CITATION: Hanson v. College of Physicians, 2021 ONSC 513
DIVISIONAL COURT FILE NO.: 212/20
DATE: 20210127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, KRISTJANSON AND FAVREAU JJ.
BETWEEN:
DR. PAUL RUSSELL HANSON
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Jeffrey E. Feiner and Hilary Brown, for the Appellant
Amy Block and Kirk Maijala, for the Respondent
HEARD: September 1, 2020
NOTICE
In this proceeding, the Discipline Committee of the College of Physicians and Surgeons pursuant to s. 45(3) of the Health Professions Procedural Code (the “Code) which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended, ordered that no person shall publish or broadcast the names or any information that could disclose the identity of patients referred to orally or in the exhibits filed at the hearing.
L. A. PATTILLO J.:
Introduction
[1] On February 12, 2020, based on an agreed statement of facts and an admission of liability by the Appellant, Dr. Paul Russell Hanson, a Panel of the Disciplinary Committee (the “Committee”) of the Respondent College of Physicians and Surgeons of Ontario (the “College”) found the Appellant had committed three acts of professional misconduct. A penalty hearing followed after which the Committee reserved its decision.
[2] On May 8, 2020, the Committee issued detailed reasons dealing with both liability and penalty. With respect to penalty, it ordered that the Appellant appear before the Committee to be reprimanded; that the Registrar revoke the Appellant’s certificate of registration effective immediately; and that the Appellant pay the College’s costs of the one-day hearing within 90 days.
[3] On this appeal, the Appellant seeks only to set aside the Committee’s May 8, 2020 decision revoking his certificate of registration.
[4] For the reasons that follow, I dismiss the appeal.
Background
[5] The Appellant is 61 years old and received his certificate of registration from the College in 1992. He carries on a general practice with offices in Windsor and Chatham, Ontario.
[6] On July 25, 2018, the Committee issued a Notice of Hearing alleging that the Appellant committed professional misconduct by failing to maintain the standard of practice of the profession; engaging in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members of the College as disgraceful, dishonourable or unprofessional; and had been found guilty of an offence relevant to his suitability to practice. The Notice also alleged that the Appellant was incompetent.
a) Liability
[7] The facts giving rise to the College’s allegations of professional misconduct and which were admitted by the Appellant at the hearing are as follows:
- Guilty of an offence relevant to suitability to practice.
[8] In 2010, following a three-year investigation, the Appellant was charged with theft over $5,000 contrary to s. 380(1) of the Criminal Code in respect of alleged billing OHIP for services not provided.
[9] On May 9, 2013, the Appellant pleaded guilty to an offence under s. 37.1(1) of the Health Insurance Act for failing to maintain records as may be necessary between January 1, 2000 and February 4, 2009 to establish he provided insured services. The Crown withdrew the charge of theft over $5,000. The Appellant was ordered to pay $2,500 in restitution to the Ministry of Health and Long-Term Care and fined $7,500.
- Failing to maintain the standard of practice of the profession/ incompetence.
[10] As a result of the issues raised in the criminal proceedings, the College appointed two medical investigators (a family physician and an internist) to investigate whether the Appellant engaged in professional misconduct or was incompetent in his general practice, with particular focus on general assessments, sigmoidoscopies, pulmonary function tests and EKGs (the four procedures investigated in the criminal proceedings).
[11] The investigators reviewed 30 charts from the Appellant’s practice, 15 over the timeframe 2000 to February 2008 and 15 from February 2008 to 2016. They delivered their reports in 2018. The investigators noted significant concerns regarding the Appellant’s ability to meet the standards of practice with respect to patient assessment and treatment as well as record keeping. They concluded the Appellant lacked knowledge and judgment.
- Conduct relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[12] In September 2015, the College received a complaint that in August 2015, the Appellant’s staff person administered a vaccine to the complainant’s child. The Appellant subsequently provided inconsistent, inaccurate and misleading information to the College during its investigation. He falsely maintained he had administered the vaccine, manufactured a false patient encounter note which he claimed was contemporaneous with the event and lied about why the note did not appear in his electronic record. He also claimed that he could not recall the circumstances in which he made the note. Further, during the investigation, the Appellant approached his receptionist and asked her to take responsibility for the note. It was not until the hearing that the Appellant admitted that he had not administered the vaccine and had misled the College’s investigation.
[13] Following the Appellant’s admission of liability to the allegations of professional misconduct and based on the agreed facts, the Committee found that the Appellant committed professional misconduct as alleged. The College withdrew the allegation of incompetence. The parties then proceeded to the penalty portion of the hearing.
b) Penalty
[14] The College submitted that the appropriate penalty was revocation of the Appellant’s certificate of registration; requiring him to appear for a reprimand and costs of the hearing.
