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Medical Professionals (RHPA) - Doctors Cases (3). Sharma v. College of Physicians and Surgeons of Ontario
In Sharma v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considers the 'least drastic means' principle when assessing an interim protective order:Issue 2: Is the Order overly broad?
[47] The parties agree that the ICRC must impose the least restrictive order necessary to protect the public. The order must only address the risk of harm. This principle of restraint recognizes that such interim orders are made when allegations remain unproven: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 at paras. 7 and 24; Morzaria v College of Physicians and Surgeons of Ontario, 2017 ONSC 1940 at para. 46. It is also well-accepted that an expert tribunal such as the ICRC is entitled to deference in the choice of restrictions: Morzaria at para. 26.
[48] Dr. Sharma submits that the Order effectively prohibits him from practicing as an anesthesiologist, rather than tailoring the terms to address concerns about attentiveness and charting. Although we were informed that Dr. Sharma has more recently, in August 2023, proposed to the College that he have full-time clinical supervision by a nurse and that a physician hold regular meetings with him and conduct chart review, that was not before the ICRC in the Decisions under review and we therefore do not address that proposal here.
[49] In its Decision of May 9, 2023, the ICRC stated that it was “aware that any order imposed should not exceed what is necessary to protect patients from harm” in concluding that the terms of the Order were necessary. In its Reconsideration Decision of June 23, 2023, the ICRC repeated what it said in the first Decision, and then addressed Dr. Sharma’s proposal that he be permitted to limit his practice to OHPs and to “work with a supervisor who will review a selection of charts on a weekly basis.” Dr. Sharma submitted, as the Reconsideration Decision sets out, that patients at OHPs “are typically lower risk” and that “this would be a better environment for him partially because almost all OHPs maintain paper charting.”
[50] The ICRC explained why it rejected these proposals, as follows:OHP Practice Setting
The Respondent's proposal to only practice in OHPs is not reassuring to the Committee. By the very nature of its setting, the OHPs have fewer safeguards than there are in a hospital setting (i.e., OHP practices are isolated, with less assistance available and no colleagues around to notice any problems or lapses, etc.).
Paper Charting
The Committee confirms that contrary to the Respondent's suggestions that almost all OHPs have a paper charting system, many OHPs have an EMR system in place. The Committee is puzzled as to why paper charting would provide comfort to the Committee when the EMR system allows for an audit trail that would discover any alterations made to the charts, as in the current case. [51] The ICRC also went on to explain the need for clinical supervision “at all times” in the following passage of the Reconsideration Decision:Given the Committee's ongoing concern that the charts may have been inappropriately altered, the Respondent's proposal for the supervisor to review a selection of charts is not sufficient to ensure patient safety. As such, the Committee confirms that clinical supervision at all times remains the least restrictive measure required in this case. [52] These reasons are intelligible, transparent and provide justification for the ICRC’s decision. The conclusions are reasonable, consistent with the objectives of the statute and the Code and are entitled to deference. . Sharma v. College of Physicians and Surgeons of Ontario
In Sharma v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered a JR by an anesthesiologist seeking to quash CPSO orders that "placed restrictions on Dr. Sharma’s ability to practice medicine, requiring that he do so only under the guidance of a clinical supervisor acceptable to the College at Dr. Sharma’s expense".
In these quotes, the court illustrates some orders issued as an interim precautionary matter while the CPSO concluded a investigation, and related procedures:[1] The applicant, Dr. Vijay Sharma, applies to this Court seeking to quash an Interim Order of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”), dated May 9, 2023 (the “Order”). The Order placed restrictions on Dr. Sharma’s ability to practice medicine, requiring that he do so only under the guidance of a clinical supervisor acceptable to the College at Dr. Sharma’s expense, and that he must be directly observed by the clinical supervisor when providing anaesthesia care. As Dr. Sharma is an anesthesiologist, the Order effectively prevents him from practicing pending the outcome of the investigation into his conduct.
