the Board may recommend to Council that the licence or specialist's licence, or both, of the member be suspended until he does so; and
(iii) may require the member to produce records and accounts kept with respect to his practice, and if the member fails to produce such records and accounts, the Board may recommend to Council that the licence or specialist's licence, or both, of the member be suspended until he does so;
(d) where it finds that the member is guilty of professional misconduct may recommend to Council that(i) the licence or specialist's licence, or both, of the member be revoked, and that his name be stricken from the registers in which it is entered;(e) where it finds that the member is an incapacitated or unfit member, may recommend to Council that
(ii) the licence or specialist's licence, or both, of the member be suspended(A) for a fixed period or(iii) conditions, limitations or restriction be imposed the licence or specialist's licence, or both, of the member;
(B) for an indefinite period until the occurrence of some specified future event;
(iii.a) the final order of Council be suspended or postponed for such period and upon terms as the Board considers appropriate; or
(iv) the 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 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 pay the costs of the Council in accordance with paragraph (e.1) and section 60; or(i) the licence or specialist's licence, or both, of the member be revoked and that his name be stricken from the registers in which it is entered;(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 pay a portion of the costs of the Council in accordance with section 60 that the Board considers appropriate in the circumstances; and
(ii) the licence or specialist's licence, or both, of the member be suspended(A) for a fixed period, or(iii) restrictions be imposed on the licence or specialist's licence of the member for such period and subject to such conditions as the Board considers necessary;
(B) for an indefinite period until the occurrence of some specified future event;
(iv) that the member undergo such treatment or re-education as the Board considers necessary; or
(v) the member pay the costs of the Council in accordance with paragraph (e.1) and section 60;
(f) shall report its findings and recommendations in writing to Council.
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 guilty of professional misconduct or unfit to practice.
59(14.3) Evidence against a member is not admissible at a hearing of a Board of Inquiry unless the member is given, at least ten days before the hearing,
(a) in the case of documentary evidence, an opportunity to examine the documents;59(14.4) Evidence on behalf of a 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,
(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.
(a) in the case of documentary evidence, an opportunity to examine the documents;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.
(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(15) When making recommendations to Council pursuant to paragraphs (s) or (e) of subsection (14), 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 my make such other recommendation 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 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 and the person at whose request the Board was established, a copy of the report and recommendations of the Board; and59(17) The Registrar shall cause to be served on the member and the person at whose request the Board was established a copy of the order of the Council.
(b) Council may adopt the Recommendations of the Board, or may make such other order as Council considers just.
59(18) An order of the Council directing the Registrar to revoke, suspend or impose conditions or limitations on a member's licence based on
(a) a decision of a Board of Inquiry finding the member guilty of professional misconduct or unfit to practice, ortakes effect immediately despite 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.
(b) the member admitting that he is guilty of professional misconduct or that he is unfit to practice,
59(19) A revocation or suspension of, or the imposition of conditions or limitations on, a member's licence or specialist 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.