[15] In response, the Appellant agreed to the reprimand but submitted that the appropriate penalty would be a 12-month suspension of his certificate of registration followed by 12 months clinical supervision, an assessment of his practice six months after the clinical supervision and requiring that he cannot conduct sigmoidoscopies, pulmonary function tests or EKGs.
[16] The parties filed a further agreed statement of facts in respect of penalty which set out in great detail the Appellant’s history with the College’s Disciplinary Committee, its Inquiries, Complaint and Reports Committee (“ICRC”) and the ICRC’s predecessor, the Complaints Committee, beginning with a complaint in 2000 and concluding with a complaint dealt with by the ICRC in July 2018.
[17] In total, and excluding the matters in issue, the Appellant’s disciplinary history encompassed two prior Discipline Committee hearings and 11 decisions of the ICRC or Complaints Committee which resulted in the Appellant:
Being suspended from practice in 2001 for six months, reduced by three months upon completion of an ethics course;
Receiving two reprimands;
Being cautioned five times;
Being counseled once;
Being referred to the Quality Assurance Committee to address clinical issues and poor records;
Being required to take numerous educational courses concerning clinical issues, record keeping and ethics;
Undergoing clinical supervision and/or re-assessment of his practice on three separate occasions; and
Entering into three separate undertakings with the College concerning his practice and health.
[18] Over the 18-year period, the Appellant’s issues with the College involved ethical issues, a variety of clinical matters, repeated record keeping issues and health issues. In particular:
a) Ethical
i. In August 2001, the Discipline Committee found the Appellant falsified a clinical record. In addition to being suspended, the Appellant completed a course in ethics;
ii. In June 2010, the ICRC cautioned the Appellant regarding the inappropriateness of prescribing medication to his wife which he falsely represented to the pharmacist was his sister-in-law;
iii. In March 2015, the ICRC cautioned the Appellant regarding the inappropriateness of automatically sending prescriptions to an adjacent pharmacy in the absence of patient consent. He was directed to complete specified continuing education and remediation programs in ethics.
iv. In July 2016, the Appellant was directed, among other things, to review the College’s policy statement regarding professionalism and the CMA Code of Ethics.
b) Clinical
v. The Appellant was disciplined with respect to various clinical issues in July 2001, May 2009, March 2012 (regarding actions in 1998-1999), July 2016, and January 2018.
c) Record Keeping
vi. The record keeping issues first surfaced in July 2001 and reoccurred sometimes on their own but generally in conjunction with the clinical issues in May 2009, October 2012, April 2015, July 2016, and January 2018.
vii. In April 2015, the Appellant was ordered to complete a medical record keeping course. In July 2016, he was directed to review, among other things, the College’s policy statement on record keeping.
d) Health
viii. In March 2004, having been diagnosed with substance dependence, the Appellant entered into an undertaking with the College whereby he relinquished his prescribing privileges with respect to all controlled drugs and substances by March 1, 2002 which he did;
ix. In July 2009, following the Appellant’s admission to hospital due to a drug overdose, he entered into a Health Monitoring undertaking with the College whereby he agreed to participate in a five-year treatment and monitoring program with regard to his opioid use disorder; sedative; hypnotic and anxiolytic use disorder; and bipolar disorder. At the time of the hearing the Appellant was compliant with the undertaking.
[19] As noted above, the Appellant’s practice has been subject to three clinical supervisions and/or re-assessments as follows:
i. On April 16, 2009, the Appellant entered into an undertaking agreeing to restrict his cosmetic practice, cease performing any surgical procedures, undertake the Physician Review Program, engage a clinical supervisor to review all aspects of his practice and submit to a re-inspection of his practice after approximately 12 months. Both the clinical review and the subsequent re-inspection were satisfactory;
ii. In April 2015, as a result of the Appellant’s inadequate record keeping, the ICRC ordered the Appellant to, among other things, submit to a re-assessment of a minimum of 15 charts approximately six months after completion of the record keeping course. The reassessment was completed in April 2017 and concluded that the Appellant failed to maintain the standard of the profession for record keeping in respect of all 15 charts reviewed.
iii. On February 2, 2018, as a result of the April 2017 negative re-assessment of the Appellant’s record keeping, the Appellant entered into an undertaking with the College whereby he undertook to:
a) practice under the guidance of a clinical supervisor for 12 months, meeting once every week for the first month and once every month thereafter to review at least 10 patient charts during the first month and 10-15 charts at every meeting thereafter; and
b) undergo a re-assessment of his practice approximately six months after completing the clinical supervision.
