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HEALTH CARE PROFESSIONALS - Doctors - Government of - Disciplinary proceedings - Findings - Professional incompetence - Penalties - Revocation or cancellation of membership

Thursday, March 23, 2017 @ 8:45 AM  

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Appeal by a doctor from an order of the College finding him guilty of displaying an unfitness to practice medicine and the cancellation of his licence to practice medicine. For many years, the doctor was licenced to practice medicine in Manitoba and he maintained a general practice. In the 1990s, he was found guilty of professional misconduct and unfitness to practice after the College had received numerous complaints from his patients and received rewritten charts from the doctor, which he claimed were original. He was ordered, among other things, to use software which complied with the College’s guidelines for security of medical computer systems. In 2013, the College conducted a chart audit of the doctor’s practice. The audit could not determine which medical record system the doctor was using and found he appeared to be billing for psychotherapy sessions that were not evident in his records and was not keeping records of medications prescribed. In response, the doctor provided a peer analysis of his practice, which was critical of the audit report and praised the doctor and his practice. The College requested the names of the individuals who were involved in its preparation and the doctor responded that he was unable to provide the names on the basis that they were anonymous. During an interview with the Investigation Chair of the College, the doctor misrepresented who was consulted about the audit report, what information they were provided and how the peer analysis was prepared. He eventually admitted that he was sole author of the peer analysis. As a result of the audit and subsequent investigation, the College initiated several counts of professional misconduct, as well as one count of displaying an unfitness to practice. The doctor pleaded guilty to the four counts of professional misconduct, but disputed the allegation of having displayed an unfitness to practice medicine. The Panel found that the doctor made numerous misrepresentations with the intent to cause the College to cease its investigation, that he had installed the required software, but it had degraded and he had not taken steps to install new software until the College intervened, and that he had not maintained adequate records. The Panel concluded that those failures reflected serious problems relating to proper medical practice and patient care. It concluded that the doctor was ungovernable. Given the seriousness of the doctor’s behavior, his prior disciplinary record and the lack of evidence of his rehabilitative potential, the Panel cancelled the doctor’s licence and registration. The doctor appealed, arguing that the finding of unfitness to practice and the cancellation of his licence and registration were unreasonable. At the hearing of his appeal, the doctor sought to admit fresh evidence consisting of a number of documents relating to the computer system he had been using in his practice and the changes he had made to it after he was investigated by the College.

HELD: Appeal dismissed. The fresh evidence was inadmissible, as the doctor was in possession of the documents at the time of the hearing before the College and his counsel had requested that some of the documents at issue be excluded. Furthermore, the documents were not relevant. The decisions of the College were reasonable. The reasons given by the Panel clearly indicated the line of analysis that, based on the evidence, led to its conclusions. The failure of the doctor to maintain computer software placed his patients at risk, as there was a very real concern that their privacy could be compromised. The College did not err in also considering the doctor’s repeated and prolonged dishonesty and attempts to mislead the College in considering whether he was unfit to practice. While cancelling a licence to practice was a significant penalty, it was reasonable. The doctor was ungovernable because he had engaged in several types of serious misconduct, made various misrepresentations to the College which indicated a willingness to lie to avoid the College’s exercise of its regulatory jurisdiction and he showed a lack of insight given that he had previously committed similar misconduct.

Ahluwalia v. College of Physicians and Surgeons of Manitoba, [2017] M.J. No. 25, Manitoba Court of Appeal, F.M. Steel, D.M. Cameron and J. leMaistre JJ.A., January 26, 2017. Digest No. 3643-007