DISCIPLINE COMMITTEE OF THE
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO
IN THE MATTER OF
the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and the Traditional Chinese Medicine Act, S.O. 2006, c.27
Decision Date:
January 17, 2019
Indexed as:
Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v Nathalie Yan, 2019 ONCTCMPAO 1
Panel:
Maureen Hopman
Chairperson, Public Member
Jin Qi (Jackie) Zeng
Professional Member
Barrie Haywood
Public Member
BETWEEN:
THE COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO
-and-
NATHALIE XIAN YI YAN
Reg. No. 610
Robin McKechney for the College
Member, Self-Represented
Edward Marrocco
Independent Legal Counsel
DECISION AND REASONS FOR DECISION – PENALTY AND COSTS
Background
1In a previous decision dated October 1, 2018, the Panel found that the Member, Nathalie Xian Yi Yan, had committed acts of professional misconduct. As a result of those findings (the “merits portion of the hearing”), a further hearing was held on December 14, 2018 on the issues of penalty and costs.
2The Member was present at the December 14 hearing.
3At the merits portion of the hearing the Member was represented by a paralegal named John Tao. However, the Member represented herself at the December 14 penalty hearing. At the beginning of the December 14 hearing, the Panel asked the Member if Mr. Tao or any other representative would be attending and offered to hold the matter down if necessary. The Member stated that she wished to proceed without Mr. Tao or any representation and would be representing herself. The Member was asked if she would like to adjourn to another date in order to seek representation. The Member declined this offer and confirmed that she wished to proceed self-represented.
4After conducting the hearing on December 14, the Panel reserved its decision in order to deliberate. The Panel has arrived at a decision. These are the Panel’s decision and reasons on penalty and costs.
Evidence and Submissions of the Parties on Penalty
Submissions of the College on Penalty
5The College sought the following penalty in this case:
- a reprimand;
- a twelve (12) month suspension1; and
- Terms, conditions and limitations to be placed on the Members’ certificate of registration as follows:
- Completion of the PROBE Course offered by CPEP (to address charging fees based on racial descent and other ethical issues);
- Completion of a record keeping course;
- Delivery of an essay on the importance of professionalism and ethics; and
- Imposition of practice monitoring or a form of assessment by the College after the Member resumes practice following any suspension.
6In submissions, College counsel specifically adverted to a number of principles which, in counsel’s contention, were germane to the within matter. College counsel adverted for example to the need for any penalty to promote both specific and general deterrence as well as the importance of remediation and rehabilitation.
7College counsel emphasized that there are different types of circumstances which can be analogized to the various heads of professional misconduct found in this matter. Counsel submitted that any penalty ultimately imposed must not be disproportionate to the misconduct itself. Put differently, College counsel submitted that - as the Panel considers the discrete heads of misconduct in this matter - the total penalty must remain proportionate and within a reasonable range of total penalties which would otherwise apply had the various types of misconduct found in this case occurred independently. To do otherwise would be unfair to the Member.
8Lastly, College counsel submitted that some of the misconduct found in this matter can be appropriately redressed by the imposition of terms, conditions and limitations on the Member’s certificate of registration requiring the completion of essays and/or courses in ethics and record keeping.
9College counsel took the Panel through a series of decisions in other matters which, in counsel’s submission, were applicable in part by analogy to the within matter. College counsel acknowledged that it was not always easy to find exact cases to match the allegations in a particular matter, but referred instead to what counsel perceived as the relevant points, suggesting they may assist in setting an appropriate total penalty. College counsel presented cases argued as either on point or analogous to the following heads of professional misconduct as follows:
a. Charging a Misleading Patient Fee
i. College of Nurses of Ontario and Melissa Visca. In this case a health professional stole funds from a patient. The resulting penalty was a six (6) month suspension. The College argued by analogy that the Member took advantage of her client, Ms. Abdelhadi, by charging her a purportedly mandatory patient registration fee at a time when Ms. Abdelhadi was in distress. Ms. Abdelhadi subsequently learned there was no patient registration fee mandated by the College and she sought and obtained a refund from the Member.
