King v. Gannage, 2020 ONSC 7967

CITATION: King v. Gannage, 2020 ONSC 7967

DIVISIONAL COURT FILE NO.: DC 24/20 DATE: 20201221

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, Pattillo and Bloom JJ.

BETWEEN:

ANNE BORDEN KING

Applicant

– and –

JOHN MICHAEL GANNAGE AND THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD

Respondents

Stephen Aylward and Dragana Rakic, for the Applicant

Nina Bombier and Patrick Wright, for the Respondent John Michael Gannage

Ruth Ainsworth, for the Respondent College of Physicians and Surgeons of Ontario

David Jacobs, for the Health Professions Appeal and Review Board

HEARD at Toronto (by videoconference): October 29, 2020

Swinton J.:

Overview

1Anne Borden King has brought an application for judicial review of a decision of the Health Professions Appeal and Review Board (the “Board”) dated December 5, 2019 that dismissed her request for review of a decision of the Incidents, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (“College”) dated March 21, 2018. The ICRC had considered the applicant’s complaint against the respondent, Dr. John Michael Gannage, and had decided to take no further steps, such as a referral to discipline. On review, the Board held that the ICRC’s investigation was adequate, and its decision was reasonable.

2For the following reasons, I would dismiss the application for judicial review, as the decision of the Board was also reasonable.

The Applicant’s Complaint

3The applicant has never been a patient of Dr. Gannage, who is a family medicine physician. She is the co-founder of A4A Ontario, a collective of autistic adults engaged in advocacy on autism-related issues in Ontario. The group is opposed to the use of chelation therapy for children with Autism Spectrum Disorder (“ASD”).

4Chelation is a drug therapy used to remove heavy metals and minerals from the blood, but it has also been used off-label to treat children with ASD. The therapy is usually used to treat heavy metal poisoning and is described in the applicant’s factum as follows:

Chelation therapy “consists of removing excess minerals from a patient’s body through an intravenous introduction of drugs which seek out minerals in the bloodstream to later excrete them in the patient’s urine.” (at para. 8)

5The applicant’s initial complaint to the College was directed at a proposed treatment centre for autism in Hamilton. After the College informed her that it could only investigate complaints regarding named physicians, the applicant brought a complaint against Dr. Gannage in November 2017. Through an internet search, she had learned that he used chelation therapy for some children with autism in his family medicine practice. She complained about his use of chelation and “other unethical practices” that were never particularized.

6The applicant did not make a formal complaint, but rather sent a series of emails to the College voicing her concerns about the acceptability of chelation therapy to treat a child with ASD and whether Dr. Gannage’s use of the therapy was acceptable. She believes that the therapy arises out of an opposition to vaccinations and is a scam or “snake oil” that should be banned in the treatment of autistic children. She is also concerned that the treatment is dangerous for children.

7The applicant did not provide any patient specific information to the College, nor have there been any complaints from patients concerning Dr. Gannage’s use of chelation therapy throughout his decades of practice. He has no history of prior discipline with the College.

8One of the applicant’s emails contained links to some websites, including Forbes magazine and ABC News. Subsequently, she provided two reports from A4A, her advocacy group, in an email in early January 2018. The reports dealt with “autism ‘cure’ scams” and “bogus ‘chelation for autism’ clinics in Canada.” They contained many in-text hyperlinks to references, some of which led to publications such as warnings from the United States Food and Drug Administration (“FDA”) and guidelines about chelation therapy from the United Kingdom. While the reports were before the ICRC, no printout of the hyperlinked materials was provided to the College investigator or the ICRC.

9In early January, 2018, the applicant also sent the investigator another email with a link to Dr. Gannage’s website, advising that it led to a Case Study in which Dr. Gannage described his use of chelation therapy. This email was not included in the materials considered by the ICRC, although a print-out from the link was provided to the Board by the applicant.

10Dr. Gannage responded to the College in a detailed letter dated January 15, 2018, indicating that he used chelation therapy for a small component of his practice. He explained that he has a special interest in the biomedical treatment of neurodevelopmental disorders, stating that there is increasing evidence that neurodevelopmental disorders arise from a complex interplay between genetic predisposition and environmental triggers. He also explained his process to obtain informed consent for treatment, including chelation therapy, stating that he acted in accordance with the College’s Complementary/Alternative Medicine Policy, CPSO Policy: #3—11 (“CAM”). He also denied that he believed there was a cure for autism.

