CITATION: Nahas v. HPARB, 2022 ONSC 7194
DIVISIONAL COURT FILE NO.: 546/19
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND, MATHESON & O’BRIEN JJ.
BETWEEN:
DR. RICHARD NAHAS
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS and MICHAEL BROWN
Respondents
Mathew Wilton, for the Applicant
Sayran Sulevani, for the Respondent College of Physicians and Surgeons
David P. Jacobs, for the Health Professions Appeal and Review Board
Michael Brown, Self-Represented
HEARD at Toronto: December 15, 2022 (by videoconference)
REASONS FOR DECISION
By the Court:
[1] The applicant, Dr. Richard Nahas, has applied for judicial review of the decision of the Health Professions Appeal and Review Board (“HPARB”) dated April 16, 2019, confirming the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons dated June 14, 2018.
[2] These proceedings arise from a complaint by the respondent Michael Brown regarding the applicant’s treatment of Mr. Brown’s common law spouse (the “patient”). The ICRC investigated the complaint and did not refer the matter to a discipline hearing. The ICRC concluded that the applicant should receive a caution and complete a specified continuing education or remediation program (“SCERP”). HPARB confirmed that decision.
[3] This application for judicial review is dismissed for the reasons set out below.
Brief background
[4] Mr. Brown filed a complaint with the College by letter received November 14, 2017. His letter alleged that the applicant had provided complementary medicine to the patient that was not medically indicated, including recommending IV chelation therapy for heavy metal poisoning, and by profiting from unethical practices. The complaint letter was provided to the applicant along with information about the complaints process and related material.
[5] The ICRC undertook its investigation of the complaint. The patient refused to consent to the release of the applicant’s medical records about her treatment. The ICRC therefore requested that the Registrar obtain the medical records. Under s. 75(1)(c) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, the Registrar of the College may appoint an investigator where the ICRC has received a written complaint and has requested that the Registrar conduct an investigation. The Registrar proceeded to obtain the applicant’s medical records about the patient by ordering an investigation under s. 75(1).
[6] The ICRC investigation included letters to the applicant with questions about the applicant’s record keeping and about how the applicant complied with the College’s Complementary/Alternative Medicine (CAM) policy given the absence of certain documentation in his records. There were also communications with the complainant and the patient, and a lengthy response from the applicant including a letter from the patient.
ICRC and HPARB Decisions
[7] The ICRC addressed the concerns raised in the letter of complaint, describing the complaint in its decision as follows:
Mr. Brown is concerned that Dr. Nahas is providing complementary medicine to Patient A without a medical indication to do so; for example, Dr. Nahas is recommending chelation therapy for heavy metal poisoning on the basis of non-scientifically validated urinary testing; Mr. Brown is further concerned that Dr. Nahas is profiting from his unethical practices.
[8] The ICRC considered the information before it as well as the College’s Complementary/Alternative Medicine (CAM) policy, Consent to Treatment policy and Medical Records policy.
[9] The ICRC noted that the patient had no concerns about the applicant, was happy with his care and felt better as a result, and that the patient had denounced Mr. Brown for initiating his complaint.
[10] As set out in the ICRC reasons for decision, the applicant admitted that his documentation was lacking. The ICRC noted that the patient history and physical examination that the applicant did when he first saw the patient were inadequate, that there was very little history documented on a patient with a very complex past, and that there was no documented physical examination although the applicant said that he did one. Previous investigations were not documented, nor was there documentation about a consent discussion or consent for chelation therapy (although the applicant said that patients usually sign one). There was a signed general consent form.
[11] The CAM policy required that physicians providing CAM take certain steps. The ICRC found that the record before the ICRC did not show that the applicant had taken those steps regarding chelation therapy.
[12] With respect to chelation therapy, the applicant noted in his response to the College that he appreciated that there were concerns about the effectiveness of that type of treatment and that he therefore considered it only after conventional treatment had been exhausted or yielded unacceptable side effects. However, the medical records did not document those steps.
[13] The applicant said that he was using very little chelation therapy at that point, which the ICRC found somewhat reassuring.
[14] The ICRC considered the complaint that the applicant was profiting from the treatment that he was providing to the patient, finding that the applicant did disclose that he makes money from the sale of products and supplements, that his prices seemed fair and were posted, and that he gave patients the option to buy supplements and vitamins elsewhere. The ICRC concluded that this complaint was a minor concern in comparison to other serious shortcomings in his care.
[15] The ICRC did not refer the matter to a discipline hearing. The ICRC concluded that the applicant should be cautioned with respect to improper consent, documentation and examination of a patient and generally failing to follow the College’s CAM policy. The ICRC also required the applicant to undergo a SCERP, including courses on medical record keeping, self-directed learning, clinical supervision and a reassessment. At the oral hearing in this court, counsel to the applicant noted that the SCERP was not the focus of his concern in this application.
[16] The applicant sought a review by the HPARB. Under s. 32 of the Code, before reviewing an ICRC decision, the HPARB receives and discloses to the parties the complete record that was before the ICRC. That was done before the HPARB hearing, as required.