[20] Pursuant to the Appellant’s above undertaking, the clinical assessment took place between March 27, 2018 and April 16, 2019. During that period, the Appellant’s clinical supervisor issued 15 reports. In the final report dated April 16, 2019, the clinical supervisor observed that, among other things, while there were significant deficiencies in the Appellant’s practice at the beginning of the supervision (in areas of history taking, physical examination, laboratory tests and record keeping), the quality of the Appellant’s documentation of patient encounters had improved significantly; that he was making good use of documentation tools; and that they had discussed numerous topics in regards to family medical practice.
c) Subsequent Evidence
[21] At the time of the hearing, the subsequent re-assessment of the Appellant’s practice was still underway and accordingly no report was available from the physician conducting the reassessment. The reassessment report was subsequently issued on February 29, 2020.
[22] On April 6, 2020, while the decision on penalty was still under reserve, the Committee granted the Appellant’s motion to re-open the penalty phase of the hearing to admit the reassessment report and permit submissions in respect of it. The reassessment report was subsequently filed with the Committee in a Supplemental Agreed Statement of Facts together with written submissions. The reassessment report concluded that the Appellant was a skilled physician, his charting consistently met the standard of care, he did not expose his patients to danger and did not lack judgment or knowledge.
The Committee’s Reasons
[23] As mentioned at the outset, the Committee’s reasons with respect to both liability and penalty were released on May 8, 2020. After dealing first with the agreed facts in respect of lability and its findings of professional misconduct, the Committee next set out the Appellant’s agreed disciplinary record in detail.
[24] In its discussion of penalty, the Committee first noted the relevant penalty principles in play including protection of the public, general deterrence, maintenance of public confidence in the regulation of the profession, rehabilitation, where appropriate, proportionality to the misconduct and reasonable consistency with previous disciplinary decisions in similar cases.
[25] The Committee then considered both the aggravating and mitigating factors. In respect of the former, it found five aggravating factors: the fact that the misconduct was not an isolated incident but rather repeated; that the Appellant put patients at the risk of harm; that he failed to properly support his claim for OHIP funds; his lack of integrity and dishonesty in respect of the vaccine incident and that he asked his receptionist to accept the blame; and his lengthy history of complaints and discipline with the College.
[26] With respect to the mitigating factors, while the Committee acknowledged the Appellant’s admission of professional misconduct avoided a contested hearing and the need for a number of witnesses to testify, it gave this factor little weight given he had admitted wrongdoing on previous occasions only to have the behaviour recur. The Committee also had difficulty accepting the Appellant’s expression of remorse for the same reason.
[27] The Committee rejected the Appellant’s submission that the passage of time, that is findings relating to conduct that occurred several years prior, could be considered a mitigating factor on the basis the principles of deterrence and denunciation remain important despite the passage of time.
[28] In considering remediation, the Committee noted that overall, it was seriously concerned with the frequency of complaints of the Appellant. It reviewed the Appellant’s history, including the prior opportunities for remediation and the extent to which the misconduct reoccurred in respect of his record keeping, clinical deficiencies and deficiencies concerning honesty and integrity. It concluded that the Appellant already had several opportunities at rehabilitation, without success and that his improvements were not sustained over time.
[29] With respect to honesty and integrity, the Committee noted it had “serious concerns” given the similarities between the vaccine incident and the finding in 2001 that the Appellant falsified a medical record. The Committee was struck by the fact that in the interim, the Appellant had completed a significant amount of ethics education.
[30] In light of the particular facts of the case, the Committee stated that it was not persuaded that specific deterrence and remediation should not be the governing principles for penalty.
[31] The Committee found the Appellant lacked true insight given his repeated appearances before the College, the mandated courses and policy reviews, as well as the clinical supervision he has experienced.
[32] The Committee carefully considered the cases before it including both College cases where the penalty imposed was revocation as well as other cases from other regulatory bodies where a lesser penalty was imposed.
[33] Based on the serious, repetitive nature of the Appellant’s misconduct together with the fact he has not benefitted from repeated efforts of rehabilitation, the Committee concluded that only revocation of his certificate or registration would satisfy the penalty principles at play. Considering the Appellant’s agreement, the Committee also agreed a reprimand was required and ordered the Appellant to pay the costs of the hearing.
Standard of Review
[34] Sections 70(1) and (2) of the Health Professions Procedure Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the “Code”) provide that an appeal lies to this court from a decision of the Discipline Committee on questions of law or fact or both.