11It should be noted that s. 5.1 of the Medicine Act, 1991, S.O.1991, c. 30 (the “Act”) permits the use of non-traditional therapies by physicians. It states that a member shall not be found guilty of professional misconduct solely on the basis that he or she practises a therapy that is non-traditional or that departs from the prevailing medical practice “unless there is evidence that proves that the therapy poses a greater risk to a patient’s health than the traditional or prevailing practice.”

12The CAM Policy provides further guidance to physicians. It explains that s. 5.1 of the Act and the Policy respect patient autonomy (at p. 2):

Patients have the right to make health care decisions that accord with their own values, wishes and preferences. This includes decisions to pursue complementary/alternative medicine either as an adjunct to conventional medicine, or instead of conventional medicine.

13The Policy requires the physician to obtain informed consent before providing complementary/alternative medicine, stating (at p. 4),

Any CAM therapeutic option that is recommended by physicians must be informed by evidence and science, and it must:

• Have a logical connection to the diagnosis reached;

• Have a reasonable expectation of remedying or alleviating the patient’s health condition or symptoms; and

• Possess a favourable risk/benefit ratio based on: the merits of the option, the potential interactions with other treatments the patient is receiving, the conventional therapeutic options available, and other considerations the physician deems relevant.

Physicians must never recommend therapeutic options that have been proven to be ineffective through scientific study.

14On March 21, 2018, the ICRC decided to take no further action with respect to the complaint, given that the complaint contained no specific patient information that raised concerns regarding the care provided by Dr. Gannage. It concluded that there was no evidence suggesting that Dr. Gannage was practising outside the scope of the College’s CAM Policy. It was also satisfied that there was a clear consent process in place for his patients.

15The applicant then requested a review by the Board, which concluded that the ICRC investigation was adequate, and the decision to take no further action was reasonable. The applicant now challenges the Board’s decision on the basis that it was unreasonable.

The Legislative Framework

16In order to deal with the merits of this application, it is useful to describe the complaint process under the Regulated Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”).

17The College is the regulatory body for the medical profession in Ontario. Its mandate is to serve and protect the public interest by governing the medical profession (Code, s. 3(2)). One of its key functions is the investigation of its members for professional misconduct or incompetence.

18Investigations of members can occur either after the receipt of a complaint filed with the Registrar regarding the conduct or actions of a member (Code, s. 25), or through the appointment of an investigator by the Registrar, if she believes, on reasonable and probable grounds, that a member has committed an act of professional misconduct and the ICRC has approved the appointment of investigators (Code, s. 75(1)(a)).

19In either case, the ICRC must form a panel to investigate the complaint or to consider the investigator’s report (Code, s. 25(1)). When a patient complains about the conduct of a physician, he or she is taken to have given implicit consent to the physician’s disclosure of information about the patient in order that the physician can respond to the complaint (Code, s. 25.2). The patient may also be asked to sign a written consent for the release of records from other record-holders.

20In the case of a third-party complaint, such as the one in this proceeding, there is no implicit patient consent to the disclosure of personal medical information. If the ICRC determines that patient information is required, it may request the Registrar to appoint an investigator pursuant to s. 75(1)(c) of the Code. Such an investigator would have the same powers as an investigator appointed under s. 75(1)(a), allowing him or her to exercise powers under the Public Inquiries Act, such as the power to enter the physician’s place of practice and examine or remove anything relevant to the investigation.

21The ICRC plays an important role in screening complaints and reports and deciding whether further action is necessary. Subsection 26(1) of the Code sets out the powers of the ICRC panel. After investigating a complaint or considering a report, the panel must consider the member’s submissions and make “reasonable efforts to consider all records and documents it considers relevant to the complaint or the report”. It then has a broad discretion to decide whether to refer a specified allegation of a member’s professional misconduct to the Discipline Committee; take some other remedial action, such as a caution or the member’s attendance at a remedial program; or take any action it considers is not inconsistent with the health professions Act, the Code, the regulations or by-laws.

22The ICRC described its role in its reasons in the present case as follows (Reasons, p. 2):

The Committee’s role, broadly, is to protect the public by determining whether remedial action is necessary and, if so, what action would best enhance the quality of medical care of the particular physician, and the general quality of medical care in Ontario, by reinforcing the standards of practice.

