Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096

CITATION: Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096

COURT FILE NO.: 445/22

DATE: 20230406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Corbett, Lederer, Charney JJ

BETWEEN:

DR. AKBAR KHAN

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and THE ONTARIO PHYSICIANS AND SURGEONS DISCIPLINE TRIBUNAL

Respondents

Dr. Akbar Khan, on his own behalf

Amy Block, for the Respondent, College of Physicians and Surgeons of Ontario

No one appearing for the Ontario Physicians and Surgeons Discipline Tribunal

HEARD by video: February 14, 2023

Lederer J.

Introduction

[1] This is an appeal from the Ontario Physicians and Surgeons Discipline Tribunal. Following a hearing held by videoconference, over 18 days, the Tribunal found the appellant, Dr. Akbar Khan had engaged in conduct:

• that could reasonably be regarded as disgraceful, dishonorable and unprofessional (billed OHIP for palliative care, for six patients, that he did not provide and failed to cooperate with the investigation undertaken by the College of Physicians and Surgeons);

• that failed to maintain the standard of practice of the profession (in his care and treatment of the 12 patients who were the subject of the hearing); and

• that displayed a lack of knowledge, skill and judgment of a nature and to an extent that demonstrated that he was unfit to continue to practice, that he was incompetent (in his care and treatment of those 12 patients).[^1]

Background

[2] Dr. Akbar Khan is a conventionally trained family physician. He graduated from the University of Toronto in 1992 and completed his family medicine training in 1994. Initially, he worked at the Addiction Research Foundation as a research associate. He practiced in addictions medicine. Dr. Akbar Khan began working at Scarborough General Hospital where he joined the palliative care team. He continued working in the area of palliative care until 2007. Throughout the years he practiced palliative care, Dr. Akbar Khan also worked as a surgical assistant and, from 1995 to 1997, as the team physician at the University of Toronto, Scarborough Campus where he provided students with medical care.

[3] In the spring of 2006, Dr. Akbar Khan opened Medicor Cancer Centres. Over time, Dr. Akbar Khan expanded his practice to include an integrative approach which combined complementary and alternative medicine and therapies (CAM) with his patients’ conventional medical care.

[4] In 2007, Dr. Akbar Khan became interested in a medication called dichloroacetate (DCA). This is a drug typically used to treat metabolic disorders in children. Dr. Akbar Khan provided this medication to his adult patients as a treatment for cancer and to a pediatric patient (identified as Patient “A”) for the treatment of a brain cancer (“medulloblastoma”). At the hearing Dr. Akbar Khan estimated that since he began offering it, he had treated 3000 patients with DCA.

[5] As he extended his practice, Dr. Akbar Khan began offering a low dose regime of naltrexone (LDN). Commonly this medication is used in addiction care. It is also used to treat patients with autoimmune diseases and for fibromyalgia and chronic fatigue syndrome. Dr. Akbar Khan used LDN to treat cancer.

[6] During June 2013, Dr. Akbar Khan met with Kenneth Matsumura, identified by Dr. Akbar Khan as a medical doctor and scientist in the United States. Dr. Matsumura told Dr. Akbar Khan about a cancer treatment called “SAFE chemotherapy” (for “side effect free” chemotherapy), which he had developed in 1992. Following this meeting, in July 2013, Dr. Akbar Khan began offering SAFE chemotherapy to his patients. The patients whose treatment was considered as part of the hearing, received anywhere between 5 to 24 cycles of this treatment.[^2]

[7] The principal, though not the only concern giving rise to the hearing and determinations made with respect to the practice of Dr. Akbar Khan, was his use of these medications and treatments, and the nature of his communication with his patients and their families concerning those treatments.

Complementary Alternative Medicine

[8] The use of treatments that are not part of generally accepted or “conventional” therapies or the use of “conventional medications” in an unconventional or “off-label” manner is governed by Policy Statement #3-11 issued by the College of Physicians and Surgeons of Ontario entitled “Complementary/Alternative Medicine.” The CAM policy recognizes the interest of patients in such treatments:

In increasing numbers, patients are looking to complementary medicine for answers to complex medical problems, strategies for improved wellness, or relief from acute medical symptoms. Patients may seek advice or treatment from Ontario physicians, or from other health-care providers.

[9] The policy recognizes the right of patients to investigate and consider such alternative therapies:

Patients have the right to make healthcare 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.

[10] The policy explains what is expected of physicians in respect of those therapies:

The College expects that all Ontario physicians, whether they practice conventional medicine, complementary/alternative medicine or some combination thereof, will practice the profession in a manner that is informed by evidence and science and in keeping with professional, ethical and legal obligations.

[11] The policy outlines the principles and obligations of the profession with regard to this aspect of medical practice:

This policy articulates how the principles and obligations for professional, competent and ethical medical practice applied to complementary/alternative medicine. Physicians are, however, expected to comply with all their legal, professional and ethical obligations and are advised to consult additional College policies.[^3]

[12] The policy distinguishes between “Conventional Medicine” and “Complementary/ Alternative Medicine”, as follows:

Conventional Medicine: Refers to the type of treatment, diagnostic analysis and conceptualization of disease or ailment that is the primary focus of the curricula of university faculties of medicine. It is sometimes referred to as traditional medicine or science-based medicine and is the type of medicine that is generally provided in hospitals and specialty or primary care practice.

Complementary/Alternative Medicine (CAM): Refers to a group of diverse medical practices and products that are not generally considered part of conventional medicine. They are also sometimes referred to by other terms, such as non-traditional and non-conventional. The boundaries between CAM and conventional medicine are not absolute and some specific CAM practices may become incorporated into conventional medicine.[^4]

[13] The use of dichloroacetate (DCA), low dose naltrexone (LDN) and SAFE chemotherapy as treatments for cancer are not accepted as conventional medicine. They are examples of Complementary/Alternative Medicine. Their use in Ontario requires adherence to Policy Statement #3-11 (“Complementary/Alternative Medicine”).