ii. College of Nurses of Ontario and Sherry Lee Reaume. In this case a credit card was stolen from a patient. The member in that matter pleaded guilty to theft and fraud and paid restitution. The member received a six (6) month suspension along with certain terms, conditions and limitations. Once again, College counsel argued that the Member in the within matter, by analogy, took advantage of a vulnerable patient.
iii. College of Massage Therapists of Ontario and Becky Arnold, RMT. In this case, a member was found to have, among other things, falsified records and submitted an account or charge for services that the member knew was false or misleading. The penalty after an agreed statement of facts and joint submission on penalty in that matter was six (6) months suspension.
10College counsel conceded that the above cases are not entirely analogous to the within case. They are only comparable in part. College counsel seeks a suspension of five (5) months in relation to the Panel’s finding that the Member charged a misleading fee of $240 to Ms. Abdelhadi.
b. Failure to Provide Information Regarding Medication
11Patients cannot provide informed consent if they do not know what ingredients are in the products dispensed to them by practitioners. College counsel noted in submissions that medications can have side effects and it is critical that ingredients be disclosed in an open and transparent manner, without the imposition of an additional fee.
12College counsel provided two cases from other regulators in which members failed to provide information sufficient to permit their patients to provide informed consent:
i. College of Massage Therapists of Ontario and George Tsioros RMT 2012. In this case the member provided a pectoral massage to a patient without explaining the basis for doing so. This took away the patient’s ability to provide informed consent. The case featured other components and was resolved by way of an agreed statement of facts. The member was suspended for three (3) months. College counsel submitted that this case is analogous in part to the within matter in that this Panel found that the Member provided a bottle of pills to undercover investigator, Ms. Yee, which neither named the contents inside nor described the ingredients. By failing to provide those ingredients or even the name of the product being dispensed, the Member prevented a patient from being able to make inquiries or provide informed consent. College counsel submits that medication and services are analogous in this regard.
ii. College of Nurses of Ontario and Ann Marie Desrosiers, 2014. This matter related to the dispensation of medications without sufficient authorization. On a joint submission on penalty, the member admitted to the allegation and received a nine (9) month suspension.
13The College again concedes that the above two cases are not entirely analogous to the within matter but intended to give the Panel some notion of the range that arguably applies to this particular form of misconduct in other regulated professions. College counsel submits that a two (2) month suspension is appropriate in this case in relation to the Panel’s finding that the Member failed to provide information regarding medication to a patient.
c. Improper use of the Doctor Title
14The College submitted four (4) cases on penalty in respect of the Panel’s finding that the Member improperly used the doctor title:
i. College of Audiologists and Speech-Language pathologists of Ontario and Brenda Berge, 2014. The member in the Berge case held herself out as a doctor. After the Panel in that matter found a willing and persistent breach, it imposed a three (3) month suspension with one (1) month remitted.
ii. The College of Massage Therapists of Ontario and Michael Faklan, RMT 2012. The member in that case held himself out as a doctor and was suspended for two (2) months.
iii. Royal College of Dental Surgeons and Johnson. In Johnson the member improperly held himself out as an oral surgeon and was reprimanded and suspended for four (4) months.
iv. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and Alan Canon, 2015. In the Canon case, the member performed unauthorized acts of threadlifting and also used the doctor title. A significant penalty was imposed of fourteen (14) months remitted by two (2) months.
15College counsel submits that, on the basis of the above, a range of two (2) to six (6) months has been imposed in other matters. College counsel argues that this range reflects the seriousness that must attach to misuse of the doctor title given the foreseeability of members of the public being misled by such conduct. In this matter, the College seeks a suspension of four (4) months.