[2] The Order was made without notice to the applicant pursuant to s. 25.4(7) of the Health Professions Procedural Code (the “Code”), Schedule II to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 75 (the “RHPA”) which empowers the ICRC to take interim action to suspend or restrict a physician's practice at any time during an investigation if it forms the opinion that a physician's conduct “exposes or is likely to expose patients to harm or injury.”
[3] The ICRC issued a Decision and Reasons for the Order dated May 9, 2023. It also considered and dismissed a request to vary the Order in a Decision and Reasons dated June 23, 2023 (the “Reconsideration Decision”). Dr. Sharma’s counsel then brought this application to quash the Order on an urgent basis.
[4] For the reasons that follow, the application is dismissed. In my view, the decisions of May 9, 2023 and June 23, 2023 are reasonable. The ICRC’s findings were based on evidence which could reasonably support the conclusion that Dr. Sharma’s conduct is likely to expose patients to harm or injury. I am not satisfied that the ICRC failed to address, or misapprehended, relevant evidence that would have led to a different conclusion. Further, while the Order is severe, the applicant has not satisfied the burden of showing that the ICRC acted unreasonably in not imposing a less restrictive order given its objective of protecting patients.
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[6] The College is the self-governing regulatory body for the medical profession in Ontario. Its powers and authority are contained in the RHPA and the Code. The ICRC is a statutory committee of the College which is responsible for considering the results of investigations and determining whether a matter should be referred to the Discipline Committee. The ICRC may also make interim orders at any time in an investigation if it forms the opinion that the conduct of a member exposes or is likely to expose patients to harm or injury. It can direct the Registrar to suspend the member or to impose terms, conditions or limitations on the member's certificate of registration. Such an order remains in place until varied by the ICRC, or until the matter is fully resolved either by the ICRC or the Discipline Committee.
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[29] In applying the reasonableness standard to orders made pursuant to s. 25.4 of the Code, the role of the College in regulating the medical profession is an important contextual factor, as the legislation and the Code must be interpreted and applied to protect the public: Pharmascience Inc. v. Binet, 2006 SCC 48 (CanLII), [2006] 2 SCR 513 at para. 36; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 (CanLII) at para. 101. This Court has stated a number of points to consider when reviewing these interim orders, including:. the principal objective of the order is the protection of patients: Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654 at para. 23;
. if there is a demonstrated likelihood that a doctor will expose their patients to harm and/or injury, the ICRC may act, and its remedial discretion is to be accorded deference: Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 at para. 51;
. a committee with expertise such as the ICRC must be given deference when imposing measures to protect the public: Luchkiw at para. 51; and
. such orders of the ICRC are reasonable if there is “some evidence” to justify imposing the order: Luchkiw at para. 51. The RHPA-CPSO procedures are usefully further described at paras 7-25. Further (at paras 32-46) the court assesses the applicant's argument that the tribunal "fundamentally misapprehended evidence", in light of the Vavilov 'reasonableness' doctrine.
. Khan v. College of Physicians and Surgeons of Ontario [numbered case cites can be viewed at the main link]
In Khan v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered Medicine Act policies regarding complementary alternative medicine:Complementary Alternative Medicine
[8] The use of treatments that are not part of generally accepted or “conventional” therapies or the use of “conventional medications” in an unconventional or “off-label” manner is governed by Policy Statement #3-11 issued by the College of Physicians and Surgeons of Ontario entitled “Complementary/Alternative Medicine.” The CAM policy recognizes the interest of patients in such treatments:In increasing numbers, patients are looking to complementary medicine for answers to complex medical problems, strategies for improved wellness, or relief from acute medical symptoms. Patients may seek advice or treatment from Ontario physicians, or from other health-care providers. [9] The policy recognizes the right of patients to investigate and consider such alternative therapies:Patients have the right to make healthcare decisions that accord with their own values, wishes and preferences. This includes decisions to pursue complementary/alternative medicine either as an adjunct to conventional medicine or instead of conventional medicine. [10] The policy explains what is expected of physicians in respect of those therapies:The College expects that all Ontario physicians, whether they practice conventional medicine, complementary/alternative medicine or some combination thereof, will practice the profession in a manner that is informed by evidence and science and in keeping with professional, ethical and legal obligations. [11] The policy outlines the principles and obligations of the profession with regard to this aspect of medical practice:This policy articulates how the principles and obligations for professional, competent and ethical medical practice applied to complementary/alternative medicine. Physicians are, however, expected to comply with all their legal, professional and ethical obligations and are advised to consult additional College policies.[3] [12] The policy distinguishes between “Conventional Medicine” and “Complementary/ Alternative Medicine”, as follows:Conventional Medicine: Refers to the type of treatment, diagnostic analysis and conceptualization of disease or ailment that is the primary focus of the curricula of university faculties of medicine. It is sometimes referred to as traditional medicine or science-based medicine and is the type of medicine that is generally provided in hospitals and specialty or primary care practice.