The expertise of the witnesses called on behalf of the College of Physicians and Surgeons

[14] The College of Physicians and Surgeons called three doctors: Dr. Jawaid Younus, Dr. Donna Johnston and Dr. Richard Tozer. As part of this appeal, the qualifications of each of them to provide opinions as to the use of CAM therapies was questioned.[^5] At the hearing before the Discipline Tribunal Dr. Donna Johnston was accepted as an expert in the diagnosis and treatment of pediatric cancer without objection from Dr. Akbar Khan. In assessing her experience and expertise the Tribunal noted that “although her practice is a conventional medicine practice Dr. Johnston also has extensive experience with CAM, as her patients frequently request CAM or naturopathic therapies.”[^6]

[15] Before the Tribunal, the ability of Dr. Jawaid Younus to give opinion evidence was questioned on two bases: (1) he had failed to include a signed “Acknowledgement of Duty as an Expert Form” in his report and (2) his expertise in conventional treatment and diagnosis of cancer did not qualify him to give opinion evidence about the types of alternative modalities that were used by Dr. Akbar Khan.[^7] With respect to the “Acknowledgement”, Dr. Younus understood that, “as an assessor, he was to provide an independent opinion about this case, unbiased, and only focused on the evidence or the case that was provided to [him].[^8] The Tribunal concluded that while failure to include the “Acknowledgement” with his report was technically a breach of the applicable rule, it did not find the breach to be sufficiently egregious that it should disqualify Dr. Younus from testifying. Based on his testimony the Tribunal was satisfied that he understood his responsibilities and duty when he reviewed the care provided by Dr. Akbar Khan for the purpose of his report.[^9] With respect to the scope of the testimony given by Dr. Younus, the Tribunal noted there was no dispute as to his expertise in conventional diagnosis and treatment of cancer. The Tribunal observed that his “foundational knowledge of cancer, science and evaluation of scientific literature provided a basis to evaluate various therapies, pertinent to the care of patients with cancer, including CAM therapies.[^10] He was able to evaluate the efficacy of these therapies regardless of whether he provided them in his own practice.[^11]

[16] Similar to the objection to the testimony of Dr. Younus, concern was expressed that Dr. Richard Tozer could only be qualified as an expert in the diagnosis of cancer and the treatment of cancer with conventional modalities. The Tribunal did not, limit his evidence in this way. Dr. Tozer had “made it his business to understand the CAM treatments that many of his patients [were] using.” His clinical work requires familiarity with CAM because approximately 70% of his cancer patients will be receiving CAM therapy. He was accepted as an expert in the diagnosis and treatment of cancer.[^12]

Complementary/Alternative Medicine must be based on science

[17] The fact that CAM treatments may fall outside the realm of conventional medicine does not relieve doctors who utilize and prescribe these therapies from looking for, relying on, and insuring, that they are founded on valid, reliable and tested science. Policy Statement #3-11 Complementary/Alternative Medicine makes this clear in respect of assessment, diagnosis and whatever therapeutic options are selected:

All patient assessments and diagnosis must be consistent with the standards of conventional medicine and be informed by evidence and science.

If physicians reach a CAM diagnosis, that diagnosis must be based on the clinical assessment conducted and other relevant information, be supported by sound clinical judgment and informed by evidence and science.

Any CAM therapeutic option that is recommended by physicians must be informed by evidence and science…

Physicians must never recommend therapeutic options that have been proven to be ineffective through scientific study.[^13]

[18] What is the science on which the therapies prescribed and applied by Dr. Akbar Khan are based? What is the quality of that science?

(i) Dichloroacetate

[19] The Tribunal heard significant evidence from several doctors concerning the work done to establish the efficacy of Dichloroacetate (DCA) for use as a treatment of cancer. The theory behind its use for this purpose was explained. DCA impacts the cellular metabolism of glucose. DCA appears to shift cellular metabolism to the more efficient of two available pathways by which the breakdown of glucose molecules occurs. Typically, cancer cells use the less efficient pathway. In theory, if a drug could make cancer cells switch to the more efficient pathway, it is posited that “one could possibly decrease the cancer’s malignant aggressiveness and increase therapeutic responsiveness”.[^14]

[20] Early pre-clinical research, consisting mostly of “mouse tumour therapy trials” showed “promising potential benefits for treating cancer with DCA”. However, even at this preliminary stage there was uncertainty about the impact of DCA used on its own (“monotherapy”), whether that impact was as good or better than the standard care and whether combining it with other treatments resulted in a benefit that was greater than the use of either drug alone. This was said to be “somewhat speculative” and required further research.[^15] The evidence provided to the Tribunal, as referenced by it, included a cautionary note: anti-cancer activity in pre-clinical studies or in animals do not successfully demonstrate drug efficacy in human trials.[^16]

[21] The Tribunal was advised, and in its decision explained that some clinical research has been undertaken. Several different studies were referred to. The results were inconclusive. In one “limited pilot clinical trial” DCA was administered to five adult patients. Some tumour regression was noted but the treatment was undertaken after standard therapies had been administered. The benefit observed could be explained by those other treatments. The authors noted that given the small number of patients involved “no firm conclusion regarding DCA therapy for GBM [glioblastoma] can be made.” They proposed “this as possibly being an argument to undertake further studies on the use of DCA for treating glioblastoma.” For her part Dr. Johnston concluded that the study did not provide conclusions on tumour response.[^17]

[22] In a further study (a phase 1 study[^18]) DCA was given to 23 adults suffering from different cancers. All 23 were considered to be heavily pre-treated with other therapies. None of the 23 demonstrated a measurable response to DCA but eight of the 23 were noted to have a stable disease. The authors concluded “it is unlikely DCA will show efficacy as a single agent…”. Dr. Johnston pointed out that for the group that had “a brief stabilization of disease (an average of six weeks), it would be difficult to conclude whether the stabilization that was documented could be attributed to DCA or the prior therapy.[^19]

[23] In another phase 1 study DCA was given to 15 patients with brain cancer all of whom had been pre-treated with the radiation and/or chemotherapy. While there was disease stabilization in the eight patients that could be evaluated and DCA was safe and well-tolerated for use in adults, the trial “could not provide definitive information on efficacy”. It could be that any stabilization affect was attributable to the prior treatment.[^20]

[24] In a small clinical trial (a phase 2 trial[^21]) DCA was given to seven patients with refractory lung and breast cancer. All the patients had been pretreated with other therapies. The author stated, “our study demonstrated no clinical improvement in seven subjects with advanced stage cancers treated with DCA”.[^22]

[25] Dr. Robert Kerbel was called as a witness on behalf of Dr. Akhtar Khan. He is a professor at the University of Toronto. Dr. Kerbel has extensive experience as a cancer researcher and has consulted widely in the field, including internationally. Numerous clinical investigators from around the world have asked him to work in an advisory capacity on the scientific aspects in trial design clinical cancer research. He has published extensively. He was accepted by the Tribunal as an expert in cancer biology and research. Dr. Kerbel confirmed that, at this point, the clinical evidence regarding DCA efficacy is quite limited. He added that “[b]y definition, if you have a small number of trials, with a small number of patients, that would be the case.”[^23]

