Allan Beitel v. The College of Physicians and Surgeons of Ontario, 2013 ONSC 4658

Superior Court of Justice - Divisional Court

CITATION: Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658

DIVISIONAL COURT FILE NO.: 487/12

DATE: 2013/07/11

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Molloy, Swinton, Herman JJ.

BETWEEN:

Allan Beitel

Applicant

– and –

The College of Physicians and Surgeons of Ontario

Respondent

Jaan E. Lilles, Jon Laxer, for the Applicant

Vicki White, for the Respondent

HEARD at Toronto: June 14, 2013

Herman J.

1This application for judicial review was heard on June 14, 2013. The Court dismissed the application, with reasons to follow. These are the reasons.

2The applicant, Dr. Allan Beitel, is a psychiatrist who practises psychotherapy. He seeks judicial review of the decision of the Inquiries, Complaints and Reports Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (“the College”), dated June 11, 2012, and asks that the decision be quashed.

3Dr. Beitel raised three grounds for review of the decision:

(i) The College lacked statutory authority and failed to accord Dr. Beitel procedural fairness and natural justice by commencing an investigation into his practice before concluding the investigation of a patient’s complaint and before receiving Dr. Beitel’s response to that complaint;

(ii) The investigator’s request for Dr. Beitel’s OHIP records cannot be justified on the basis of the authorized investigation; and

(iii) The decision is unreasonable in that it orders a clinical caution and preceptorship when only record keeping and OHIP billing deficiencies were identified as concerns in the Committee decision.

Background

4In November 2009, Dr. Beitel was the subject of a complaint by a patient, AC (the “AC complaint”). The AC complaint related primarily to communications issues, medication concerns and short sessions.

5During the course of investigating the complaint, the College retained a psychiatrist, Dr. Wendy Cole, to review Dr. Beitel’s chart for AC and provide an opinion on Dr. Beitel’s treatment.

6Dr. Cole provided her report (the “Cole Report”), dated April 5, 2011, to the College. Dr. Cole’s opinion was that Dr. Beitel did not meet the standard of practice for the profession. She had particular concerns about the inadequacy of Dr. Beitel’s records, a concern that had not been raised in the AC complaint.

7On May 9, 2011, after receiving the Cole Report, the Registrar signed a document indicating that he believed there were reasonable and probable grounds to believe that Dr. Beitel had committed an act of professional misconduct or is incompetent. The Registrar sought the approval of the Committee to appoint investigators under s. 75(1)(a) of the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

8On May 25, 2011, the Committee approved the Registrar’s appointment of investigators.

9As part of the investigation, the College obtained copies of 18 of Dr. Beitel’s patient charts and the OHIP records of the services Dr. Beitel provided to these 18 patients.

10On October 28, 2011, the College retained Dr. Leslie Flynn, a psychiatrist, to act as an independent expert. Dr. Flynn reviewed the 18 charts and OHIP records and interviewed Dr. Beitel.

11Dr. Flynn provided the College with her report, dated January 30, 2012.

12The Committee considered the matter on June 11, 2012. It reviewed the information gathered during the investigation, Dr. Flynn’s report and Dr. Beitel’s response, which included the opinion of Dr. Barry Gilbert, a psychiatrist.

13The Committee accepted Dr. Flynn’s report and concluded that it had significant concerns with respect to Dr. Beitel’s care, including his record keeping and billing.

14The Committee determined that the appropriate disposition was to caution Dr. Beitel in person regarding the clinical concerns and record keeping deficiencies, require Dr. Beitel to complete a specified continuing education or remediation program and refer the issues related to his billings to OHIP.

15Also on June 11, 2012, the Committee considered the AC complaint and rendered a separate decision.

Was there a lack of statutory authority or a denial of procedural fairness in initiating the s. 75 investigation?

16Dr. Beitel submits that the College improperly relied on the Cole report, obtained as a result of the complaint of AC, to initiate a broader investigation under s. 75(1)(a) of the Code. In his submission, the College both lacked the statutory authority to do so and failed to accord Dr. Beitel procedural fairness by proceeding with the second investigation before the complaint of AC had been resolved and before he had responded to the Cole report.

Standard of review

17The question of whether the Registrar had the statutory authority to initiate the investigation is, in my opinion, a matter that is subject to the standard of reasonableness. The Registrar and the Committee are applying their home statute and code of procedures. In view of the professional expertise of the Registrar and the Committee, the decision that there were reasonable and probable grounds to believe a member had committed an act of professional misconduct or was incompetent is entitled to deference. The decision does not fall within the very narrow category of a “true question of jurisdiction” (see Alberta (Information and Privacy Commissioner v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 34 and 39).