Complementary/Alternative Medicine (CAM): Refers to a group of diverse medical practices and products that are not generally considered part of conventional medicine. They are also sometimes referred to by other terms, such as non-traditional and non-conventional. The boundaries between CAM and conventional medicine are not absolute and some specific CAM practices may become incorporated into conventional medicine.[4] [13] The use of dichloroacetate (DCA), low dose naltrexone (LDN) and SAFE chemotherapy as treatments for cancer are not accepted as conventional medicine. They are examples of Complementary/Alternative Medicine. Their use in Ontario requires adherence to Policy Statement #3-11 (“Complementary/Alternative Medicine”).
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Complementary/Alternative Medicine must be based on science
[17] The fact that CAM treatments may fall outside the realm of conventional medicine does not relieve doctors who utilize and prescribe these therapies from looking for, relying on, and insuring, that they are founded on valid, reliable and tested science. Policy Statement #3-11 Complementary/Alternative Medicine makes this clear in respect of assessment, diagnosis and whatever therapeutic options are selected:All patient assessments and diagnosis must be consistent with the standards of conventional medicine and be informed by evidence and science.
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If physicians reach a CAM diagnosis, that diagnosis must be based on the clinical assessment conducted and other relevant information, be supported by sound clinical judgment and informed by evidence and science.
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Any CAM therapeutic option that is recommended by physicians must be informed by evidence and science…
Physicians must never recommend therapeutic options that have been proven to be ineffective through scientific study.[13] ....
[60] As it is the CAM policy assists in understanding the concerns raised by the actions of Dr. Akbar Khan. A policy may not prescribe the law, but it can and, in this case does, provide guidance as to the standard against which the actions of physicians will be assessed. Its application is clearly expressed:This policy applies to all physicians who are involved with CAM
The General Expectations section contains content that is applicable to all physicians.
The Specific Expectations section contains content that is applicable to three physician roles: physicians who practise CAM, either as the primary focus of their practice, or in addition to conventional medicine; physicians who practice conventional medicine only, but whose patients pursue CAM; and physicians who regardless of the nature of their practice, who wish to form professional affiliations with CAM clinics, therapies, or devices.[59] ....
(a) The CAM policy
[66] Physicians are expected to act in the best interests of their patients. One would expect this principle to be readily expected, accepted and understood. It is at the core of the CAM policy:When acting in a professional capacity, physicians must always be motivated by a regard for what is best for the patient. [67] Ultimately, it is for the patient to decide on her or his treatment protocol and that autonomy is to be respected by the physician:Patients are entitled to make treatment decisions and to set health care goals that accord with their own wishes, values and beliefs. This includes decisions to pursue or to refuse treatment, whether the treatment is conventional or CAM.