[26] The Tribunal found that while the published science did not support the use of the DCA for the treatment of cancer patients, there is a body of research and experience that may support consideration of its use for some cancers. Looking only at the evidence and science informing the use of DCA in cancer cases, the Tribunal was unprepared to find that Dr. Khan failed to maintain the standard of practice by using DCA on his adult patients. It went on to make findings on that use of DCA in the context of his treatment of individual adult patients.[^24]

[27] Importantly, Dr. Johnston, in reviewing the first of the studies noted above stated that it “did not provide evidence and science for the use of DCA as a monotherapy for the treatment of a pediatric patient with medulloblastoma.[^25] For his part Dr. Kerbel confirmed that he could not find any clinical evidence regarding the use of DCA in a pediatric patient with medulloblastoma.[^26] The Tribunal in its finding determined that “evidence and science are not sufficient to support the use of DCA to treat pediatric medulloblastoma”. It is in this context that the Tribunal found that Dr. Akbar Khan “failed to maintain the standard practice of the profession when he used DCA to treat [a pediatric patient, referred to as Patient A]”.[^27] I will return to the treatment of this patient later in these reasons.

(ii) Low dose regime naltrexone

[28] Naltrexone is an opioid antagonist. It is used to reverse the effects of an opioid overdose and can be used in the treatment of alcohol addiction. Dr. Akbar Khan used low dose naltrexone (LDN) to treat cancer, autoimmune diseases, symptoms of fibromyalgia and chronic fatigue syndrome.[^28] At the Tribunal the use of LDN in the treatment of cancer was largely supported by the reliance on articles said to confirm its use for that purpose. Dr. Younus reviewed the data and literature available and reported, to the contrary, that:

... there is no conclusive evidence in the published literature for low dose naltrexone to be an effective anti-cancer therapy. I could not find a prospectively conducted clinical trial with published results on low dose naltrexone in patients with cancer… while no one can claim that they have read all the papers in the world… I also did not find any paper about naltrexone referring to a human case series to treat the blood cancers or acute leukemias.[^29]

[29] Various articles were put to Dr. Younus. He was consistently doubtful that there had been any meaningful demonstration of a substantive connection between treatment with LDN and a benefit for those with cancer. Dr. Khan sent him studies for review. Dr Younus found none of them showed support for LDN as a treatment for cancer, including leukemia. He did agree that “one could say “[a]t the basic level” the articles suggest that there is some connection to treatment with low-dose naltrexone and various types of cancer”.[^30] With respect to a specific article that was put to him but, apparently, not to the Tribunal, which, it was suggested, indicated that LDN had been found to be non-toxic and efficacious in the treatment of patients with advanced pancreatic cancer. Dr. Younus responded:

...it provides a very minute level of biological evidence that this [LDN] should be tested further...Whether it is going to be efficacious in the treatment for whatever dose and for whatever indication, is not clear from this article.[^31]

[30] Another article references a “single 2009 case report” which looked at LDN in humans with pancreatic cancer. Dr. Younus expressed the view that the stated benefit could not be attributed to LDN and that “it was almost impossible to dissect its potential impact because LDN was just one of a number of therapies the study patients were receiving.”[^32] The same study spoke about a presentation made at a conference. Dr. Younus stated that without publication to provide relevant information on how the study was conducted, the validity of the data could not be ascertained or verified.[^33]

[31] Dr Akbar Khan brought up cell-based research conducted at Penn State University. The idea was that LDN fools the body into thinking that it does not have enough endorphins, this boosts endorphin production and that could stop cancer growth or kill cancer cells. Dr. Younus commented that there is risk in relying on petri dish research as applicable to humans. The cancer cells are grown in the laboratory which does not mimic exactly the human system which is significantly more complicated.[^34]

[32] Dr. Mark Rosenberg was a second physician called to give evidence on behalf of Dr. Akbar Khan. He was trained and practices in the United States and was not familiar with the College of Physicians and Surgeons or its CAM policy. Currently 85% of his work consists of treating patients with cancer, many at the advanced stage. Dr Rosenberg estimated that each year he treats 400 patients with cancer. He described himself as an “integrative cancer therapy practitioner” and without objection was qualified as such.[^35]

[33] Dr. Rosenberg testified that he uses LDN only as an adjunct that, it is hoped, will augment more powerful substances, but “certainly not” as a primary treatment. He does not regard LDN as a “power player” and stated that it could not alter the progress of a person with cancer by itself.[^36]

[34] Dr. Younus concluded that in treating an adult patient (referred to as Patient B) with LDN, on the basis of a diagnosis of leukemia,[^37] Dr. Akbar Khan had treated her with a therapy that had no quantitative benefit and was not informed by evidence or science.[^38] I will return to the treatment of Patient B later in these reasons. It is of note that the Tribunal found the testimony of Dr. Younus to be thoughtful, concise and clear:

He appeared to pause and consider his answers before speaking and seemed comfortable telling us when he did not know the answer to a question being asked. While critical of Dr. Khan’s care, his assessments were well articulated, balanced and fair.[^39]

[35] I pause to observe that there was plenty of evidence upon which the Tribunal could base an understanding, finding and determination that the use, by Dr. Akbar Khan, of LDN as a primary treatment for cancer did not meet the requirement, found in the CAM policy statement, that a recommended therapeutic option be informed by evidence and science.[^40]

(iii) SAFE chemotherapy

[36] In 2013 Dr. Akbar Khan began offering a two-medication regimen for the treatment of cancer. The two drugs, carboplatin and mesna are approved by Health Canada. Their combination, noted earlier by the name “SAFE chemotherapy” is not. A problem with conventional chemotherapy is that while it kills cancer cells, it does the same with healthy cells The theory behind “SAFE chemotherapy” is that carboplatin, used by conventional oncologists to treat various forms of cancer, will kill cancer cells and mesna, conventionally used to protect the bladder from inflammation and the serious bleeding that can occur as a result of metabolic breakdown, will protect healthy cells by preventing or reducing side effects from a cytotoxic chemotherapy drug like carboplatin.[^41]