[17] Under s. 33 of the Code, in a review, HPARB considers either or both of the adequacy of the investigation conducted by the ICRC or the reasonableness of the ICRC decision. Both were challenged in this case.
[18] Counsel to the applicant gave both written and oral submissions at the review by the HPARB. Before the HPARB, the applicant submitted that the ICRC should not have investigated the complaint because the complainant was not the patient and the patient was happy with the treatment that she received. The applicant further submitted that the ICRC’s investigation was inadequate because more steps should have been taken and there ought to have been a report from the s. 75 investigation. Further issues were raised in support of a submission that the ICRC decision was unreasonable.
[19] The HPARB confirmed the ICRC decision, finding that the investigation was adequate and the decision reasonable. The HPARB noted that an ICRC investigation does not need to be exhaustive and that the HPARB had not been directed to any information that the ICRC failed to obtain or information that, had it been obtained, might reasonably be expected to have affected the outcome. The HPARB was not persuaded that the ICRC decision was flawed because the complainant was not the patient, noting the mandate to protect the public interest whether a complaint originates from the patient or someone else.
[20] The HPARB reviewed the decision about record keeping, CAM requirements and charges, and found that the ICRC’s conclusions were supported by the record and were reasonable. The HPARB noted that support for the ICRC’s disposition came from the information in the record including the applicant’s response and the applicant’s own medical records about the patient.
[21] This applicant then commenced this application for judicial review.
Issues and Standard of Review
[22] The applicant challenges both of the conclusions of the HPARB, that the ICRC did an adequate investigation and that the ICRC’s decision was reasonable. The applicant narrowed the grounds being pursued in this application at the outset of the oral hearing in this court to the following:
(1) that the ICRC investigation was inadequate because the College did not disclose certain documents about the complainant and the patient until the HPARB stage and the applicant therefore could not respond to or rely on those documents at the ICRC stage; and,
(2) that the HPARB’s decision was unreasonable as a result of the above issue and because the complainant was not the patient and the patient had no complaint.
[23] The parties agree that the standard of review is reasonableness. The first ground set out above raises an issue of procedural fairness at the ICRC stage. For that issue, the question is whether the applicant was afforded the required level of procedural fairness by the ICRC, or not.
[24] The complainant has also sought some relief in his factum. He asked that this court order that the issues in his complaint be sent to the Discipline Committee of the College because in his view the record shows that the applicant’s conduct does amount to professional misconduct. The complainant made the same request in the HPARB review, unsuccessfully. He did not bring an application for judicial review of the decision not to refer the complaint to a discipline hearing. We do not agree to permit that requested relief within the applicant’s application for judicial review. In any event, the complainant has not shown that the decision was unreasonable.
Adequacy of the ICRC investigation
[25] The applicant submits that the ICRC investigation was inadequate because information contained in four documents was not given to the applicant until the HPARB stage. The applicant submits that three documents comprised expanded complaints, and the fourth was potentially helpful information.
[26] As set out in s. 25(6) of the Code, the Registrar of the College is obliged to give the member, within 14 days of receipt of the complaint, notice of the complaint, a copy of certain Code provisions and a copy of prior decisions involving the member. The applicant did receive notice of the complaint letter and other listed materials. That is not at issue.
[27] The applicant now submits that the s. 25(6) obligation extends to other derogatory comments about the applicant that were received in the investigation. Specifically, there are three documents containing information from the complainant, including additional negative comments about the applicant regarding other issues such as the applicant’s website material and laser therapy. The applicant submits that those documents expanded the complaint and the information in them should therefore have been given to him because of s. 25(6) of the Code. The fourth document recounted information from the patient, who was happy with her treatment, which the applicant submits would have been of assistance to him.
[28] Although we accept the submission of applicant’s counsel that he made submissions about the four documents before the HPARB, it does not appear that the statutory interpretation argument about s. 25(6) was raised before the HPARB. It also does not appear in the applicant’s factum before this court. This alone is a reason not to address it. Nonetheless, the applicant has not shown that those documents did expand the complaint being investigated by the ICRC. It is apparent from the ICRC decision that it focused on the letter of complaint and addressed those issues. The complaint being addressed is clearly stated in the ICRC decision. It does not include other matters, such as comments about the applicant’s website.
[29] The applicant also now submits the IRCR was “tainted” by the additional negative comments in the three documents and its impartiality was compromised. This amounts to an allegation of a reasonable apprehension of bias. If that was of concern, it ought to have been raised before the HPARB and it was not raised. When it was raised in oral argument before this court, applicant’s counsel indicated that bias is not alleged.
[30] With respect to disclosure more generally, the extent of the duty of procedural fairness depends on a variety of factors as set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
[31] With respect to the nature of the decision being made, the ICRC performs a screening role. It screens complaints and decides if any further action is necessary: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 7416 (Div. Ct.) at paras. 37-38. It is not adjudicating in a formal way. It decides whether a complaint should be referred to a discipline hearing (where it would be adjudicated with considerable procedural requirements culminating in a formal hearing) or some other response should be made.