[35] As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37, where the legislature has provided for an appeal from an administrative decision to a court, the appellate standard of review applies. That standard is correctness in relation to an error of law; palpable and overriding error with respect to findings of fact and mixed fact and law (except where there is an extricable error of law, in which case it is correctness): Housen v. Nikolaisen, 2002 SCC 33.
[36] While Vavilov does not address the standard of review where, as here, the appeal from a regulatory tribunal is with respect to penalty alone, that issue was addressed by this court in the recent case of Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (SCDC). At para. 18 of that decision, Penny J., on behalf of the court, stated:
It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly of manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties imposed in other cases. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONSC 420 at para. 56.
Position of the Parties
[37] The Appellant submits that the Discipline Committee erred in principle:
In relying on the Appellant’s entire disciplinary conduct to find that he was irremediable;
In failing to consider the Appellant’s health and substance abuse issues as a mitigating factor in its decision;
In failing to consider his compliance with past undertakings, practice restrictions and orders by the College; and
In imposing a penalty that was not proportional.
[38] The College submits the Committee committed no palpable or overriding error or error in principle in concluding based on the evidence and considering the serious and repetitive nature of the misconduct, that the Appellant’s certificate should be revoked.
[39] The College takes issue with the Appellant’s submissions of Committee error and submits the Committee’s decision is well reasoned, is based on the evidence before it and is in keeping with established penalty principles. Further, the penalty is proportionate to the misconduct.
Analysis
I. Prior Disciplinary Conduct
[40] The Appellant submits that the Committee erred in its conclusion he was irremediable based on its consideration of his prior disciplinary conduct. Specifically, he submits:
a) the Committee erred in principle in considering conduct that occurred after much of the conduct in issue as “prior history”;
b) the conduct forming the basis of the Committee’s penalty pre-dates the Appellant’s latest remediation efforts which the evidence demonstrates were successful; and
c) the Committee failed to provide the Appellant with the opportunity to demonstrate that his remediation is sustainable.
[41] In my view, the Committee did not err in considering the entirety of the Appellant’s disciplinary conduct. The Committee found that the time frame of the misconduct spanned 18 years (the OHIP conviction is based on billings between 2000 and 2009; the subsequent College investigation involved a review of patient care from 2000 to 2016; and the vaccine incident began in 2015 and continued up to the hearing) resulting in the period of misconduct overlapping with the period during which the Appellant’s prior disciplinary issues occurred.
[42] In any event, when considering penalty, the Committee was entitled to consider the whole of the Appellant’s disciplinary record, including conduct which occurred after the conduct that led to the misconduct in issue. See: Galassi v. Hamilton Police Service, 2005 20789 (ON SCDC) at para. 35
[43] In my view, the Appellant’s main complaint concerning the Committee’s conclusion that he was irremediable, is that the majority of his poor conduct arising from his disciplinary record and relied upon by the Committee, occurred before the “significant rehabilitative effort” that began with his clinical supervision in 2017 and culminated in the reassessment report of February 29, 2020.
[44] The Committee, however, considered both the reports arising from the Appellant’s clinical supervision in between March 2018 and April 2019 and the February 2020 reassessment report in coming to its conclusion that the Appellant was irremediable.
[45] In respect of the clinical assessment, the Committee noted that while there were improvements over the course of the year, there were significant clinical deficiencies at the outset in spite of the College’s prior extensive involvement in addressing the Appellant’s deficiencies. The Committee also noted the supervision involved a review of the Appellant’s charts and did not speak to his integrity and honesty.
[46] The Committee also considered the reassessment report as well as the submissions of both parties. It concluded:
The Committee considered the [reassessment report] and the evidence of recent improvements by Dr. Hanson. While Dr. Hanson has shown recent practice improvements in some areas of concern (i.e. certain charting deficiencies), the Committee notes that Dr. Hanson has had repeated opportunities to remediate, which often result in only short term improvements. His history with the College shows that improvements are rarely sustained. Further, the [reassessment report] does not address the repeated ethical breaches (detailed above). The Committee is also concerned that the [reassessment report] suggests that Dr. Hanson continues to lack insight, as he continues to deflect blame for his use of non-standard abbreviations to his EMR system.
[47] I disagree that the Committee’s decision deprived the Appellant of the ability to demonstrate the sustainability of his rehabilitation. The Appellant was given many opportunities to demonstrate that and failed to do so.
[48] The Committee’s decision that the Appellant was irremediable was based on its consideration of the Appellant’s lengthy disciplinary record, that he already had several opportunities at rehabilitation, without success and that his improvements were not sustained over time. In reaching that conclusion the Committee considered both the 2018-2019 clinical assessment and the subsequent reassessment. The Committee made no error in principle.
