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Medical Professionals (RHPA) - Cautions. Chaban v. Royal College of Dental Surgeons of Ontario
In Chaban v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered a JR by a dentist of a "decision of the of the Inquiries, Complaints and Reports Committee (the “Committee”) of the Royal College of Dental Surgeons of Ontario (the “College”)" to order them to "complete a specified continuing education or remediation program and to be verbally cautioned by a panel of the Committee" regarding sexually suggestive social media posts.
Here, the court sets out an example of disciplinary procedure:[9] On February 3, 2023, the Committee approved the College Registrar’s appointment of an investigator to examine Dr. Chaban’s conduct and determine whether he had engaged in professional misconduct under subsection 75(1)(a) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18.
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[16] On June 7, 2023, the Committee released the Decision. The Committee found that:1. The Videos were “sexualized, offensive and demonstrated a lack of professional judgment”.
2. The Videos “were directly linked to Dr. Chaban’s practice of dentistry”.
3. The First Video “appears to have been filmed in their dental office with [Dr. Chaban] in dental scrubs”.
4. The Videos “appear to contravene the Social Media Advisory by “[compromising] public confidence in the dental profession and the Dentist’s own professionalism.”
5. The Videos violate the Social Media Advisory’s directives that:
. “online “privacy” is never absolute;
. a dentist’s professionalism should extend to their private accounts; and that
. dentists should avoid posting material “that demonstrates, or appears to demonstrate, behaviour that might be considered unprofessional, inappropriate or unethical.” The Videos were unprofessional and inappropriate.
6. The Videos violate the Prevention Advisory, which “obliges dentists to maintain professionalism in their social media communication to avoid harm to their practice and their reputation”. The Prevention Advisory “gives guidance to dentists that they should not tell sexually suggestive jokes”. The Videos “were sexually suggestive”.
7. “Dr. Chaban’s response to the College’s investigation demonstrated a complete lack of insight into their conduct and understanding of their professional obligations”. ....
[20] The Committee’s conclusion was that Dr. Chaban’s conduct had raised “a concern or area of practice requiring remediation or significant improvement and that poses a moderate risk of directly affecting patient care or safety”. The Committee directed Dr. Chaban to complete, at his expense, a specified continuing education or remediation program. In addition, it required Dr. Chaban to attend for an oral caution.
Issues
[21] The key issue in this case is whether the Committee’s decision, including its concerns regarding Dr. Chaban’s conduct and its requirement for remediation was reasonable. . Spirou v. College of Physiotherapists of Ontario
In Spirou v. College of Physiotherapists of Ontario (Div Court, 2023) the Divisional Court considered RHPA 'cautions' as a professional remedy, in these quotes assessing JR 'reasonableness':C. Were the Cautions Unreasonable?
[36] The Applicants submit that the imposition of a caution was unreasonable, in that the ICRC provided no analysis.
[37] The ICRC provided a rational for the caution, including its finding below:[T]here is a reasonable evidentiary basis to caution the Registrant[s] in respect of the accuracy of invoicing in connection with C.A.R.E.’s demonstrated past practice of waiving insurance co-payments. In addition to the serious concern about accuracy of billings, the Committee decided that it would be reasonable to caution the Registrant[s] about the impact of inappropriate billings on patients and the profession. Insurers’ trust in the integrity of the profession is essential to ongoing access to benefits-covered care for patients. The de-listing of clinics (as happened temporarily with C.A.R.E.) and/or the de-listing of coverage for certain services or products, can negatively impact all physiotherapists as well as patients. In addition, insurers can punish patients for failing to notify the insurer that the co-payment was waived, potentially placing patients’ benefits at risk. [38] The ICRC’s reasons were lengthy and reasonable and are entitled to deference. This is not a case where the court should intervene on judicial review. . El Raheb v. Ontario College of Pharmacists
In El Raheb v. Ontario College of Pharmacists (Div Court, 2023) the Divisional Court considered the role of 'cautions' in the RHPA regulatory regime:[3] The Applicant argues that imposing a caution in this case was unreasonable because a caution is designed to be remedial not punitive and, given his prior disciplinary proceedings, no further remediation is necessary.
[4] We disagree. The purpose of a caution is to protect the public by taking steps to ensure that the conduct that gave rise to the caution does not occur again. The conduct in this case is similar to the conduct for which the Applicant has already been disciplined. Given the penalty imposed in that case, the Applicant submits that a further caution will accomplish nothing remedial. However, as the ICRC found, the conduct at issue in these proceedings is different from the conduct in the prior proceedings in several significant ways. First, the amounts involved are considerably greater – approximately $560,000 as opposed to approximately $150,000. Second, in the first proceeding the Applicant was disciplined for overbilling at one pharmacy. This proceeding involves overbilling at five pharmacies. Third, the conduct in the two proceedings occurred over different time periods. The more pervasive nature of the conduct at issue in this proceeding posed a greater risk to the public than the conduct at issue in the first proceeding.
[5] In the face of this reality the ICRC decided that, while the penalty imposed in the first proceeding was sufficient punishment, the public interest demanded that the Applicant be cautioned about the seriousness of the conduct at issue in this proceeding.
[6] The Applicant submits that it was unreasonable for the ICRC to conclude that there was any further need for the College to drive home to him the seriousness of his behaviour since he had voluntarily disclosed that behaviour to the College. That disclosure demonstrates that he has the necessary insight.
[7] Again, we disagree. The alleged disclosure took place in the context of a response by the Applicant that contained seriously misleading information. In addition, part of that disclosure consisted of a Debt Settlement Agreement, which also contained false information about how the overbilling occurred. This disclosure raises, rather than alleviates, concerns about the Applicant’s insight into his behaviour.
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