d. Breach of Patient Confidentiality and Failing to Keep Records in Accordance with the Standards of the Profession
16As above, College counsel argued that not all of the heads of misconduct found in this matter require a suspension. With respect to this Panel’s findings that the Member failed to keep records in accordance with the standards of the profession, charged/waived a fee based on racial descent, and the Member’s breach of patient confidentiality in her dealings with Ms. Yee, the College submits that the Member should have certain terms, conditions and limitations placed on her certificate of registration. Specifically, the College seeks terms, conditions and limitations requiring the Member to complete the PROBE course on ethics and boundaries as well as the College’s Record-Keeping E-Workshop. College counsel also asks that the Member be required to complete an essay of no less than 1500 words on the importance of ethics and professionalism in the practice of Traditional Chinese Medicine and acupuncture.
e. Failure to Cooperate
17College counsel argued that in William James Wise and Law Society of Upper Canada 2010, a lawyer who refused to participate in an interview with a Law Society investigator was disciplined for failure to cooperate. The lawyer was penalized with a one (1) month suspension which would continue until he participated in the interview. The College submits that one (1) month suspension is appropriate in this matter given this Panel’s finding that the Member refused the College investigator entry to her “pharmacy” room where she keeps medications. College counsel submitted that a suspension is necessary in the interest of general and specific deterrence and that the College will be unable to fulfill its public protection mandate if investigators are prevented from doing their jobs.
Submissions of the Member on Penalty
18The Member confirmed that she would be calling no witnesses and submitted only two documentary exhibits on penalty (Exhibits #32 and 33). These documents were e-mail correspondence between the Member and the court reporting service that had handled the merits portion of this matter.
19The Member began her submissions by arguing that the Panel’s decisions on the merits portion of this hearing contained errors which required correction. The Panel has the power to correct misstatements, ambiguities or similar errors and therefore permitted and encouraged the Member to identify any areas of concern for its consideration.
20Despite being afforded significant time and latitude, the Member failed to identify any misstatements, ambiguities or similar errors in the Panel’s decision. The Member was ultimately directed to move on to her substantive submissions on penalty.
21The Member proceeded to respond to the College’s presentation of cases.
a. Charging a Misleading Patient Fee
22With respect to the $240 fee charged to Ms. Abdelhadi, the Member submitted that the analogies in the cases submitted by the College should not apply. The Member quite correctly pointed out that she did not steal from Ms. Abdelhadi (there is no dispute that the fee was refunded), and she certainly did not submit any false claims to an insurance company. The Member further argued that she had not been proven nor alleged to have intentionally stolen from Ms. Abdelhadi. The Member noted that she is entitled to charge fees as a practitioner.
b. Failure to Provide Information Regarding Medication
23The Member did not accept the Panel’s decision and finding of professional misconduct with respect to the failure to disclose ingredients of medicine she dispensed. The Member argued instead that she did not believe Chinese medicine was statutorily controlled. The Member argued that, in her efforts to bring Chinese medicine products to Canada, she had advocated for all products to be labeled in both English and French. She also argued that, in her submission, the ingredients of many commercial products she dispensed would be available via Google search.
c. Improper use of the Doctor Title
24Regarding the Panel’s finding that the Member had improperly used the Doctor title, the Member did express that this was a mistake on her part. She stated that she understands she is not allowed to use the “Doctor” or “Dr.” title and had no intention to mislead anyone. She acknowledged her responsibility and advised that when the investigator came back to her clinic for a second visit in this matter, she had removed the title from all items to ensure compliance.
d. Breach of Patient Confidentiality and Failing to Keep Records in Accordance with the Standards of the Profession
25The Member acknowledged that she is aware of the record keeping requirements enforced by the College. At issue in the merits portion of this matter was, among other things, the fact that the Member was maintaining many of her patient records in neither English nor French. The Member submitted both in the merits portion of the hearing and on penalty that a diagnosis in Chinese may not always translate accurately to English. She noted that many diagnoses may originate in Chinese given the historical significance of languages other than English or French in the practice of Traditional Chinese Medicine. The Member however admitted that she is behind a few months with respect to updating and translating all of her records into English.