18No standard of review applies to the question of whether Dr. Beitel was denied procedural fairness and natural justice. If Dr. Beitel can establish that there has been such a denial, the decision must be set aside (see Landau v. Ontario (Minister of Finance), [2012] O.J. No. 6186 (Div. Ct.) at para. 10).

Did the College have the authority to initiate an investigation?

19Dr. Beitel argues that the College did not have the authority to initiate the investigation under s. 75(1)(a) of the Code because the basis for doing so was an expert report commissioned by the College in the context of an individual complaint. Sections 25 and 26 of the Code set out a process for the investigation of a complaint, which requires that the physician be given notice and an opportunity to respond before the Committee determines the appropriate disposition of the complaint. In Dr. Beitel’s submission, the College was precluded from using information obtained in the investigation of the complaint to support the appointment of investigators under s. 75 until that process was completed.

20The main purposes of the Regulated Health Professions Act, 1991 and the Code are the regulation of the medical profession and the protection of the public (see Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, [2012] O.J. No. 5076 (C.A.) at para. 94).

21The College is the self-regulating body for the medical profession in Ontario. In carrying out its objectives, it has a duty to serve and protect the public interest (the Code, s. 3(2)).

22Section 75 of the Code sets out four situations in which the Registrar may appoint an investigator:

75. (1) The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Inquiries, Complaints and Reports Committee approves of the appointment;

(b) the Inquiries, Complaints and Reports Committee has received information about a member from the Quality Assurance Committee under paragraph 4 of subsection 80.2(1) and has requested the Registrar to conduct an investigation; or

(c) the Inquiries, Complaints and Reports Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation.

(2) The Registrar may appoint an investigator if,

(a) the Registrar believes on reasonable and probable grounds that the conduct of the member exposes or is likely to expose his or her patients to harm or injury, and that the investigator should be appointed immediately; and

(b) there is not time to seek approval from the Inquiries, Complaints and Reports Committee.

23The trigger for the initiation of an investigation under s. 75(1)(a), which is at issue here, is therefore different from the initiation of an investigation of an individual complaint under s. 75(1)(c). In the former case, the Registrar may appoint an investigator if he or she believes there are reasonable and probable grounds and the Committee approves. In the latter case, the investigation is conducted in response to an individual complaint at the request of the Committee.

24In Sazant, above at para. 156, the Court of Appeal noted that it was the practice of the College to seek a new appointment of investigators under s. 75(1)(a) of the Code where investigators uncovered matters unrelated to the originally authorized investigation. There is no indication that the College’s ability to do so is constrained by the originally authorized investigation.

25There is no suggestion here that Dr. Beitel’s conduct exposed or was likely to expose his patients to immediate harm or injury. However, it is clear from the different language used in s. 75(1)(a) and s. 75(2)(a), that the concerns of misconduct or incompetence need not rise to the level of harm or injury in order to justify the initiation of an investigation under s. 75(1)(a).

26Where the Registrar has information that forms the basis for “reasonable and probable grounds” and the Committee approves, an investigator may be appointed under s. 75(1)(a). There is nothing in the Code or elsewhere that limits or qualifies the basis or source of information for the Registrar’s belief. In particular, there is nothing that precludes the initiation of an investigation into broader issues on the basis that the information came about as a result of the investigation of an individual complaint under s. 75(1)(c). In contrast, the Code does prohibit the use of information obtained through the quality assurance process to commence another investigation (see ss. 83 and 83.1).

27While the Cole Report was commissioned in response to an individual complaint, it was not unreasonable of the Registrar to use that Report as a basis for believing there were concerns that went beyond those identified in the AC complaint and, therefore, as a basis for initiating an investigation under s. 75(1)(a).

Did the College breach its duty of procedural fairness to Dr. Beitel?

28Dr. Beitel submits that the College breached its duty of procedural fairness by initiating and carrying out an investigation under s. 75(1)(a) prior to the resolution of the AC complaint or, alternatively, prior to Dr. Beitel having had an opportunity to respond to that individual complaint.

29It is undisputed that Dr. Beitel did not receive notice of the s. 75(1)(a) investigation prior to its initiation. It is also undisputed that the investigation was initiated prior to the resolution of the AC complaint and prior to Dr. Beitel providing his response to the Cole Report.

30The pertinent dates are as follows: the AC complaint was received by the College in November 2009; Dr. Beitel was provided with the Cole Report on April 7, 2011 and was asked to provide a written response by April 22, 2011; Dr. Beitel’s counsel advised the College that Dr. Beitel required an extension of several weeks by letter dated April 19, 2011; the Registrar formed reasonable and probable grounds to believe that Dr. Beitel had committed an act of professional misconduct or is incompetent on May 9, 2011; the Committee approved the appointment of investigators under s. 75(1)(a) on May 25, 2011; Dr. Beitel provided a response to the Cole Report on June 30, 2011; Dr. Beitel was advised of the s. 75(1)(a) investigation by letter dated July 14, 2011; Dr. Beitel provided a report from his expert, Dr. O’Brien on July 18, 2011; the Committee considered both the AC complaint and the matters arising from the s. 75(1)(a) investigation on June 11, 2012.