The College expects physicians to respect patients’ treatment goals and medical decisions even those with which physicians may disagree...[63] [68] Doctors are to refrain from exploiting patients and avoid conflicts of interest; that is to say using his or her professional capacity to dominate and influence patients and to further the physician’s own interests over that of the patient.[64]
[69] The CAM policy expresses the expectation that physicians “practicing CAM will do so competently, in keeping with their legal, professional and ethical obligations.” They are required to act “within the limits of their knowledge, skill and judgment and never provide care that is beyond the scope of their clinical competence.” Physicians providing CAM must conduct a clinical assessment of each patient and reach a “conventional diagnosis.” Any assessment, CAM diagnosis and therapy must be supported by sound clinical judgment and, as already noted in these reasons, informed by evidence and science. Physicians must “evaluate and analyze all available therapeutic options” and “always have valid informed patient consent to authorize therapeutic intervention.” In order for patient consent to be informed “the physician must always provide patients with accurate and objective information about the available therapeutic options. Physicians must never inflate or exaggerate the potential therapeutic outcome that can be achieved, misrepresent or malign the proven benefits of conventional or CAM treatment or make claims regarding therapeutic efficacy that are not substantiated by the evidence.” When asked for information about CAM, “physicians must respond in a professional manner within the limits of their knowledge, skill and judgment.”[65] . Khan v. College of Physicians and Surgeons of Ontario [numbered case cites can be viewed at the main link]
In Khan v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered a professional misconduct appeal under s.70 of the HPPC under the RHPA, here under the Medicine Act, 1991 (doctors):[55] The Health Professions Procedural Code at s. 95(1)(j) states:95 (1) Subject to the approval of the Lieutenant Governor in Council and with prior review of the Minister, the Council may make regulations,
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(j) defining professional misconduct for the purposes of clause 51 (1) (c) [56] Section 51(1)(c) of the Code provides:A panel shall find that a member has committed an act of professional misconduct if,
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(c) the member has committed an act of professional misconduct as defined in the regulations. [57] The authority to make a regulation defining professional misconduct is permissive. As it is, there is such a regulation albeit made under the Medicine Act. O. Reg. 856/93 is titled “Professional Misconduct”. Section 1(1) begins: “The following are acts of professional misconduct for the purposes of clause 51(1)(c) of the Health Professions Procedural Code...”. What follows is a list of 36 “acts” each of which would constitute professional misconduct, several of which could have relevance to this case.[58]
[58] The failure to take into account such a regulation would not mean there could not otherwise be a finding that a member of the College had committed an act or acts of professional misconduct. Put differently section 51(1) is not a complete code as to the constituents of professional misconduct. The opening words of the section 51(1) (“A panel shall find…”) indicates that a breach of the provisions of s. 51(1) compel the Tribunal to find that an act of professional misconduct has been committed; this does not foreclose the possibility that there are other circumstances where such a finding “may” be made.
[59] Even if this is wrong, in the context of this case, it does not matter. Among the findings made by the Tribunal is that Dr. Akbar Khan was not competent. Section 52(1) of the Code applies:A panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted. . Thibert v. Health Professions Appeal and Review Board [for numbered HPPC cites see link]
In Thibert v. Health Professions Appeal and Review Board (Div Court, 2022) the Divisional Court canvassed some basics of the RHPA/HPPC regime, here regarding doctors:The Process
[6] The College of Physicians and Surgeons of Ontario is responsible for the regulation of the medical profession in Ontario. It does so pursuant to the Regulated Health Professions Act (“RHPA”), the Health Professions Procedural Code which is Schedule 2 to the RHPA, the Medicine Act, 1991, regulations promulgated under those Acts and the by-laws of the College. The Health Professions Procedural Code, s. 10 prescribes the committees the College is to have. They include an Inquiries, Complaints and Reports Committee (“ICRC”).
[7] Where, as here, a complaint regarding the conduct or actions of a member of the College is received by the Registrar, a panel of members of that committee, as selected by its Chair, will investigate or consider a report of the Registrar.[2] In this case there was an investigation. Once an investigation is complete the panel may:1. refer any allegation of misconduct or incompetence to the Discipline Committee,
2. refer the member for incapacity proceedings,
3. require the member to appear before a panel of the committee to be cautioned,
4. take action it considers appropriate that is not inconsistent with the Regulated Health Professions Act, the Health Professions Procedural Code, the regulations or by-laws.[3] [8] In this case only paragraphs 3 and 4 are relevant. Where the decision is made under the authorization of either of those two paragraphs, the member or the person who filed the complaint may request that the Health Professions Appeal and Review Board (“HPARB”)[4] review the decision made by the ICRC.[5] On such a review the HPARB shall consider either or both of the adequacy of the investigation and the reasonableness of the decision.[6] . Nahas v. HPARB
In Nahas v. HPARB (Div Court, 2022) the Divisional Court considered an RHPA complaint against a doctor by a third party (a common law spouse of the patient), and how the patient's privacy rights were addressed in that situation:[40] The applicant submits that the ICRC should not have investigated a “third party” complaint (a complaint from someone other than the patient) and that neither the ICRC nor the HPARB took into account the patient’s interests.