In a small number of cases, the Committee may refer a specified allegation of professional misconduct or incompetence to the College’s Discipline Committee. The Committee will do this where it believes that referral to the Discipline Committee is in the public interest, and that the available information has a reasonable chance of supporting a successful prosecution.

23Subsection 29(2) of the Code permits the complainant or the member who is the subject of a complaint to request a review of the ICRC decision by the Board, unless the decision is a reference to the Discipline Committee or a reference pursuant to s. 59 for incapacity proceedings. Pursuant to s. 33(1), there are two grounds that may be raised on review before the Board:

(a) the adequacy of the investigation conducted; and/or

(b) the reasonableness of the decision.

24The powers of the Board are expressly constrained by s. 35(1)3, in that the Board can require the ICRC to do anything the ICRC may do under the relevant legislation and the Code “except to request the Registrar to conduct an investigation.”

The Issues in this Application for Judicial Review

25The applicant argues that the Board’s decision was unreasonable, both with respect to the finding that the ICRC’s investigation was adequate and that the ICRC’s decision was reasonable.

The Standard of Review

26All the parties agree that reasonableness is the standard of review in this application for judicial review of the Board’s decision.

Analysis

Overview

27The applicant’s complaint is not altogether clear in the emails she sent to the College. However, through the process, it has become clear that she believes any use of chelation therapy for children with ASD is improper, because the therapy is ineffective and not evidence-based, and it is dangerous to children. In her view, Dr. Gannage, by using chelation therapy for his child patients, acted improperly. In effect, the applicant sought a finding by the ICRC that the use of chelation therapy for autistic children is unacceptable.

28The problem with her approach is that she ignores the role of the ICRC. It is a screening body, not a factfinding body. It has the responsibility to consider a member’s practice to determine whether there are grounds to take disciplinary or remedial action, given the apparent failure to meet the standards of professional conduct. As stated by the Divisional Court in McKee v. Health Professions Appeal and Review Board (at para. 13):

The nature of the powers conferred upon the Complaints Committee is indicative of its role in the statutory scheme: it has no power to make determinations or findings of fact concerning incompetence, incapacity, failure to meet standards or professional misconduct. Rather, its role is to screen complaints and to stream them. By reason of its composition and the ambit of its jurisdiction, the Complaints Committee is a specialized body having particular sensitivity and experience with issues that arise in complaints concerning members of the College. As well, it is apparent from the powers conferred by the legislation that the Complaints Committee is vested with the discretion as to where and how to allocate the College’s resources in dealing with complaints it receives.

29In the present case, the ICRC had to consider s. 5.1 of the Medicine Act, which permits the use of complementary and alternative therapies. It also had to consider the CAM Policy, which has a patient specific focus, requiring consideration of the alternative therapy used, the risks and benefits to the particular patient, and the existence or non-existence of informed consent. The ICRC’s job was not to opine on the acceptability of chelation therapy for autistic children in the abstract.

The Board reasonably concluded that the ICRC’s investigation was adequate

30The applicant argues that the Board unreasonably concluded that the ICRC fulfilled its statutory duty to conduct an adequate investigation into her complaint. While the ICRC was required to obtain the essential information relevant to making an informed decision about the issues in her complaint, she submits that the ICRC, and the Board on review, improperly imposed a burden on her to prove that Dr. Gannage had committed professional misconduct.

31In particular, the applicant argues that the ICRC did not adequately investigate whether the use of chelation therapy for children with ASD complies with the CAM Policy. Before the Board and before this Court, she argues that the ICRC was required to determine whether the use of chelation theory in the treatment of autistic children is “evidence-based”, as that is a requirement of the CAM Policy.

32In support of her position, she raises several concerns. First, the ICRC did not consider a Case Study authored by Dr. Gannage respecting the use of chelation therapy which, in her view, shows that the use of chelation therapy is based in anti-vaccination views, and also states that there is a cure for autism. She had provided a hyperlink to this Case Study in an email, but the Case Study was never put before the ICRC. Second, the ICRC did not consider the content of the hyperlinked references in the two A4A reports she submitted, and that in itself is said to be reason to quash the Board’s decision. She submits that some of those references show warnings about chelation by the FDA and guidelines in the United Kingdom against the use of chelation for treatment of autistic children. Third, she argues that the Board and the ICRC took an unreasonably narrow view of the content of her complaint, because they did not adequately consider whether the use of chelation treatment is evidence-based. If not, the use of the therapy is contrary to the CAM Policy. Fourth, the Board and the ICRC put an unreasonable burden of proof on the applicant, when it was the ICRC that had the responsibility to conduct an adequate investigation – for example, by obtaining access to the charts of Dr. Gannage’s patients and obtaining an expert report on the efficacy of the use of chelation therapy to treat autistic children.

