CITATION: Ahmed v. Ontario (Health Professions Appeal and Review Board), 2011 ONSC 4217
DIVISIONAL COURT FILE NO.: 549/09
DATE: 20110711
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUMMING, LAX AND SWINTON JJ.
BETWEEN:
DR. A.S.M. AKTER AHMED
Appellant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, AND THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondents
The Appellant, Dr. A.S.M. Akter Ahmed, self-represented
Steven G. Bosnick, for the Respondent, Health Professions Appeal and Review Board
Vicki White, for the Respondent, The College of Physicians and Surgeons of Ontario
HEARD: at Toronto, July 6, 2011
By The Court:
The Appeal
[1] The Appellant, Dr. A.S.M. Akter Ahmed, appeals the decision of the Health Professions Appeal and Review Board (“the Board”), which confirmed the decision of the Registration Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) to refuse to issue the Appellant a certificate of registration. Pursuant to s. 22(6) of the Health Professions Procedural Code (the “Code”), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 19, the Board confirmed the Order of the Committee directing the Registrar to refuse to issue Dr. Ahmed a certificate of registration.
[2] This Court has jurisdiction to hear this appeal pursuant to s. 70 of the Code.
[3] The Appellant submits that the Board breached the requirements of natural justice and procedural fairness in failing to provide the Appellant with adequate reasons for its decision. The Appellant also submits that the Board erred in failing to find that the Committee had denied the Appellant procedural fairness and natural justice.
[4] There is common ground that the standard of review applicable generally to Board decisions is that of “reasonableness”. Dunsmuir v. New Brunswick, 2002 SCC 11, [2002] S.C.J. No. 9 at paras. 45, 53-55 and 62-64. However, where a tribunal’s decision is challenged on the basis of a denial of natural justice, it is not necessary to engage in a standard of review assessment. London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.) at para. 10.
[5] The Appellant requests that the Board’s decision be set aside and that the Committee be ordered to direct the Registrar of the College to issue a certificate of registration on terms the Court considers appropriate. Alternatively, the Appellant requests that the Committee direct the Registrar to issue a certificate of registration if he completes any examination or training as specified by the Committee. In the further alternative, the Appellant requests a differently constituted panel of the Committee to conduct a rehearing or the matter be remitted to the Board for reconsideration.
The Evidence
[6] Dr. Ahmed is a medical graduate from Bangladesh. He has practised in the United States for some years, reportedly arriving there as a refugee. He seeks a certificate of registration from the College, being a prerequisite to practising medicine in Ontario.
[7] There are two main ways by which foreign trained physicians can be registered in Ontario. First, pursuant to s. 3 of O. Reg. 865/93, a candidate, subject to meeting certain qualifications, can complete parts 1 and 2 of the Medical Council of Canada Qualifying Examination and obtain a Certificate by examination by the College of Family Physicians of Canada or the Royal College of Physicians and Surgeons of Canada. Dr. Ahmed chose not to pursue this route.
[8] Second, and alternatively, a foreign trained doctor can obtain registration through the Practice Assessment Program (called the “RPA”, meaning “Registration through Practice Assessment”). If the Committee believes an applicant’s practice meets the standard of a physician in Ontario, the Committee can exempt the applicant from the requirements of s. 3 of O. Reg. 865/93 and issue a certificate of registration with terms and conditions, including that there be supervision provided by a peer certified in the same specialty. At the final stage, there is a peer assessment by another certified peer.
[9] Every candidate must also meet certain non-exemptible standards for a certificate of registration, as specified by s. 2(1) of O. Reg. 865/93, which provides:
- (1) It is a non-exemptible standard and qualification for a certificate of registration that the applicant’s past and present conduct afford reasonable grounds for belief that the applicant,
(a) is mentally competent to practise medicine;
(b) will practice medicine with decency, integrity and honesty and in accordance with the law;
(c) has sufficient knowledge, skill and judgment to engage in the kind of medical practice authorized by the certificate; and
(d) can communicate effectively and will display an appropriately professional attitude.