[41] The legislation does not restrict complaints to those initiated by patients. The focus of the complaints process is on the conduct of the physician, which is consistent with the role of the College to regulate the practice of medicine in the service of and protection of the public interest. In Volochay, the Court of Appeal noted this statutory mandate when finding that that College was entitled to continue to investigate a complaint even though the complainant had withdrawn it: at para. 46. The ICRC was well within its mandate to investigate the complaint and took into account the patient’s point of view, noting that she was happy with the treatment that she received.
[42] The applicant also raised issues about the patient’s rights, submitting that the ICRC made no effort to justify the intrusion into the patient’s privacy rights. Leaving aside the issue of whether the applicant can raise those rights, the ICRC specifically noted that it took steps to minimize the amount of medical information in its reasons and the HPARB made a disclosure order protecting personal health information dated September 28, 2018. The HPARB also took steps in this court to protect personal health information. The patient was aware of the ICRC investigation and did not challenge the s. 75 investigation through which the applicant’s records of her care were obtained.
[43] We disagree with the applicant’s characterization that the ICRC “overrided” the patient’s rights rendering its decision unreasonable. The ICRC proceeded to fulfill its statutory obligation to investigate the complaint and both the ICRC and the HPARB took steps to address the impact on the patient’s personal health information. . Nahas v. HPARB
In Nahas v. HPARB (Div Court, 2022) the Divisional Court considered a doctor's JR of the HPARB dismissal of an appeal of an ICRC investigation and decision that he undergo "specified continuing education". The applicant raised the adequacy of the disclosure they received at the ICRC investigative stage as a fairness issue:[30] With respect to disclosure more generally, the extent of the duty of procedural fairness depends on a variety of factors as set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817.
[31] With respect to the nature of the decision being made, the ICRC performs a screening role. It screens complaints and decides if any further action is necessary: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 7416 (Div. Ct.) at paras. 37-38. It is not adjudicating in a formal way. It decides whether a complaint should be referred to a discipline hearing (where it would be adjudicated with considerable procedural requirements culminating in a formal hearing) or some other response should be made.
[32] The ICRC has procedural fairness obligations commensurate with its role. The ICRC must give the member notice of the complaint and an opportunity to make written submissions: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para. 47. Those steps were taken in this case.
[33] With respect to the statutory scheme, the Code contemplates that it is at the HPARB review stage that the applicant receives the complete record of what was before the ICRC. The applicant received that material, including the four documents, and had an opportunity to make submissions about them. At the HPARB, the main issue raised was whether the s. 75 investigation to obtain the medical records gave rise to reporting obligations. That was also the main focus in the applicant’s factum in this court. The applicant abandoned that ground for relief at the outset of the oral hearing in this court.
[34] On the question of whether there was adequate disclosure of the complaint at the ICRC stage, the applicant relies on Volochay, yet that case is not comparable. In Volochay, the member was not given notice of the complaint or an opportunity to respond to it. The complaints committee took steps without any submissions from the member. The applicant also relies on Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.). However, that case began with a notice of termination of employment. The conduct giving rise to the ICRC decision was collected in an investigation and not shared with the member. The applicant also relies on Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), which arose from a s. 75 investigation. In that case, the court noted at para. 12 that “it is adequate at the investigation stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” The inspector had interviewed numerous witnesses and although a summary was provided, it did not make the member aware of the substance of the allegations. The member was not given the names of the people or the details of the conduct discussed with them. These cases were all different in material ways.
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