[32] The ICRC has procedural fairness obligations commensurate with its role. The ICRC must give the member notice of the complaint and an opportunity to make written submissions: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, para. 47. Those steps were taken in this case.
[33] With respect to the statutory scheme, the Code contemplates that it is at the HPARB review stage that the applicant receives the complete record of what was before the ICRC. The applicant received that material, including the four documents, and had an opportunity to make submissions about them. At the HPARB, the main issue raised was whether the s. 75 investigation to obtain the medical records gave rise to reporting obligations. That was also the main focus in the applicant’s factum in this court. The applicant abandoned that ground for relief at the outset of the oral hearing in this court.
[34] On the question of whether there was adequate disclosure of the complaint at the ICRC stage, the applicant relies on Volochay, yet that case is not comparable. In Volochay, the member was not given notice of the complaint or an opportunity to respond to it. The complaints committee took steps without any submissions from the member. The applicant also relies on Ajao v. College of Nurses of Ontario, 2011 ONSC 6061 (Div. Ct.). However, that case began with a notice of termination of employment. The conduct giving rise to the ICRC decision was collected in an investigation and not shared with the member. The applicant also relies on Gopinath v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 3143 (Div. Ct.), which arose from a s. 75 investigation. In that case, the court noted at para. 12 that “it is adequate at the investigation stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” The inspector had interviewed numerous witnesses and although a summary was provided, it did not make the member aware of the substance of the allegations. The member was not given the names of the people or the details of the conduct discussed with them. These cases were all different in material ways.
[35] Moving back to the complaint in this case, the applicant was given the letter of complaint, which set out the conduct that was the focus of the ICRC investigation and decision. The applicant already had his medical records, which he provided to the ICRC under s. 75 of the Code. The applicant did have notice of the complaint, an opportunity to respond to it, and he did respond.
[36] With respect to the fourth document, regarding information from the patient, the ICRC expressly proceeded on the basis that the patient was happy with the care that she received and did not agree with the complaint. This was known to the applicant, who submitted a letter from the patient to the ICRC with his response to the complaint. Given the nature of the issues in the complaint (which were focused on CAM and the applicant’s deficient medical records), and the screening role of the ICRC, there was no obligation to give that additional document at the ICRC stage. Of course, the applicant had it for his review before the HPARB.
[37] The applicant also submitted that the patient has the right to certain disclosure but did not pursue this argument.
[38] This complaint related to matters within the expertise of these tribunals, focusing on the adequacy of the applicant’s own medical records and his compliance with the CAM policy in relation to chelation therapy for heavy metal toxicity. The decision confirmed by the HPARB was focused on those issues.
[39] We therefore find no breach of procedural fairness by the ICRC and, in turn, no basis to interfere with the HPARB finding that the ICRC investigation was adequate. We also do not find that procedural fairness is a basis to find that the HPARB decision was unreasonable.
Complainant not the patient
[40] The applicant submits that the ICRC should not have investigated a “third party” complaint (a complaint from someone other than the patient) and that neither the ICRC nor the HPARB took into account the patient’s interests.
[41] The legislation does not restrict complaints to those initiated by patients. The focus of the complaints process is on the conduct of the physician, which is consistent with the role of the College to regulate the practice of medicine in the service of and protection of the public interest. In Volochay, the Court of Appeal noted this statutory mandate when finding that that College was entitled to continue to investigate a complaint even though the complainant had withdrawn it: at para. 46. The ICRC was well within its mandate to investigate the complaint and took into account the patient’s point of view, noting that she was happy with the treatment that she received.
[42] The applicant also raised issues about the patient’s rights, submitting that the ICRC made no effort to justify the intrusion into the patient’s privacy rights. Leaving aside the issue of whether the applicant can raise those rights, the ICRC specifically noted that it took steps to minimize the amount of medical information in its reasons and the HPARB made a disclosure order protecting personal health information dated September 28, 2018. The HPARB also took steps in this court to protect personal health information. The patient was aware of the ICRC investigation and did not challenge the s. 75 investigation through which the applicant’s records of her care were obtained.
[43] We disagree with the applicant’s characterization that the ICRC “overrided” the patient’s rights rendering its decision unreasonable. The ICRC proceeded to fulfill its statutory obligation to investigate the complaint and both the ICRC and the HPARB took steps to address the impact on the patient’s personal health information.
[44] We conclude that this ground also does not show a reviewable error.
Decision
[45] The application is dismissed, with costs to the College in the agreed upon amount of $5,000, all inclusive.
Justice Hackland
Justice Matheson
Justice O’Brien
Released: December 21, 2022
CITATION: Nahas v. HPARB, 2022 ONSC 7194
DIVISIONAL COURT FILE NO.: 546/19
DATE: 20221221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND, MATHESON & O’BRIEN JJ.
BETWEEN:
DR. RICHARD NAHAS
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS and MICHAEL BROWN
Respondents
REASONS FOR decision
Released: December 19, 2022