[37] The question to be asked is what is the evidence and science that Dr. Akbar Khan relied on when he began, and continued, to treat his patients with “SAFE chemotherapy”? While the developer of “SAFE chemotherapy” Dr. Kenneth Matsumura was identified by Dr Akbar Khan as a physician, the Tribunal noted that he did not appear to be an oncologist. During the hearing, no information was provided about his background, training clinical experience or medical practice.[^42] It seems that he was the only source of information relied on by Dr. Akbar Khan as to the efficacy of the combination of drugs used in SAFE chemotherapy. What information did Dr. Matsumura provide before Dr. Akbar Khan began to treat his patients with this combination of drugs? Dr. Akbar Khan met Dr. Matsumura during June 2013. He began using SAFE chemotherapy one month later, during July 2013. Dr, Akbar Khan advised the Tribunal that, in the interim, he had been provided with the following information:

1. a SEF [SAFE] chemotherapy booklet

2. verbal information from Dr. Matsumura about data/results for four patients treated with SAFE chemotherapy

3. data results which consisted of information about the types and stages of patients with different cancers, bloodwork results for white blood cells, neutrophiles and platelet counts, and

4. information from Dr. Matsumura about his unpublished phase 2 study on the efficacy of SAFE chemotherapy, which was based on the blood work results.[^43]

[38] Was there substance to this information? It seems there was not. The Tribunal’s Decision reveals that the website of Dr. Matsumura and the SAFE chemotherapy booklet make significant claims. By way of example:

• SAFE chemotherapy is a “cancer cure and a “powerful drug that cure”,

• SAFE chemotherapy will change cancer into a “treatable outpatient disease,”

• With SAFE chemotherapy 90% of oncologists will no longer be needed,

• There are data “conclusively showing…that SAFE chemotherapy “substantially reduces the dosage-limiting toxicity to the bone marrow by carboplatin, one of the most powerful anti-cancer drugs ever developed”,

• Contrary to conventional chemotherapy, with SAFE chemotherapy “we find tumours quickly shrinking over weeks.[^44]

[39] One might ask what all these fabulous claims are based on:

• “[I]n our first Phase ii clinical trial with DTRA-Mesna, all four consecutive patients with hopeless cancers of the lung, breast and blood got well and went into long term remissions, the longest survivors now living over seven years without cancer…. Such a thing (all four going into long-term complete remission) can happen by chance “only once in a trillion cases, according to statistical analysis.”^45

[40] The claimed success of this approach to the treatment of cancer is underscored by the assertion, found on the website of Dr. Matsumura, that the United States FDA “rushed” through the approval of his first clinical trial and his expressed concern that he did not want to have to respond to “days of front page news coverage bringing [hordes] of patients and their relatives demanding treatment…” which “without proper resources” to implement the therapy on a larger scale would be a “challenge”.[^46]

[41] There is a problem with all of this. Although Dr. Matsumura says he has been working on SAFE chemotherapy since 1992, none of his findings have ever been published, nor is there any information available on any patients he has treated since the first four in 1992.[^47]

[42] Dr. Richard Tozer undertook a search. He found nothing to suggest that mesna does anything other than act as a bladder protectant for cyclophosphamide and ifosfamide. The toxicity of carboplatin’s side effects is not mitigated by mesna. After conducting an extensive search, he found nothing considering mesna and myelosuppression. He was unable to find any literature or data comparing SAFE chemotherapy with conventional chemotherapy.[^48]

[43] As for Dr. Akbar Khan, he acknowledged that prior to his commencing the treatment of patients with SAFE chemotherapy he made no independent assessment of the validity of what he had been told by Dr. Matsumura. Having been asked, he responded: “...not in July 2013.” When counsel for the College put to him that he had made no independent investigation as to the accuracy or reliability of Dr. Matsumura’s claims, he answered: “correct, I trust him”.[^49] Dr. Akbar Khan confirmed that he did no further research or look for literature or supportive science on SAFE chemotherapy. [^50]

[44] With respect to the use of SAFE chemotherapy by Dr. Akbar Khan, the Tribunal found that:

• there was insufficient evidence in science to support Dr. Akbar Khan’s claims about SAFE chemotherapy as required by the CAM policy,

• there was insufficient evidence that SAFE chemotherapy possesses a favorable risk/benefit ratio as required by the CAM policy, and

• there was insufficient evidence in science to suggest that SAFE chemotherapy gives patients a reasonable expectation of remedying or alleviating their health condition or symptoms as required by the CAM policy.[^51]

[45] The Tribunal found it “... shocking that Dr. Khan began treating patients with SAFE chemotherapy based on what appeared to be nothing more than Dr. Matsumura’s word”.[^52]

The appeal

[46] Effective September 1, 2021, what had been the College of Physicians and Surgeons’ Discipline Committee became the Ontario Physicians and Surgeons Discipline Tribunal. The hearing was held over the course of 18 days during 2020. The decision was initially released on February 7, 2022 and “corrected” by further release on February 24, 2023.

[47] This is a statutory appeal. It is authorized by s. 70 of the Health Professions Procedural Code which is Schedule 2 to the Regulated Health Professions Act, 1991 and is, by s. 4 of that Act, deemed to be part of each health professions Act:[^53]

(i) Jurisdiction

70 (1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72 (1), may appeal from the decision of the Board or panel to the Divisional Court.

Basis of appeal

(2) An appeal under subsection (1) may be made on questions of law or fact or both.

Court’s powers

(3) In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.

(ii) Substance of the appeal

[48] This appeal is a broad attack on virtually every aspect of the hearing. Dr. Akbar Khan submits that the Tribunal:

• demonstrated bias by repeatedly mischaracterizing the law, by fabricating and falsely representing evidence during both the hearing and the decision-making process, and by mischaracterizing the “submissions” of witnesses. He submits that the “primary goal of both the College of Physicians and Surgeons and the Tribunal was to find the Appellant “guilty at all costs” It is said that a change in the Tribunal panel demonstrated bias,

• included in its decision multiple errors of fact and errors of law, for example, it is said the Tribunal treated the CAM policy as legally binding and erred in qualifying experts who were without the claimed expertise,

• commenced proceedings against the appellant under para. 1(1)(2) of O. Reg. 856/93 alleging he failed to maintain the standard of practice of the profession, when they knew the allegation could not be true because the College of Physicians and Surgeons failed to pass such standards as required by law, and

• acted in a fashion which breached procedural fairness and was blind to evidence that favoured the appellant.

[49] Dr. Akbar Khan says that the three professional witnesses called by the College:

• made errors, false statements and lacked credibility based on contradictory testimony,

• demonstrated bias by holding the appellant to non-existent standards, by ignoring evidence that supported him, by multiple errors of fact, by artificially discrediting his publications,

• failed in the duty imposed on them as expert witnesses by freely rendering opinion without the requisite expertise.