[10] Dr. Ahmed proceeded to apply in September 2004 via the second route of the RPA Program for a certificate of registration.
[11] A practice assessment was arranged for the last week of October 2005. However, Dr. Ahmed had not then finalized his credentialing information, nor provided a schedule to the assessor with respect to on-site interviews and had not obtained patient consent for the assessor to review his medical records.
[12] In early 2006, Dr. Ahmed reinitiated his request to participate in the RPA program. On August 11, 2006, the Committee issued to him a restricted, conditional certificate of registration, valid until February 11, 2007.
[13] Dr. Ahmed had been advised in January 2007 by the RPA staff of the importance of maintaining his active practice in the United States until such time as he was informed by the Committee that his practice had been assessed; however, in March 2007, he told the RPA staff that he had sold his practice. (Committee Reasons and Decision page 10)
[14] In April 2007, the Committee again reviewed Dr. Ahmed’s status and advised him he could not begin practice in Ontario until a number of conditions were met, including a requirement that he prepare a detailed plan for Continuing Professional Development for review and satisfactory supervision arrangements were made.
[15] Dr. Ahmed was required to provide a Continuing Professional Development Plan, and undergo a practice assessment after six months and a peer assessment after a year of supervised practice. His supervisor was to conduct periodic performance reviews. The certificate of registration would expire if the reports received were unsatisfactory or his supervisor resigned. Dr. Ahmed agreed on May 14, 2007 to the terms and conditions of the certificate of registration.
[16] The Committee sets forth at length in its Reasons and Decision (at pages 11-13) the shortcomings in the progress of Dr. Ahmed in meeting its conditions; nevertheless, the Committee directed that, upon receipt of the signed undertakings for supervision, a restricted certificate of registration be issued.
[17] Dr. Ziter was appointed as Dr. Ahmed’s supervisor. Dr. Ahmed began his practice in Windsor on September 17, 2007 with Dr. Ziter as his supervisor.
[18] Dr. Ziter provided his first supervision report to the College on October 4, 2007. Dr. Ziter expressed concerns regarding Dr. Ahmed’s knowledge in certain areas of medicine (including women’s health, paediatrics, psychosocial matters and immunization guidelines).
[19] Dr. Ziter gave examples to the RPA staff as to perceived “large gaps in Dr. Ahmed’s knowledge”. Examples cited were that Dr. Ahmed had asked Dr. Ziter what a total knee replacement was and had queried as to why a diabetic patient could not have sugar.
[20] Dr. Ziter reported that he had several conversations with Dr. Ahmed regarding the inappropriateness of receiving payments from pharmacists and other health care providers. Dr. Ziter says Dr. Ahmed claimed he received some $30,000 per year from such referrals in the United States. Dr. Ziter was also concerned that Dr. Ahmed apparently considered that certain people in power were in fact “aliens” and made such bizarre comments as “the Queen is drinking human blood and eating babies”. (Committee Reasons and Decision pages 14 and 15)
[21] Dr. Ziter expressed the belief that Dr. Ahmed “required residency training of at least two years and basic training in boundaries, ethics and behaviour”. Dr. Ziter also expressed “concerns about [Dr. Ahmed’s] mental health”. (Para. 15, Board Order and Reasons) Dr. Ziter queried whether the College would consider steering Dr. Ahmed into suitable residency training.
[22] A second supervision report was provided on November 14, 2007. The Committee reviewed Dr. Ahmed’s status in the RPA Program on November 23, 2007 and gave specific directions for upgrading. Dr. Ahmed was to spend 50% of his time in an education upgrading program, as detailed by Dr. Ziter, with the physicians providing the program giving monthly evaluations. (Board’s Order and Reasons para. 16)
[23] The Committee reviewed Dr. Ziter’s December 5, 2007 report as supervisor on December 10, 2007 and directed that Dr. Ahmed submit a complete plan for educational upgrading and undergo a Physician Review and Enhancement Program (“PREP”) assessment at McMaster University in March 2008 in place of a practice assessment. (Board’s Order and Reasons para. 17)
[24] Dr. Ahmed submitted a Continuing Professional Development plan for the Committee’s consideration on December 28, 2007.