31Dr. Beitel points to the decision of the Court of Appeal in Volochay v. College of Massage Therapists of Ontario, [2012] O.J. No. 3876 (C.A.) in support of his position. Mr. Volochay was a member of the College of Massage Therapists of Ontario. In July 2008, a complaint was made against Mr. Volochay. An investigator was appointed to investigate the complaint. The complainant then withdrew the complaint. Mr. Volochay was never served with notice of the complaint or told of the nature of the complaint. The Committee concluded that it retained the jurisdiction to investigate the complaint even though it was withdrawn. It referred the matter to the Executive Committee to consider whether there should be a full investigation. Mr. Volochay’s lawyer asked the College to dismiss the original complaint. The College refused to do so and appointed an investigator to inquire into Mr. Volochay’s practice.

32The Court of Appeal agreed with the College that it was entitled to continue to investigate the individual complaint even though the complainant had withdrawn it. However, the College had breached the rules of natural justice and its own statutory obligations when it failed to give Mr. Volochay notice of the complaint and an opportunity to make written submissions to the Committee.

33The circumstances in Volochay are very different than the circumstances in the case at hand. Mr. Volochay did not receive notice of the nature or specific allegations in the complaint until after the Committee had made a decision to refer the matter to the Executive Committee for a full investigation. The College had failed to comply with the requirement in the Code to give the member notice of the complaint and an opportunity to make written submissions to the Committee. The decision to appoint an investigator to inquire into Mr. Volochay’s practice was flawed, not because notice was required of any decision to initiate an investigation, but because the decision to investigate was tied to the earlier decision of the Committee, which had involved a breach of both the rules of natural justice and the requirement for notice under the Code.

34The duty of procedural fairness varies depending on the context. In deciding to approve the appointment of investigators, the Committee exercises a screening function, not an adjudicative one. The ability to initiate an investigation is not unlimited: in the absence of a complaint, the Registrar must have reasonable and probable grounds; and the Committee has to approve the appointment. While Dr. Beitel did not receive notice prior to the appointment of the investigators, he was notified of the investigation soon after it was commenced. He knew the identity of the patients whose care formed the substance of the investigation. He was given a copy of the Report of Dr. Flynn and had an opportunity to respond prior to the Committee making its decision.

35The College also has a statutory duty to protect the public interest. This includes a duty to act on information that raises concerns with respect to a member’s treatment of patients. There is, in my opinion, no basis to conclude that the College is precluded from initiating a broader investigation while it is investigating an individual complaint. There is also no basis to conclude that the College must delay the initiation of an investigation because its concerns arose from information obtained in the course of investigating an individual complaint. To suggest otherwise would be to impede the College’s ability to protect the public.

36Dr. Beitel’s counsel conceded that if the information that was used as the basis to initiate the investigation had come from a source other than a pending individual complaint, no notice would have been required prior to obtaining the appointment of investigators under s. 75(1)(a).

37Dr. Beitel does not claim that he was denied procedural fairness with respect to the Committee’s treatment of the AC complaint. He does not suggest that the s. 75(1)(a) investigation adversely affected his ability to respond to the AC complaint. Dr. Beitel also does not claim that he was denied procedural fairness with respect to what took place after the s. 75(1)(a) investigation commenced, other than his assertion that no investigation should have taken place until the AC complaint had been resolved or until he had responded to the AC complaint.

38In these circumstances, I cannot conclude that Dr. Beitel was denied procedural fairness when the College initiated the investigation under s. 75(1)(a).

Was the request for OHIP records justified on the basis of the authorized investigation?

39Dr. Beitel submits that the request for OHIP records went beyond the scope of the authorized investigation. The investigation was authorized based on concerns with respect to Dr. Beitel’s note keeping. Dr. Beitel contends that the OHIP records were irrelevant to these concerns.

40In my opinion, the College’s determination of the scope of its investigation, including its requests for information, is subject to the reasonableness standard of review. Deference is owed to the College’s expertise in determining what is relevant to the subject matter of its investigation.

41Section 76 of the Code sets out the powers of an investigator appointed under s. 75. Subsections 76 (1) and (1.1) provide:

76. (1) An investigator may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination.

(1.1) An investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters relevant.