II. Failure to consider health issues
[49] The Appellant submits that contrary to established penalty principles and prior cases, the Committee erred in failing to consider his mental health and substance abuse issues as a mitigating factor in the penalty decision. I disagree.
[50] While there was evidence before the Committee of the Appellant’s diagnosis of substance use and bipolar disorders and that he had been subject to health monitoring since 2019, there was no evidence or submissions made to the Committee that the Appellant’s mental health or the treatment of his disorders in any way contributed to the misconduct in issue.
[51] In the absence of such evidence or submissions, the Committee did not err in not considering those issues as mitigating factors. There must be some connection in the evidence between the health issue and the misconduct in question before the matter can be considered in respect of penalty.
[52] I would not give effect to this ground of appeal.
III. Compliance with undertakings
[53] The Appellant submits that the Committee erred in principle in failing to consider his past compliance with undertakings and practice restrictions in determining he was irremediable.
[54] The Appellant entered into three undertakings with the College over the course of his long disciplinary history; in March 2004, April 2009 and February 2018. The undertakings dealt with both practice restrictions (2004 and 2009) and remedial measures involving clinical supervision and subsequent reassessment (2009 and 2018).
[55] In coming to its conclusion that the Appellant had not benefited from repeated efforts at rehabilitation, the Committee reviewed the entirety of the Appellant’s disciplinary history, including the undertakings. Based on that review, the Committee found:
Dr. Hanson has had ample opportunities for remediation, without lasting benefit. The Committee finds that Dr. Hanson’s failure to remediate is similar to that observed in Savic [ Ontario (College of Physicians and Surgeons of Ontario) v. Savic, 2019 ONCPSD 40], in which the Discipline Committee stated: “While Dr. Savic has responded to the direction of the College in the sense that he completed the educational courses required of him, attended cautions, and worked under supervision, the Committee finds that they have had little or no impact and that he had made few of the fundamental changes necessary”.
[56] The above finding was supported by the Appellant’s April 2009 undertaking which required him to take the Physician Review Program and engage a clinical supervisor to review all aspects of his practice followed in 12 months by a reassessment of his practice. While both the clinical review and reassessment were satisfactory, the Appellant subsequently had numerous conduct issues.
[57] Nor did the Committee fail to consider the February 2018 undertaking. As noted, it considered in some detail the issues arising out of both clinical supervision and reassessment resulting from that undertaking.
[58] I would not give effect to this ground of appeal either.
IV. Proportionality
[59] The Appellant submits the Committee erred in principle by failing to consider the principle of proportionality. The Appellant submits the Committee failed to tailor the penalty to his circumstances and to consider his proposed penalty of a 12-month suspension.
[60] Given the evidence before the Committee together with its findings, I do not consider the penalty imposed on the Appellant of revocation was disproportionate. The misconduct in question involved clinical matters, record keeping, as well as integrity and dishonesty issues. In light of the serious, repetitive nature of the Appellant’s misconduct, the lengthy history of disciplinary matters and the fact that the Appellant had not benefitted from repeated efforts at rehabilitation, the Committee’s conclusion that rehabilitation was not a factor supports a penalty of revocation having regard to the principles in play, protection of the public, general deterrence and public confidence in the regulation of the profession.
[61] The penalty proposed by the Appellant of a 12-month suspension followed by supervision and reassessment does not meet those principles.
[62] Finally, while no two cases are alike, the penalty of revocation is consistent with the misconduct in the cases of revocation the Committee considered, particularly College of Physicians and Surgeons v. Wu, 2020 ONCPSD 1 and Savic. Revocation is not limited to matters of incompetence or breach of an undertaking.
[63] I am satisfied the penalty of revocation was proportionate.
Conclusion
[64] For the above reasons, I am satisfied the penalty of revocation is not ”clearly unfit.” The appeal is dismissed.
[65] The College is entitled to its costs of the appeal which the parties have agreed are $6,500. In my view, given the issues and the argument, that amount is fair and reasonable.
[66] The publication ban noted at the outset applies to these reasons and all material filed on the appeal.
L. A. Pattillo J.
I agree _______________________________
F. Kristjanson J.
I agree _______________________________
L. G. Favreau J.
Released: January 27, 2021
CITATION: Hanson v. College of Physicians, 2021 ONSC 513
DIVISIONAL COURT FILE NO.: 212/20
DATE: 20210127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, KRISTJANSON AND FAVREAU JJ.
BETWEEN:
DR. PAUL RUSSELL HANSON
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
PATTILLO J.
Released: January 27, 2021