[25] Dr. Leung had been requested by Dr. Ziter to mentor Dr. Ahmed in the area of obstetrics and gynaecology. However, after meeting with Dr. Ahmed, Dr. Leung declined to serve as supervisor, expressing grave concerns about Dr. Ahmed’s skills. Given the extent of training Dr. Leung thought Dr. Ahmed required, Dr. Leung thought that supervision was inappropriate. (Board’s Order and Reasons para. 19)
[26] On January 30, 2008, Dr. Ahmed reportedly contacted RPA staff for clarification on the PREP program and during the conversation made accusations that Dr. Ziter “was connected with the Italian mafia” and that “Dr. Ziter could kill me”. (Committee Reasons and Decision page 18)
[27] Dr. Ziter resigned as supervisor on February 15, 2008. The Committee then informed Dr. Ahmed that his certificate of registration had terminated by its terms and conditions, one of which was that he must have a supervisor.
[28] Dr. Ziter stated in a last report of March 24, 2008 that Dr. Ahmed “had not followed up with preceptors as requested” and “expressed concerns about Dr. Ahmed’s mental health”. (Board Order and Reasons para. 21)
[29] The Committee advised Dr. Ahmed on February 20, 2008 that, if he wished to be reinstated in the RPA Program, he was to attend for the PREP assessment and also undergo a psychiatric assessment.
[30] On February 28, 2008, the College received a rambling submission from Dr. Ahmed dated February 15, 2008 which included extensive excerpts from the booklet Children of the Matrix by David Icke (see pages 000106, 00109-000120 of the Exhibit Book).
[31] On March 26, 2008, Dr. Ahmed underwent a PREP assessment at McMaster University with the results received by the College on May 27, 2008.
[32] Dr. Ahmed did not attend his scheduled psychiatric appointment with Dr. Stewart Woodside due to some confusion as to the doctor’s address. The appointment was rescheduled but Dr. Ahmed then refused to attend for a psychiatric examination. He also did not pursue a recommended psychological assessment with Dr. Percy Wright. (Board Order and Reasons para. 24)
[33] The Committee determined on June 19, 2008 that Dr. Ahmed could not be granted a certificate of registration as he did not fulfill three of the four non-exemptible criteria for registration (set forth in paragraph 9 above). The assessors found that he lacked sufficient knowledge, skill and judgment to practice family medicine, particularly in the area of medication prescribing. (Board’s Order and Reasons para. 38, referencing the report of Dr. Cunningham, Director of the Physician Review and Enhancement Program.)
[34] The report of Dr. Cunningham noted (on page 1 in the Summary of Assessment) that:
On the multiple choice test [Dr. Ahmed] scored 62%, which indicates an average knowledge base but the assessor’s report documents multiple and extensive knowledge deficits in common problems in family medicine, particularly in the areas of medication prescribing.
[35] The Committee noted the results from the PREP assessment which ranked Dr. Ahmed “in the category description of competence as Category 4, Severe Deficiency – Potential Risk to Patient Safety”. (Board Order and Reasons para. 26)
[36] The Committee found that Dr. Ahmed did not meet the non-exemptible requirements of s. 2 (1)(a), (c) and (d). In expressing its concern as to mental competence to practice medicine, the ability to communicate effectively and to display a professional attitude, the Committee made its determination from information received in Dr. Ziter’s review reports and from Dr. Ahmed’s own submissions to the Committee. The Board was of the view that the information in the material properly before the Committee provided a reasonable basis for this determination. (Board Order and Reasons para. 41)
[37] The Committee’s Order dated June 19, 2008 directed the Registrar to refuse to issue to Dr. Ahmed a certificate of registration.
[38] Dr. Ahmed sought a written review by the Board of the Committee’s decision, requesting that he be granted a certificate of registration and that references to his PREP and psychiatric issues be erased from his record. The Board declined this request.