42The investigative powers under s. 76(1) should be given a broad and purposive interpretation in keeping with the College’s mandate to regulate the profession and protect the public. However, s. 76 does not authorize a fishing expedition. The exercise of the investigatory powers is limited to obtaining information relevant to the investigation that has been authorized under s. 75(1)(a) (Sazant at paras. 99, 162).

43The issue, therefore, is whether the OHIP records were relevant to the investigation authorized under s. 75(1)(a), in particular, the concerns raised with respect to Dr. Beitel’s record keeping.

44The Cole Report, which formed the basis of the authorization for the investigation, noted the following concerns: the initial consultation note was inadequate as it did not provide a mental status, diagnosis, or proposed treatment plan; changes in the mental status were not documented; the rationale for treatment was not apparent; discussions regarding the possible side effects of medications were not in the chart; the notes were brief and disjointed; and the notes did not adequately outline the progress of the patient or the purpose of treatment.

45OHIP records contain the following information: the date that Dr. Beitel claimed he provided treatment; a description of the services that fall within the billing code; and a description of the range of illnesses or conditions that fall within the diagnostic code.

46The description of services is very general: “psychotherapy – individual”. The description of the range of illnesses or conditions is also very general: “anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis” or “personality disorders”.

47Notwithstanding the generality of these categories, the records do show whether Dr. Beitel made a claim for a session with a patient on a particular day and the length of time claimed for each session (generally two units or 46 minutes of patient contact time).

48The relevance of the OHIP records to the investigation is underlined by the fact that Dr. Cole relied on AC’s OHIP records when she prepared her report. Dr. Cole used the OHIP records in the following ways: because Dr. Beitel’s notes did not indicate a start and stop time for psychotherapy sessions, Dr. Cole looked to the OHIP records to see the number of units that had been billed; because Dr. Beitel’s chart did not explain why he prescribed Seroquel for the patient, Dr. Cole checked the OHIP records to see if Seroquel was indicated for any of the disorders listed under the OHIP diagnostic code; and Dr. Cole reviewed the OHIP billing records to determine that the patient had been seen for weekly psychotherapy sessions for a period of three months.

49Where an investigation is initiated as a result of charting inadequacies, the information contained in the OHIP records may be useful to supplement the information in the charts. In the case at hand, the OHIP records were relevant to the authorized investigation and the request for these records was reasonable.

Is the decision unreasonable in that it orders a clinical caution and preceptorship when only record keeping and OHIP billing deficiencies were identified in the decision?

50The parties agree that the standard of review applicable to the Committee’s disposition is reasonableness.

51The Committee accepted Dr. Flynn’s Report, and concluded that it had significant concerns with respect to Dr. Beitel’s care, including his record keeping and his billing.

52The Committee’s disposition was as follows: Dr. Beitel was required to attend in person to be given a caution regarding the clinical concerns and record keeping deficiencies noted in the investigation; the issues related to Dr. Beitel’s billings were referred to OHIP; and Dr. Beitel was required to complete a specified continuing education and remediation program.

53Dr. Beitel submits that the Committee’s disposition is unreasonable because the caution and the education and remediation program go beyond record keeping deficiencies and include clinical issues.

54Dr. Beitel is concerned, in particular, with the preceptorship aspect of the education and remediation program. The decision requires Dr. Beitel to engage in focused educational sessions with a preceptor to deal with both psychotherapy and medical record-keeping. In Dr. Beitel’s submission, it is unreasonable to require him to engage in a program with respect to the clinical practice of psychotherapy.

55Dr. Beitel submits that the Committee has conflated record-keeping concerns with clinical concerns. However, the two aspects of a doctor’s medical practice are inextricably linked. As is stated in the College’s Medical Records Policy, “[g]ood medical record keeping is part of providing the best quality of medical care”. The Policy notes: “A medical record is an essential tool in providing continuity of care for all patients…”

56As a result of the deficiencies in Dr. Beitel’s record keeping, it was difficult for Dr. Flynn to know what care was provided by Dr. Beitel. The Committee specifically required many of the areas that were found to be lacking in Dr. Beitel’s records to be reviewed with the preceptor: mental status examinations, assessment of substance abuse, review of thoughts of self- harm and health promotion and prevention.

57The Court owes substantial deference to the expertise of the Committee in determining the appropriate scope of education or remediation. In Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 (Div. Ct.) at paras. 8-12, the Divisional Court upheld the Committee’s decision to require a specified education program and practice assessment even though the identified concerns related to record keeping.

58In view of the above, it cannot be said that the Committee’s decision to include clinical matters in the scope of the education and remediation program was unreasonable.

Conclusion

59For the reasons given, above, the application for judicial review is dismissed.

60The parties agreed that the successful party would receive $7,500 in costs. Costs are therefore awarded to the College of $7,500, inclusive of HST and disbursements.

Herman J.

Molloy J.

Swinton J.