26Regarding the Panel’s finding on breach of patient confidentiality, the Member maintained that, although she treated Ms. Yee in a non-private area of her clinic, this did not result in a breach of confidentiality because the Member recalled no one else being present in the clinic at the time. The Panel notes that it already addressed this argument in its finding on the merits.
e. Failure to Cooperate
27The Member maintained that she did not obstruct the investigator. On the contrary, the Member stated that her pharmacy room is small and two people were unable to fit. She stated that the investigator was impressed with the way she labelled her herbs. The Member offered this in support of her contention that the investigator did indeed gain access to her pharmacy. The Panel has already found in its decision on the merits that the investigator had been obstructed on his initial attempt to enter the Member’s pharmacy.
Finding on Penalty
28On the basis of the evidence and submissions received on penalty, the Panel finds:
a. that the Member shall appear before a panel of the Discipline Committee immediately following the hearing of this matter to be reprimanded, with the fact of the reprimand and a summary of the reprimand to appear on the public register of the College; and
b. that the Member shall be suspended for a period of ten (10) months and the Panel will issue an Order directing the Registrar of the College to suspend the Member’s certificate of registration accordingly.
29The Panel shall also issue an Order directing the Registrar of the College to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a. Requiring that Ms. Yan provide proof, acceptable to the Registrar, of successful completion of the PROBE ethics and boundaries course, which is to be taken at her own expense, within six (6) months of the date of the Order;
b. Requiring that Ms. Yan provide proof, acceptable to the Registrar, of successful completion of the College’s Record-Keeping E-Workshop, which is to be taken at her own expense, within six (6) months of the date of the Order;
c. Requiring Ms. Yan to complete, to the satisfaction of the Registrar, a 1500 word essay, on the importance of ethics and professionalism in the practice of Traditional Chinese Medicine, within six (6) months of the date of the Order; and
d. Requiring that the Member participate in a College Assessment focussing on ethical and record-keeping issues, at her own expense, within six (6) months of resuming her practice following the suspension set out in paragraph 28 above. The cost of the assessment shall not exceed $500.00.
Reasons for Decision on Penalty
30The Panel agrees with and accepts the submissions of College counsel set out above. The merits portion of this matter concluded with multiple findings of professional misconduct against the Member. Some of the misconduct found was very serious. A multi-faceted penalty is accordingly appropriate.
31The Panel accepts the Member’s submission that she was not intending to mislead Ms. Abdelhadi in their dealings and again acknowledges that the Member refunded Ms. Abdelhadi prior to the hearing in this matter.
32However, with respect to charging a misleading fee, the Panel finds that the Member does not appreciate how misleading her fee practices were for members of the public. The Member’s referral to the government and ostensible legal obligations in support of her fees created confusion for patients. It is the fact that the practice was misleading that is so important despite that the Member may not have intended it to be.
33The Member’s practices in respect of her patient fees lacked transparency and clarity. As the Panel already found, these practices can be exploitive of patients who may be particularly vulnerable and in dire need of a practitioner’s help. The Member did not appear to at all appreciate how her patients - in a time of need – were receiving and interpreting her representations. Specific deterrence is an issue for this Member but all practitioners need to understand that misleading fee practices are not acceptable regardless of whether they are carried out intentionally or inadvertently.
34The Panel notes that the Member’s fee practices were also found to be discriminatory.
35The publicly perceived integrity of the practice and regulation of Traditional Chinese Medicine requires that the Member’s misconduct with respect to fees be addressed with a serious penalty. The practice of charging unclear, inconsistent, confusing or discriminatory fees must be deterred and cannot be accepted. Practitioners will be held to the standards of this profession even when they do not intend to fall below them.
36The combination of a reprimand, suspension and terms, conditions and limitations is proportionate and required with respect to the Member’s misleading and discriminatory fee practices. The Panel finds that a four (4) month suspension is necessary in order to protect the public and provide both specific and general deterrence. The Panel also notes that the PROBE course on professional ethics is anticipated to address some of the issues which arose in this case pertaining to discriminatory practices.
37The Panel also finds that this Member does not appreciate the significance of her failure to provide information about ingredients in items that she dispenses to her patients.
38The Member distinguishes between her family recipes and other, commercial, medications. She apparently does not want to disclose information about the former and is content to let patients resort to Google in respect of the latter. The Panel feels that the Member does not appreciate the necessity and importance of providing information and ingredients relating to dispensed medications.