[39] Dr. Ahmed asserts that the Committee acted beyond its authority in requiring a PREP assessment. We disagree. The Committee is entitled to require any reasonable mode of assessment in furtherance of fulfilling its mandate to assess competence in meeting the prerequisites to obtaining a certificate of registration through the RPA. The PREP is reportedly commonly utilized by the College on an ongoing basis to assess physician competence and for quality assurance. In our view, the PREP report in the instant situation is thorough and objective.
[40] Moreover, although the Committee indicated it required a PREP assessment in late 2007, the actual implemented assessment took place March 26, 2008, after Dr. Ahmed’s conditional certificate of registration had ended February 15, 2008. At that point in time, the Committee was extending to Dr. Ahmed a further opportunity to establish his competence in meeting the criteria for a certificate of registration.
[41] Dr. Ahmed submits that he was disadvantaged because his patient charts were not made available for the PREP assessment. Ms. Carol Shapiro of the College had undertaken in an email dated February 29, 2008 to “contact Dr. Ziter to determine the availability of patient charts and take responsibility for obtaining them.” However, she also stated,
As you are no longer in practice, should charts not be available to us, we will inform PREP and they will make any adjustments to your assessment accordingly. The PREP program has experience with such issues and can accommodate the assessment to adjust for unique features.
[42] Dr. Cunningham’s PREP assessment report is clear that while no charts were available “to assess for record keeping” that a “chart stimulated recall” used in PREP assessments was employed “to explore [Dr. Ahmed’s ] depth and knowledge.”
[43] On appeal to the Board, the Board found (Board Order and Reasons para. 39) that the results of the PREP assessment reasonably supported the Committee’s conclusion that:
...Given the extent of the deficits it appears reasonable to express significant reservations about the capacity of this physician to remediate these problems. The deficiencies are serious and extensive and without their being rectified the PREP Program does not believe that this physician will be able to function at the level required by the College and expected by the community.
[44] On June 4, 2009, the Board found that the Committee reasonably concluded that Dr. Ahmed lacked sufficient knowledge, skill and judgment to practice medicine in Ontario given the extent of the serious and extensive deficits detailed in the PREP report that were relied upon by the Committee.
Disposition
[45] In our view, the Committee and Board each complied with the requirements of natural justice and procedural fairness in dealing with Dr. Ahmed’s request for a certificate of registration. In particular, there is no evidence to support Dr. Ahmed’s allegation that Dr. Ziter was biased. We find on the evidentiary record that the Committee acted with fairness and made reasonable efforts to give Dr. Ahmed the opportunity to establish that he met the qualifications for a certificate of registration.
[46] The Committee’s and Board’s decisions provide an adequate explanation for the basis on which the decisions were reached. The decisions permit effective judicial review.
[47] The Board reasonably concluded that the Committee met the standard of reasonableness in refusing to issue to Dr. Ahmed a certificate of registration because he had failed to demonstrate that he had the skills, knowledge and judgment required to practise medicine in Ontario, had not demonstrated that he is mentally competent to practise medicine and had not established that he can communicate effectively and will display an appropriate professional attitude.
[48] Indeed, it is noted the appeal does not apparently challenge the findings in respect of the latter two non-exemptible criteria, namely, that Dr. Ahmed had not demonstrated that he is mentally competent to practice medicine nor that he can communicate effectively and display an appropriate professional attitude.
[49] For the reasons given, the appeal is dismissed.
[50] Submissions were made as to costs. We award costs in favour of the Respondent The College of Physicians and Surgeons in the amount of $3500., inclusive of fees, all disbursements and HST, such amount being payable by the Appellant to the said Respondent within 30 days.
CUMMING J.
LAX J.
SWINTON J.
Released: July 11, 2011
CITATION: Ahmed v. Ontario (Health Professions Appeal and Review Board), 2011 ONSC 4217
DIVISIONAL COURT FILE NO.: 549/09
DATE: 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUMMING, LAX AND SWINTON JJ.
BETWEEN:
DR. A.S.M. AKTER AHMED
Appellant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, AND THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondents
REASONS FOR JUDGMENT
BY THE COURT
Released: July 11, 2011