(iii) Standard of review

[50] As an appeal, the standard of review, as enunciated in Housen v. Nikolaisen[^54] and confirmed in Canada (Minister of Citizenship and Immigration v. Vavilov,[^55] is correctness in relation to an error of law, palpable and overriding error for findings of fact and for issues of mixed fact and law, the appropriate place on a spectrum running between the two standards, depending on the circumstances. Deference is owed to the credibility and reliability of determinations made by the trier of fact and the weight to be given to the evidence.[^56]

Analysis

(i) Factual Findings

[51] I begin by observing that much of the complaint made by Dr. Akbar Khan reflects his disagreement with the factual determinations made by the Tribunal. That these findings are different than he believes appropriate is not an indication of bias. An assertion that there is evidence that he feels should have been understood differently, or given different weight, does not amount to palpable and overriding error.

[52] The same can be said for an acceptance of the expertise of a given witness. In each case the Tribunal provided a careful assessment of each witness, their backgrounds and experience before accepting them as having the expertise necessary to provide opinion evidence in the area described.

[53] Contrary to the submission made by Dr. Akbar Khan, there is much more that supports the findings made by the Tribunal than utilizing non-traditional therapies. The Ontario Physicians and Surgeons Discipline Tribunal did not ignore s. 5.1 of the Medicine Act [^57]:

A member shall not be found guilty of professional misconduct or of incompetence under section 51 or 52 of the Health Professions Procedural Code solely on the basis that the member 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.

(ii) Errors of law

[54] An error of law is the failure to properly apply a principle of law, the application of the wrong principle or the reliance on a supposed principle that, in fact, does not exist. The principal objection made by Dr. Akbar Khan is that the Tribunal found he had breached the standard of practice of the profession when none had been enunciated and improperly relied on the CAM policy as establishing a legal standard which, he submitted, it does not do.

[55] The Health Professions Procedural Code at s. 95(1)(j) states:

95 (1) Subject to the approval of the Lieutenant Governor in Council and with prior review of the Minister, the Council may make regulations,

(j) defining professional misconduct for the purposes of clause 51 (1) (c)

[56] Section 51(1)(c) of the Code provides:

A panel shall find that a member has committed an act of professional misconduct if,

(c) the member has committed an act of professional misconduct as defined in the regulations.

[57] The authority to make a regulation defining professional misconduct is permissive. As it is, there is such a regulation albeit made under the Medicine Act. O. Reg. 856/93 is titled “Professional Misconduct”. Section 1(1) begins: “The following are acts of professional misconduct for the purposes of clause 51(1)(c) of the Health Professions Procedural Code...”. What follows is a list of 36 “acts” each of which would constitute professional misconduct, several of which could have relevance to this case.[^58]

[58] The failure to take into account such a regulation would not mean there could not otherwise be a finding that a member of the College had committed an act or acts of professional misconduct. Put differently section 51(1) is not a complete code as to the constituents of professional misconduct. The opening words of the section 51(1) (“A panel shall find…”) indicates that a breach of the provisions of s. 51(1) compel the Tribunal to find that an act of professional misconduct has been committed; this does not foreclose the possibility that there are other circumstances where such a finding “may” be made.

[59] Even if this is wrong, in the context of this case, it does not matter. Among the findings made by the Tribunal is that Dr. Akbar Khan was not competent. Section 52(1) of the Code applies:

A panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted.

[60] As it is the CAM policy assists in understanding the concerns raised by the actions of Dr. Akbar Khan. A policy may not prescribe the law, but it can and, in this case does, provide guidance as to the standard against which the actions of physicians will be assessed. Its application is clearly expressed:

This policy applies to all physicians who are involved with CAM

The General Expectations section contains content that is applicable to all physicians.

The Specific Expectations section contains content that is applicable to three physician roles: physicians who practise CAM, either as the primary focus of their practice, or in addition to conventional medicine; physicians who practice conventional medicine only, but whose patients pursue CAM; and physicians who regardless of the nature of their practice, who wish to form professional affiliations with CAM clinics, therapies, or devices.[^59]

[61] The Tribunal did not err in law in its reliance on the CAM policy.

(iii) Procedural fairness

[62] The requisites of procedural fairness are apparent. There can be no suggestion that there was not a full hearing with: notice, disclosure, the ability to call evidence, cross-examination and the ability to make full submissions. The Tribunal did not, as Dr. Akbar Khan suggests, change its rules when it admitted the reports of Dr. Younus and Dr. Tozer in the absence of those reports being accompanied by signed Acknowledgement of Duty as Expert forms.[^60] Rather the Tribunal considered the experience and circumstances of these witnesses to assure itself that they acted within the obligations acceptance of that form acknowledges.

[63] The opening page of the Decision identifies the 5 members of the panel (three physicians and two others). It notes that two of the doctors “were unable to participate in the decision”. No further explanation is given. However, the Decision does go on to explain that the “remaining members give the decision pursuant to s. 4.4 of the Statutory Powers Procedure Act”:

(1) If a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision.[^61]

[64] The Factum filed by Dr. Akbar Khan submits that in the absence of reasons explaining the departure there is a denial of procedural fairness.[^62] No further submissions are made. This issue was not raised upon the release of the Decision or at any time prior the penalty hearing which was conducted, by the three remaining members, on May 6, 2022, two months after the release of the Decision. The substance of any complaint would, in all likelihood concern an allegation of bias. No such assertion was made. No bias is apparent from a review of the Decision, the actions of the three remaining members or any statement attributed to any of them. In any event, such a concern would have to be raised at the earliest opportunity but was not. While some explanation would have added to transparency, there in no suggestion that the process was, in any way changed as a result of these withdrawals. The situation is permitted by the Statutory Powers Procedure Act. No decision, as such, was being made. There can be no unfairness in following the process expressly prescribed by statute.

(iv) Does the evidence support the findings and the decision

[65] If there is a substantive issue is this case, it reflects on the care and treatment provided by Dr. Akbar Khan to his patients and whether it breached or sustained the expected standard of practice.

(a) The CAM policy

[66] Physicians are expected to act in the best interests of their patients. One would expect this principle to be readily expected, accepted and understood. It is at the core of the CAM policy:

When acting in a professional capacity, physicians must always be motivated by a regard for what is best for the patient.

[67] Ultimately, it is for the patient to decide on her or his treatment protocol and that autonomy is to be respected by the physician:

Patients are entitled to make treatment decisions and to set health care goals that accord with their own wishes, values and beliefs. This includes decisions to pursue or to refuse treatment, whether the treatment is conventional or CAM.