39It is of extreme importance that all patients know what is in any product they receive from a practitioner. Patients may have adverse reactions to certain ingredients and must also be able to adequately inform other health care providers of what they have taken in the event of future care. Protection of the public and the publicly perceived integrity of the profession require a substantial penalty in this regard commensurate with the seriousness of this misconduct. The Panel is accordingly satisfied that a two (2) month suspension is proportionate, appropriate and required in this respect.
40The Panel accepts the Member’s acknowledgment of a mistake on her part regarding use of the “Dr.” title. The case law provided suggests a range of 2-4 months suspension is potentially appropriate for this type of professional misconduct. However, this was the second time that the Member was investigated and disciplined for misusing the title. As such, the penalty that results must be sufficient to deter this behaviour going forward. In combination with the other findings of misconduct, the Panel is satisfied that a three (3) month suspension is proportionate and appropriate in this respect.
41The Panel accepts that the Member does recognize there is a standard of record keeping required in this profession. However the Panel is not convinced that the Member adequately appreciates the importance of accurate record keeping and receipt generation. Patient files, records and receipts matter.
42Accurate record keeping is important for public protection and maintaining the integrity of the profession. Third parties - including but not limited to other health care providers - may need to refer to patient records and insurance companies may need to see proof of payment. The Panel is not satisfied that the Member fully appreciates this but believes that she is trying. The Panel is accordingly satisfied that the completion of the College’s record keeping course coupled with a reprimand and the other terms, conditions and limitations imposed is proportionate in the circumstances and is sufficient to protect the public, deter this conduct in the future and maintain the publicly perceived integrity of the profession.
43With regard to breach of client confidentiality, the Panel is satisfied that the Member will benefit from courses in ethics to ensure best practices. Accordingly, the Panel is satisfied that a course in ethics and boundaries will be sufficient to deter this behavior and satisfies the public interest in ensuring that this behavior does not recur.
44The Panel already found that the Member failed to cooperate with the College investigator. The Panel is not satisfied that the Member appreciates the importance of cooperation with a College investigator. The need for members to comply with College investigations is an important part of the College’s real and perceived ability to protect the public and maintain the public confidence in the profession. This speaks directly to the mandate of the College and its ability to regulate the profession. A suspension of one (1) month is commensurate with the seriousness of the misconduct and appropriate in this respect.
45The Panel also considered broader mitigating and aggravating factors in this matter.
46The Panel acknowledges that the Member has dedicated much in her life to her profession and gives back to her community by providing services to lower income persons. The Panel also recognizes that this Member has certainly helped clients. Indeed, some patients who testified earlier in these proceedings stated that they felt better after receiving her treatments.
47The Panel also notes however that the Member clearly does not accept the majority of findings of professional misconduct made by this Panel. The Panel finds that, throughout the Member’s submissions on penalty, she displayed a demonstrable disdain for the College.
48Throughout the course of her submissions on penalty, the Member continuously brought up matters pertaining to the hearing on the merits. The Panel explained, repeatedly, that it had already made a decision on the merits portion of the matter and that its jurisdiction at the time was to deal with what penalty/costs, if any, should follow from the findings of professional misconduct that it had already made. The Member eventually stated that she understood this jurisdictional limitation and repeated that she does not accept the Panel’s findings.
49College counsel noted in reply that the Member, in College counsel’s submission, did not appear to demonstrate any enlightenment or appreciation for the multiple findings of professional misconduct that had been made against her.
50The Panel agrees and notes that specific deterrence is a significant issue in this case.
51Given all of the above, the total penalty in this matter is necessary, proportionate and appropriate.
Evidence on Costs and Fine
52The College seeks $80,000.00 in costs and the imposition of a fine in the amount of $300.00.
53The Member argued that her rejection of this Panel’s decision on the merits supports her contention that no costs should be applicable.
54There was no objection raised to the Panel’s jurisdiction to impose a fine or award costs.
