Court upholds revocation of physician’s licence after repeated care and conduct concerns over a lengthy period of time

Administrative law – Decisions reviewed – College of Physicians and Surgeons – Judicial review – Standard of review – Correctness – Professions – Physicians and surgeons – Billing matters – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties

Hanson v. College of Physicians and Surgeons of Ontario, [2021] O.J. No. 336, 2021 ONSC 513, Ontario Superior Court of Justice, January 27, 2021, L.A. Pattillo, F. Kristjanson and L.G. Favreau JJ.

The appellant sought to set aside the decision to revoke the appellant’s registration made by the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The appellant was a general practitioner who was the subject of several reviews and a criminal charge under the Criminal Code for theft over $5,000. In May 2013, the appellant pleaded guilty under the Health Insurance Act for failing to maintain records to establish that he provided insured services. As a result of the criminal proceedings, the College conducted an investigation that revealed concerns regarding the appellants record-keeping, patient assessment and treatment. The College also received a complaint where the investigation showed that the appellant misled the College resulting in a finding of professional misconduct.

The College and the appellant disagreed on the extent of the penalty, namely, whether revocation was appropriate in the circumstances. The appellant submitted the appropriate penalty was a 12-month suspension with 12 months of clinical supervision and limits on his practice. The College noted that the appellant was previously the subject of two prior discipline committee hearings and 11 decisions of the complaints committee where the College imposed suspensions, reprimands, cautions, clinical supervisions and/or reassessments.

In its decision, the Discipline Committee reviewed the appellant’s record and the principles of self-regulation including protection of the public, deterrence, maintenance of confidence in the regulation of the public, rehabilitation, proportionality and consistency with other decisions. Considering aggravating and mitigating factors and the principles of self-regulation, the Committee concluded that revocation of the appellant’s certification or resignation would satisfy the penalty principles. The Committee also required a reprimand and ordered the appellant to pay costs of the hearing.

The standard of review in where a penalty was at issue is whether the decision-maker committed an error in principle of that the penalty was “clearly unfit”.

The Court held that the Committee’s decision was not clearly unfit. Indeed, the Court found that the Committee was able to consider the appellant’s past disciplinary conduct. The Court rejected the appellant’s argument that he undertook a considerable rehabilitation effort between 2017 and 2020 and therefore his past conduct could be considered remediable. The Court found that the Committee gave the appellant an opportunity to rehabilitate his clinical and conduct concerns through various assessments. The Court also rejected the appellant’s argument that revocation was disproportionate having regard to the principles of self-regulation.

The Court concluded the penalty of revocation was not clearly unfit. The appeal was dismissed, and the College was entitled to its costs.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.