33The Board set out the appropriate test to determine whether the ICRC investigation was adequate, noting that the investigation “does not need to be exhaustive. Rather, the Committee must seek to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint” (Reasons at para. 17).

34As I stated above, s. 26(1) of the Code requires the ICRC to make “reasonable efforts to consider all records and documents it considers relevant to the complaint.” Thus, it has a discretion to determine the scope of the investigation necessary in a particular context.

35The applicant first argues that the investigation was fatally flawed because the ICRC did not have the Case Study found on Dr. Gannage’s website to which she had provided a link in an email. That email does not point to anything in particular in the Case Study, but she now argues that it reveals that Dr. Gannage believes there is a cure for autism, because the Case Study states that chelation therapy had dramatically improved the life of an autistic child who was his patient. It also links the treatment to a change in the behaviour of the child after the receipt of two vaccinations.

36In his response to the College, Dr. Gannage stated that he does not believe that there is a cure for autism, and the Case Study does not contradict him. The Board reasonably concluded that the Case Study is not a patient chart and does not, on its face, provide any evidence that a child was harmed by Dr. Gannage or that the information in the Case Study, based on parental information, was false. The fact that the Case Study was not before the ICRC does not render the investigation inadequate.

37The Board also reasonably concluded that the failure of the ICRC to read the hyperlinked references in the A4A reports did not call into question the reasonableness of the investigation or the ICRC’s decision. These reports were made by an advocacy group, not an independent scientific source. Nothing in these reports speaks to Dr. Gannage’s practice and his treatment of his patients.

38Moreover, if the applicant believed that some of the sources found in the hyperlinks were significant, it was up to her to bring those specific sources to the ICRC’s attention. As a complainant, she had the responsibility to clarify her concerns for the ICRC. As well, it was important that she do so in order that the responding physician could adequately respond. The fact that the ICRC did not consider these hyperlinks does not render the investigation inadequate.

39The applicant also argues that the ICRC should have taken a more active inquisitorial role and obtained patient files from Dr. Gannage’s practice. She ignores the fact that patients have a right to expect their medical records will remain private. The suggestion made by counsel during argument before this Court that Dr. Gannage could have provided summaries of patients’ records or provided a redacted version of the files ignores the important privacy interest of those patients that would be infringed by such action.

40The applicant points to s. 43(1)(c) of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A, which permits a physician to disclose personal health information to the College for purposes of the administration of the Regulated Health Professions Act. That provision does not compel disclosure by the physician, who has an obligation not to disclose personal health information without patient consent (see the College Policy on Confidentiality of Personal Health Information at pp. 3,4).

41While the ICRC could have asked for the appointment of investigators pursuant to s. 75(1)(c) of the Code to investigate further, it had a discretion whether to do so, given the nature of the particular case and the importance of respecting patient privacy. Here, it reasonably concluded that in the absence of any patient complaints relating to chelation therapy and in light of Dr. Gannage’s description of his practice, it was not necessary to appoint inspectors to inquire into his patients’ personal information. Notably, the Board has no authority to require the ICRC to appoint investigators.

42The Board also reasonably concluded that the ICRC was not required to retain an independent expert to investigate Dr. Gannage’s standard of practice. First, the Board observed that the ICRC is an expert body that regularly deals with screening complaints and reports to determine whether a referral to discipline is warranted. It has familiarity with the College policies, including the CAM Policy. The Board reasonably concluded that the ICRC members had sufficient information to carry out their screening role without the need for an expert.

43Moreover, when the ICRC retains an expert, it does so to determine if a physician meets the standard of practice in the treatment of patients. The Board concluded that any expert retained to review Dr. Gannage’s practice would require access to patient charts and patient-specific information in order to provide an opinion as to whether his use of chelation therapy met the standard of practice. As there was no patient information in the record, the Board reasonably upheld the ICRC decision not to retain an expert.