The College expects physicians to respect patients’ treatment goals and medical decisions even those with which physicians may disagree...[^63]

[68] Doctors are to refrain from exploiting patients and avoid conflicts of interest; that is to say using his or her professional capacity to dominate and influence patients and to further the physician’s own interests over that of the patient.^64

[69] The CAM policy expresses the expectation that physicians “practicing CAM will do so competently, in keeping with their legal, professional and ethical obligations.” They are required to act “within the limits of their knowledge, skill and judgment and never provide care that is beyond the scope of their clinical competence.” Physicians providing CAM must conduct a clinical assessment of each patient and reach a “conventional diagnosis.” Any assessment, CAM diagnosis and therapy must be supported by sound clinical judgment and, as already noted in these reasons, informed by evidence and science. Physicians must “evaluate and analyze all available therapeutic options” and “always have valid informed patient consent to authorize therapeutic intervention.” In order for patient consent to be informed “the physician must always provide patients with accurate and objective information about the available therapeutic options. Physicians must never inflate or exaggerate the potential therapeutic outcome that can be achieved, misrepresent or malign the proven benefits of conventional or CAM treatment or make claims regarding therapeutic efficacy that are not substantiated by the evidence.” When asked for information about CAM, “physicians must respond in a professional manner within the limits of their knowledge, skill and judgment.”[^65]

[70] As I will explain, the 269 page decision of Ontario Physicians and Surgeons Discipline Tribunal makes it plain that Dr. Akbar Khan’s treatment of his patients breached any responsible understanding of his professional obligations to them and any reasonable interpretation of the expected standard of practice to the point that he was demonstrated to be incompetent.

(b) Patient A

[71] Patient A was six years old in May 2017. He was diagnosed with metastatic group 4 medulloblastoma (a malignant brain tumour). It was a “high risk” medulloblastoma due to the presence of disease along the spinal cord.[^66] According to his treating physicians at the Hospital for Sick Children, Patient A had approximately a 60-70% chance of survival with conventional therapy: radiation and chemotherapy.[^67] Patient A’s parents had grave concerns about the proposed course of treatment, and refused all forms of treatment offered by the hospital. They sought CAM for their son.[^68]

[72] Dr. Akbar Khan treated Patient A with dichloroacetate (DCA). He represented to the parents that “[they] used DCA with various brain tumours with good results.”[^69] Dr. Akbar Khan promised to “come up with a suitable combination of therapy” and that “all of these medicines are gentle and scientifically valid as brain tumour therapies”.^70 In response to inquiries from the Children’s Aid Society, Dr. Akbar Khan advised that “[DCA] was discovered to be an effective cancer therapy by the University of Alberta in 2007” and that “... there is a large body of medical literature that supports its use as a treatment for cancer... including brain tumors.”[^71] Before commencing treatment, Dr. Akbar Khan charted “poor prognosis with therapy or without.”[^72] The prognosis for Patient A, with conventional therapy, was not, in fact, poor. [^73]

[73] After treatment commenced, although Patient A appeared to be improving clinically, an MRI in September 2017 showed “a significant mass,” indicating progression of the disease at the spine.[^74] Dr. Akbar Khan emailed Patient A’s parents and said that “the MRI has to be wrong” and suggested it was showing “pseudoprogression”.[^75] If the tumour had grown as indicated in the MRI, Patient A should be paralyzed.[^76] In a subsequent email, Dr. Akbar Khan told the parents of Patient A that false growth was common with pediatric brain tumors, and claimed “we have seen deadly brain tumours also appear to be cured with simple drugs like DCA”.[^77] After receiving a video from the parents of Patient A showing Patient A asymptomatic, Dr. Akbar Khan stated it was further confirmation of “pseudoprogression” and that the therapy is “actually working very well”. He stated, “it is very unfortunate that ‘world renowned’ pediatric centers like Sick Kids don’t prescribe the therapies we prescribe... they could save children...without gravely harming them using so-called ‘approved’ therapies”.[^78]

[74] Patient A soon began to decline, experiencing pain and other symptoms including neuropathy in December 2017. His parents wondered about the progression of the disease.[^79] A further MRI in January 2018 was ordered and Dr. Akbar Khan maintained while there was some progression, there was also pseudoprogression happening at the same time.[^80] Patient A moved from his family home to a hospice in March 2018, at which time Dr. Akbar Khan stopped prescribing DCA.[^81] Patient A died in November 2018.[^82]

[75] The actions of Dr. Akbar Khan in respect of Patient A were well outside the standard of practice applicable to physician practicing medicine of any kind, much less CAM. As already reviewed the evidence and science do not support the use of DCA as a monotherapy in treatment of any patient much less a child. Both Dr. Kerbel and Dr. Johnston testified that there was no science that suggested the efficacy of treating a child with DCA. The finding made by the Tribunal that the evidence and science are not sufficient to support the use of DCA to treat pediatric medulloblastoma was entirely appropriate and supported by the evidence. I refer also to the communications with the parents. Anything that suggested the validity of this treatment without expressing any uncertainty or risk associated with its efficacy breached any obligation that they be provided with accurate and objective information about the available therapeutic alternatives. Rather it suggests inflation and exaggeration of the potential therapeutic outcomes. Nothing that was provided confirms any reasonable notion that the continued growth of the child’s tumour could so easily be explained as an error in the MRI, confirms this idea by suggesting that if it were otherwise the child would have been paralyzed and positively demonstrates “pseudoprogression” as the explanation.

(c) Patient B

[76] Patient B was 59 years old when, in 2017, she first visited the clinic of Dr. Akbar Khan. She was experiencing ongoing weight loss. After meeting with the naturopath (Dr. Andrews), associated with the clinic, she signed a consent form to have an ONCOblot cancer test.

