The Appellant, Dr. D, appealed to the Ontario Superior Court from the decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) whereby the Committee found Dr. D. to have engaged in professional misconduct in relation to his care and treatment of three terminally ill cancer patients. The Appellant also appealed the consequent decision to impose the penalty of revocation. The appeals against both the convictions and the penalty were dismissed.

Administrative law – Physicians and surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Decisions of administrative tribunals – College of Physicians and Surgeons – Double jeopardy – Judicial review – Procedural requirements and fairness – Evidence – Standard of review – Reasonableness simpliciter

Devgan v. College of Physicians and Surgeons of Ontario, [2005] O.J. No. 306, Ontario Superior Court of Justice, January 31, 2005, E.F. Then, R.T.P. Gravely and W.L. Whalen JJ.

The allegations were that Dr. D. misrepresented the efficacy of alternative treatments to three terminally ill cancer patients and charged each of these patients an exorbitant fee which was incommensurate with his services.

The charges against Dr. D. were that:

1)   he failed to maintain the standard of practice of the profession;

2)   he had a conflict of interest;

3)   he made a misrepresentation respecting a remedy, treatment or device;

4)   he made a claim respecting the utility of a remedy, treatment, device or procedure other than a claim which can be supported as reasonable professional opinion;

5)   he falsified a record relating to his practice;

6)   he charged a fee that was excessive in relation to the service performed;

7)   he committed an act or omission relevant to the practice of medicine that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and

8)   he engaged in conduct unbecoming a physician.

Dr. D. was convicted of all charges with the exception of falsifying his records.

Dr. D. argued on appeal that the decision of the Committee was unreasonable as the allegations were not supported by the evidence to the required standard of proof and that the Committee erred in excluding or failing to properly take into account relevant evidence on the central issues. Dr. D. also submitted that even if some allegations had been made out, the penalty of revocation was excessive.

The court held that section 70 of the Ontario Health Professions Procedural Code provided for an appeal of the Discipline Committee’s decision on questions of law or fact or mixed questions of law and fact and that it was established that the standard of review applicable on such appeals was reasonableness simpliciter.

The court held that there was ample evidence of egregious exaggerations of the efficacy of his treatments on the part of Dr. D. in his representations to his patients and a corresponding failure to adequately and fairly outline both the advantages and limitations of conventional and unconventional treatment. It was, in any event, appropriate in the circumstances for the court to defer to the findings of the Committee on the issue of credibility and there was no reason to interfere.

The failure of the Committee to provide reasons as to why Dr. D.’s evidence was disbelieved did not constitute reversible error. It was evident that the Committee implicitly rejected the evidence of the Appellant which was in stark contrast to that of the Complainants.

The Committee did not err in excluding the evidence of some of Dr. D.’s other patients as to their own opinion with respect to the benefits derived from Dr. D.’s treatments and what they may have been told by Dr. D. In the context of the Appellant seeing four to five cancer patients a week over a number of years the proffered evidence that he did not mention a cure on three or four specific occasions did not amount to evidence of any habit or routine on the part of Dr. D. to never mention a cure.

The court held that there was nothing unreasonable in the approach that the Committee took in concluding that Dr. D.’s fees were excessive in relation to the services performed. There was overwhelming evidence that the medications and vitamins were but a small fraction of the fees charged. The evidence was also clear that Dr. D. took virtually no part in administering the treatments. It was open to the Committee to weigh this evidence as well as the evidence proffered by Dr. D. in light of the Committee’s own expertise which drew upon its knowledge of medical matters and the practice and procedures of the profession.

The court rejected Dr. D.’s argument that by finding Dr. D. guilty of both the specific offences as well as the blanket clause set out in charge no. 7, Dr. D. was subjected to double jeopardy. The court held that there was no breach of the rule against multiple convictions in this case. While the factual basis of the individual allegations, taken together, was the same as allegation (7), the constituent elements of the offences were different.

With respect to the penalty of revocation, the court held that applying “a somewhat probing examination” of the Discipline Committee’s analysis and decision, the reasons given by the Committee, taken as a whole, were tenable, grounded in the evidence and supportive of revocation as the choice of sanction. There was no error in principle in revoking the licence of a physician who charged excessive fees to desperate people by promising cures which were untenable and improper.

The appeals against both the convictions and the penalty were therefore dismissed.

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