44Finally, the ICRC and the Board did not place a burden on the applicant to prove misconduct or to carry out an investigation herself. The Board concluded that the ICRC had adequate information, given the complaint, Dr. Gannage’s response, and the lack of any prior history with the College in relation to chelation therapy to allow the ICRC to fulfil its role without engaging in its own research into the scientific and medical literature in the treatment of autistic children.

45In my view, the applicant has not demonstrated that the Board made an unreasonable decision in concluding that the ICRC conducted an adequate investigation in accordance with its statutory mandate.

The Board reasonably concluded that the ICRC decision was reasonable

46The applicant argues that the Board’s decision was unreasonable. She submits that Dr. Gannage’s use of chelation therapy in treating children with ASD contravenes the CAM policy because it is ineffective and harmful and poses a greater risk to a patient’s health than the traditional or prevailing practice. She also argues that the Board’s decision was illogical because it said “the Board is not stating that there are no legitimate concerns about the use of chelation therapy in the treatment of autistic children with ASD. Clearly, there are” (at para. 69). However, the Board then concluded that the ICRC’s decision not to take further action against Dr. Gannage was reasonable despite these legitimate concerns.

47The Board concluded that the information before the ICRC did not demonstrate that chelation therapy for autistic children was ineffective or harmful. It also concluded that the information before the ICRC did not demonstrate that Dr. Gannage’s method of practice was unsafe, nor that it was in violation of the CAM Policy. Those were reasonable conclusions by the Board.

48As I said above, the ICRC’s role is to assess the standard of practice of an individual physician, not to determine, in the abstract, whether controversial alternative medicine theories are acceptable. The ICRC concluded that a physician’s compliance with the CAM Policy should be assessed in light of the needs of specific patients. That is a reasonable conclusion, given that s. 5.1 of the Medicine Act provides that a physician cannot be found to have committed professional misconduct solely because he has used an alternative treatment unless there is evidence that proves the therapy creates a greater risk to the patient’s health than the prevailing practice. As well, the CAM Policy sets out criteria that are patient-specific. Given the lack of patient specific information in the complaint and the generality of the information provided by the applicant, the ICRC concluded that there was no basis to determine that Dr. Gannage fell below the standard of practice.

49The Board was clearly aware of the ICRC’s role. In its reasons, the Board considered whether there was any scientific information before the ICRC that established chelation therapy for children with ASD was ineffective or posed a greater risk to patients than traditional treatment. It reasonably concluded that there was no such information. The following excerpts from the reasons of the Board are a good summary of its analysis. After acknowledging that there may be legitimate concerns about the use of chelation therapy for autistic children, it stated (at paras. 69-70),

69. … That said, however, the information before the Committee, upon which its decision is based, does not lead it inevitably to the conclusion that chelation therapy, in any circumstances, or more particularly, as used by the Respondent in his practice, is harmful to patients. Indeed, as stated above, there was no information of any of the Respondent’s patients having suffered harm caused by chelation therapy or, expressed another way, nothing to contradict the Respondent’s statement that he has never harmed any child with his treatments.

70. Further, the information presented to the Committee by the Applicant indicates that the scientific evidence regarding the use of chelation therapy to treat autism is scant, and what exists, though not supporting the use of chelation therapy in the treatment of autism, is nevertheless inconclusive, and does not go so far as to establish that the use of chelation therapy in the treatment of autism, in any circumstances, has been proven by scientific study to be ineffective.

50The applicant argues that there is faulty logic in the Board’s reasons because it acknowledged that there may be legitimate concerns about the use of chelation therapy and yet it concluded that the ICRC decision was reasonable. I see no failure of logic in the analysis of the Board. It identifies a public debate about the use of chelation therapy for autistic children, but concludes that science does not show that the use of chelation therapy is ineffective.

Conclusion

51The Board concluded that the investigation by the ICRC was adequate and the decision of the ICRC to take no further action against Dr. Gannage was reasonable. The Board’s reasons adequately and logically explain why it reached its decision, and the applicant has not demonstrated that the Board’s decision was outside a range of reasonable and acceptable outcomes. Accordingly, the application for judicial review is dismissed.

52The parties have agreed to bear their own costs.

___________________________ Swinton J.

I agree

Pattillo J.

I agree

Bloom J.

Date of Release: December 21, 2020

CITATION: King v. Gannage, 2020 ONSC 7967

DIVISIONAL COURT FILE NO.: DC 24/20