Administrative law – Physicians and surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Public interest – Suspensions – Stay of suspension – Court imposed conditions – Decisions of administrative tribunals – College of Physicians and Surgeons
Devgan v. College of Physicians and Surgeons of Ontario,  O.J. No. 517, Ontario Superior Court of Justice, February 11, 2004, Swinton J.
The Discipline Committee of the College of Physicians and Surgeons determined that the appellant committed various acts of professional misconduct, including charging excessive fees for services, having a conflict of interest in that he profited from medical products sold to patients, having made misrepresentations and unsupported claims respecting treatments, and having conducted himself in a manner with terminally ill patients that was disgraceful, dishonourable and unprofessional. It subsequently ordered that Dr. Devgan’s licence to practise be revoked. Dr. Devgan appealed the decision of the Discipline Committee.
Following the appeal, the College moved before Jennings J. to lift the automatic stay of the Order of the Discipline Committee. Jennings J. refused to lift the stay, finding that there was an arguable issue on appeal and that the appellant would suffer irreparable harm if the stay were lifted, because of his inability to earn income. However, with respect to the third element of the test for lifting a stay, the balance of convenience, Jennings J. noted that: “The public has a vital interest in being assured that bad doctors do not practise”. Therefore, he refused to lift the stay, so long as the following conditions were complied with:
(a) the Respondent will file proof of ordering the transcripts within seven days;
(b) the Respondent will not offer Carnivora, TVZ-7, or any like substances to patients diagnosed with cancer;
(c) the Respondent will not enter into any financial arrangements with patients other than for the proper payment of reasonable professional fees;
(d) the Respondent will not sell drugs or therapeutic preparations to his patients at a profit;
(e) the Respondent will co-operate with the College’s employees who may make reasonable inspections of his office, books and records of all kinds to ensure that the conditions are being complied with.
At the hearing, the evidence was clear that Dr. Devgan had made a number of false statements to College investigators when they attended at his office. It was also clear that Dr. Devgan had been treating a number of patients with cancer and that he had discontinued the charting of his treatments in order to prevent effective monitoring by the College.
The court held that by providing misleading information to College investigators Dr. Devgan had breached the Order of Jennings J. Dr. Devgan’s conduct, plus his charting and billing practices, made effective monitoring by the College impossible. There was a real concern that members of the public would be put at risk of harm if Dr. Devgan continued to practice. While Dr. Devgan would suffer a loss of income if the stay was lifted, the balance of inconvenience favoured the protection of the public interests through the lifting of the stay of the College’s decision and penalty. The motion to lift the stay was granted and costs were awarded to the College.
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