[77] This is a blood test which detects the presence of proteins specific to the surface of cancer cells (ENOX2 proteins). The makers of the test claim that based on the isoelectric point of the proteins, they can determine the presence of cancer and the tissue of origin.[^83] The test is not established or used in Canada and is now defunct. Dr. Rosenberg testified that although a positive ONCOblot suggests the presence of cancer cells, the test was not in use long enough to determine if a person with a positive result would go on to develop a malignancy.[^84] Dr. Younus reviewed the data and literature on ONCOblot. His report noted that “although reasonable published data exists regarding the basis of this test, the clinical availability has not been established or approved in North America”. Generally, Dr. Younus believes the test is a “marker” of cancer. A variation in a “marker” does not stand as a demonstration of the presence of the disease. It would require a confirmatory test to prove what is happening. As put by Dr. Younus: “you don’t treat the markers. You actually treat the disease”.[^85] Dr. Younus did not think that having Patient B take a ONCOblot test fell below the standard of practice.[^86]

[78] The test as performed with respect to Patient B detected the presence of the ENOX2 protein and that the tissue of origin was “blood cell”. The laboratory report contained a caveat that the “utility for ENOX2 detection in the general population for cancer has not been determined”. It went on to say that “[t]he ONCOblot test results are provided to medical professions for interpretation and are not intended to replace current standards of care.”[^87] Nonetheless, Dr. Akbar Khan “on Saturday July 22, at 6:31 am, 14 minutes after he received the results and not having met Patient B, emailed Patient B that she tested positive for leukemia.[^88] On July 27, 2017, Patient B met with Dr. Akbar Khan and signed a consent form to be treated for her cancer with lower dose naltrexone (LDN). The first line of the consent form notes:

I hereby confirm that I have been diagnosed with cancer. I further confirm that I have elected to have Medicor Cancer Centres Inc. (“Medicor”) treat my cancer with low dose naltrexone (“LDN”).[^89]

[79] The treatments began. This happened before Patient B had received a conventional diagnosis of cancer. She had not been seen by an oncologist or hematologist. As it transpired having her referred to a conventional oncologist proved difficult. The Sunnybrook Health Sciences Centre was unprepared to accept the referral. Her blood test results (her complete blood count) had been normal, with an absence of immature cells. Dr. Younus testified that immature cells are the hallmark of leukemia, and no one would expect a person with no immature cells to have leukemia.[^90] Dr. Akbar Khan wrote to Patient B:

I am sorry the doctors at Sunnybrook are judging your illness without even seeing you first to discuss your symptoms, examine you and review the test results in the proper context.[^91]

[80] I pause to wonder at how this would affect the patient, who having been told and accepted that she had cancer was being rejected by doctors at a well-known and highly regarded regional cancer centre. At the hearing she testified that she could not understand what the problem was and why other patients with leukemia were being seen, but not her. She described herself as losing faith and specified, “I didn’t understand why no one was going to see me, and I was… I had cancer. And I just didn’t understand.”[^92]

[81] On September 25, 2017, she was seen by Dr. Henry Krieger at Scarborough General Hospital. In his consultation note, Dr. Krieger wrote that Patient B was worried about her diagnosis of acute leukemia, and that to rule it out he would perform a bone marrow biopsy. In a subsequent note to Dr. Akbar Khan, on October 6, 2017, Dr. Krieger stated that he did not believe Patient B had acute leukemia but he was awaiting the results from the bone marrow biopsy.[^93] On October 18, 2017, Dr. Krieger wrote to Dr. Akbar Khan. Patient B’s bone marrow aspirate and biopsy were normal. There was no evidence of acute leukemia. Her complete blood count was also normal:

I do not think there is any evidence at present of acute leukemia. I have reassured the patient in the office today.[^94]

[82] Patient B quoted Dr. Krieger as saying:

You do not have leukemia. You do not have cancer. You’ve never had cancer. Go home and enjoy your life.

[83] Patient B testified that she knew she should have been happy but she found the experience “overwhelming” and “didn’t know what to think”.[^95]

[84] Dr Akbar Khan did not accept this conventional diagnosis. First, he wrote to Dr. Krieger asking if Patient B could have a very early low grade chronic lymphocytic leukemia. Dr. Younus testified that “having [a] completely negative bone marrow aspirate and biopsy essentially ruled out the possibility of CLL [chronic lymphocytic leukemia] at this point.[^96]

[85] Even so, Dr. Akbar Khan began a series of communications with Patient B in which he challenged the diagnosis of Dr. Krieger. He advised her that while the ONCOblot test could be wrong, the chance of this occurring was 0.07%. Dr. Akbar Khan told Patient B that Dr. Krieger’s bone marrow test was not sensitive enough to find a low number of cancer cells. He provided her with a lengthy technical explanation of why this could be the case and a medical paper discussing the number of cancer cells that marrow testing can find among normal cells. Dr. Akbar Khan advised Patient B that the most likely correct diagnosis was that she did indeed have leukemia, but that it was very early-stage chronic lymphocytic leukemia which was so mild that it was not making her ill. He recommended that she continue the LDN “which should keep this under control.”[^97]

[86] Patient B did not know what to believe.^98

[87] Even after Dr. Krieger had ruled out leukemia, Dr. Akbar Khan did not alter his diagnosis. His notes continued to say that Patient B had leukemia for which she was receiving LDN. Her LDN prescriptions continued to state that she had a diagnosis of blood cancer. Patient B continued taking LDN until June 2018.[^99]

[88] As with Patient A, the treatment of Patient B, by Dr. Akbar Khan was decidedly outside any acceptable standard of practice. He accepted and acted on the result of a test that was not equipped to provide the conclusion he took from it. In response, he did not, as the CAM policy would require, undertake or have a qualified oncologist undertake a conventional diagnosis. Instead, he prescribed a drug which, as is noted earlier in these reasons, had no quantitative benefit and was not informed by evidence or science. He did this in the face of blood tests that revealed a complete blood count that was normal and an absence of immature cells without which there could be no leukemia. He did not obtain a proper and informed consent. When a conventional diagnosis using a bone marrow biopsy confirmed there was no leukemia or cancer, he did not accept the result. He did not explain the situation to Patient B in the objective, balanced manner required. Instead, he acted to convince the patient that the conventional diagnosis was wrong and in so doing confused her. He suggested other possible diagnosis that included the possibility of a lower grade form of cancer and continued to prescribe treatment with the drug, the benefits of which were not supported by evidence or science.

[89] Dr. Akbar Khan’s treatment of Patient B provided the evidence necessary to found a finding that he was not competent.

(d) Patients treated with SAFE chemotherapy

[90] There was nothing to support the efficacy of SAFE chemotherapy, only the word of Dr. Matsumura and his assertions of its success. There was no acceptable scientific evidence that justified its use. Based on the expert evidence that it heard and accepted, the Tribunal found there was no evidence that SAFE chemotherapy offered patients a favourable risk/benefit ratio as set out in the CAM policy, or that it had a reasonable expectation of remedying or alleviating the health conditions of the ten patients referred to in the evidence.[^100] Yet the Ontario Physicians and Surgeons Discipline Tribunal considered evidence that reflected on the treatment by Dr. Akbar Khan, of those ten patients, each of which he treated with SAFE chemotherapy. In each case there was a finding that Dr. Akbar Khan had acted outside the required standard of practice. He used SAFE chemotherapy even where there was specific reason to avoid its use, disregarding the best interests of his patients.