55The College tendered evidence from Ms. Pieragostini, Manager of Professional Practice at the College, in the form of an affidavit to substantiate the actual costs incurred by the College in the investigation and prosecution of this matter. This affidavit was filed as Exhibit 31 and Ms. Pieragostini was cross-examined on it by the Member. Ms. Pieragostini confirmed that as part of managing and coordinating the discipline process, she is aware of the costs incurred by the College. Ms. Pieragostini testified that, to date, the College’s investigation and prosecution total costs have been $122,580.04 and exhibited a worksheet to her affidavit that provided details of this information. She testified that, apart from some typographical errors unrelated to the amounts listed, the information is accurate and based on original invoices that she herself saw and which were provided to the College.
56College counsel argued that there is a cost to Members and to the public in respect of a Member’s conduct and a resulting hearing. College counsel contended that the cost of the discipline process, in appropriate cases, should not be borne entirely by the membership and that the Member should mitigate these costs in the form of a costs order. The College seeks 2/3 of its actual costs in this regard and provided case law to support this ratio.
57The Member provided no evidence on the issue of costs beyond her cross-examination of Ms. Pieragostini. The Member reiterated that she provides services to working class clients and provides treatments to lower income individuals. Although she did not testify, in her submissions the Member stated that she would have to mortgage her home to pay the amount sought by the College. The Panel accepts this submission despite that it was not subjected to cross-examination nor provided under affirmation.
Decision on Costs and Fine
58The Panel finds that the Member shall pay the following:
- Costs payable to the College in the amount of $65,000.00 payable within four (4) years from the date of the Order on penalty referenced above; and
- a fine payable to the Minister of Finance in the amount of $300.00.
Reasons for Decision on Costs and Fine
59The Member provided no legal basis for her contention that her refusal to accept the professional misconduct findings made by the Panel militates in favour of no costs being awarded at this phase of the hearing. That argument is rejected.
60This is an appropriate case for an award of costs and the imposition of a fine.
61The issue is therefore to determine the appropriate quantum.
62The Member and her representative at the merits phase of the matter both lengthened these proceedings unnecessarily. The Member’s representative routinely arrived late and without having made copies of documents. The Panel does not fault the Member for the conduct of her former representative. However, the Member is responsible for steps that she herself took which unreasonably delayed this process. As an example, at the penalty hearing (while self-represented), the Member spent more than half a day attempting to re-argue the merits portion of this matter. The Panel is satisfied that the Member understood the purpose of the penalty hearing and intentionally ignored multiple requests from the Panel that she focus her submissions to penalty issues. The Panel also notes that the Member herself often shouted out during the merits portion of the hearing, even to her own representative, thereby disrupting the hearing at times. Her comportment was largely argumentative and contributed to lengthy, unprompted, statements which were, at many times, not relevant to the evidence being heard. The Panel does however acknowledge that the Member apologized for her conduct at the end of the penalty hearing.
63The Panel accepts the accuracy of the quantum of total costs set out in the affidavit of Ms. Pieragostini. Total costs submitted amounted to $122,580.04 for which the College asks $80,000.00.
64The Panel took into account various factors in assessing costs in this case including the relative success of the parties, the reasonableness of the positions taken and some of the admissions that were made in the course of the hearing. The Panel also acknowledges the case law provided by College counsel in support of his contention that 2/3 of actual costs is an appropriate ratio to apply in these circumstances.
65The costs in this matter are not meant to be punitive. They are intended to indemnify the College for a portion of the costs incurred. The College was largely successful in prosecuting this matter. The Panel accordingly finds that it is fair, proportionate and reasonable to order the Member to pay $65,000.00 in costs to the College. The Panel is content that the parties work out an appropriate payment schedule amongst themselves however payment by the Member shall be completed within four (4) years from the date of the costs Order which will follow from these reasons.
66The Panel accepts the College’s submission that a fine of $300 should be payable by the Member. The Panel acknowledges and accepts the point made by College counsel that, unlike an order for costs, a fine sends a message to the public that its funding contribution to the profession vis-à-vis the government has been acknowledged. A fine is distinguishable from an award of costs in this respect and is appropriate in the circumstances of this case.