[91] By way of example, the Tribunal observed:

• in the case of Patient D, there was good reason to avoid using SAFE chemotherapy. Given the patient’s treatment history with platinum-based agents, and the fact that her cancer had returned four months after completing FOLFOX [an alternative chemotherapeutic regimen consisting of 5FU, leucovorin and oxaliplatin[^101]] her cancer was resistant to platinum-based agents. Based on this the Tribunal found that when Dr. Akbar Khan began treating the patient with SAFE chemotherapy, she was already resistant to its main chemotherapeutic agent, the platinum-containing carboplatin,[^102]

• in the case of Patient E, Dr. Akbar Khan exposed the patient to the risks of harm from the toxic side effects associated with carboplatin and ignored reasons to avoid its use because the patient was already likely resistant.[^103]

[92] Dr. Akbar Khan either did not understand or chose to disregard studies that suggested cancers were progressing and the treatment was failing. He misled patients and family members in a fashion which the Tribunal found was “wholly unacceptable.[^104]

[93] By way of example Dr. Tozer testified that:

• in the case of Patient D, while the cancer was progressing, Dr. Akbar Khan told the family “overall it looks like the chemo is stabilizing/slowing down the cancer but not shrinking it,[^105]

• in the case of Patient L, Dr. Akbar Khan reported to the family physician that the patient “responded very well” to the carboplatin when in actuality he was declining, with a very poor prognosis.[^106]

[94] The Tribunal noted:

• in the case of Patient H, there was no reasonable expectation that the Patient would experience fewer side effects and toxicity using SAFE chemotherapy as presented to him by Dr. Khan. As a result, Patient H was exposed to the risk of harm from the opportunity cost of leaving his home and family, and possibly preparing for his death, to travel across the country, likely repeatedly, for ineffective treatment when he had little time to live.[^107]

[95] While Dr. Akbar Khan claimed to have had full and informed consent discussions with his patients, his charts did not record any detail that confirmed or demonstrated discussions of that sort.[^108]

[96] By way of example, the decision of the Tribunal notes:

• in the case of Patient G, the Tribunal observed that “[a]lthough the box ‘reviewed standard chemo’ appeared as checked off in Medicor’s chart notes on Ms. G, there was no written documentation of which standard chemotherapeutic treatment options were discussed with Ms. G, nor how their risks and benefits compared with the SAFE chemotherapy Dr. Khan was offering. The Tribunal did not accept as credible Dr. Kkan’s word that he always had this conversation with patients,[^109]

• in the case of Patient D, the Tribunal “…did not find credible Dr. Khan’s testimony that he reviewed Ms. D’s conventional options with her in detail, including possible response rates and side effects and how these compared to the therapies he was offering her”,[^110]

• in the case of Patient K, the Tribunal found that “[d]uring his initial assessment… Dr. Khan did not obtain informed consent…”.[^111]

[97] The website of Dr. Akbar Khan made claims that were not supported by the evidence. He acknowledged that he told patients that the therapy was “lifesaving” and that remission was possible[^112] and that he had communicated the information he had received from Dr. Matsumura to his patients.[^113] The Tribunal found that the information that Dr. Akbar Khan provided to his patients fell short of the requirements set out in the CAM policy and the requirements for obtaining a proper consent. Consequently, he did not provide his patients with the information necessary for them to make decisions and give informed consent for their treatment with SAFE chemotherapy as well as DCA and LDN.

[98] By way of example, the decision of the Tribunal notes:

• in the case of Patient C, the box “review of R + B of change(s) in the treatment plan” was checked in her chart notes. The Tribunal indicates that “[w]e were not satisfied that this checkbox proves that Dr. Khan provided Ms. C with the information necessary for her to make an informed decision on the use of safe chemotherapy”,[^114]

• in the case of Patient E, “there is no notation in Ms. E’s patient records showing that Dr. Khan told her that because her cancer had already progressed despite her conventional platinum regimen, it was likely resistance to the carboplatin in SAFE chemotherapy. Ms. E would have needed this information if she were to make an informed decision about the use of SAFE chemotherapy.[^115]

[99] In this regard, the Tribunal concluded that:

• Dr. Khan’s left his patients to understand the implications of “limited evidence” without giving them the proper medical guidance and information to make an informed choice. Our findings lead us to the concern that if he continues to practice medicine, Dr. Khan may not provide his patients with sufficient information to make an informed decision. Assisting patients with giving informed consent is a key responsibility of a physician in any area of practice.[^116]

[100] By failing to obtain informed consent and to provide his patients with information necessary to make treatment decisions, Dr Akbar Khan failed to maintain the standard of the profession. His relance on SAFE chemotherapy was ill-advised, without scientific support and without any reasonable expectation of benefit to his patients.

(e) OHIP Billing

[101] Within its decision the Ontario Physicians and Surgeons Discipline Tribunal made the determination that Dr. Akbar Khan engaged in conduct relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members of the College of Physicians and Surgeons as disgraceful, dishonourable or unprofessional,[^117] in part, by billing OHIP for palliative care for six patients that he did not provide.[^118] The College alleged that Dr. Akbar Khan used palliative care codes to bill OHIP for his care of SAFE chemotherapy patients when he was presenting his treatment as potentially curative, or when he was not providing the patients with palliative care. The OHIP Schedule of Benefits defines palliative care as:

[C]are provided to a terminally ill patient in the final year of life where the decision has been made that there will be no aggressive treatment of the underlying disease and care is to be directed to maintaining the comfort of the patient until death occurs.[^119]

[102] Dr. Akbar Khan does not accept this definition. He used his own:

Palliative care is “anything that is not curative” and “not associated with prognosis”.

[103] He provided an example:

Remission still falls within the definition of palliative care because remission is not a cure.[^120]

[104] The Tribunal observed that Dr. Akbar Khan’s personal definition of palliative care under which treating a patient with aggressive chemotherapy to obtain remission would be so classified is not consistent with the OHIP definition. In his testimony, Dr. Akbar Khan denied that SAFE chemotherapy was an aggressive or powerful therapy intended for cure. The Tribunal did not accept his definition of “palliative care” over that established by OHIP and did not accept his definition of “aggressive” treatment.[^121] Although he defined palliative care differently, Dr. Akbar Khan repeatedly billed OHIP for services using its palliative care billing codes.[^122] He understood the difference. His SAFE chemotherapy consent form stated:

I understand that instead of SAFE Chemo, I have a choice to receive no treatment for my cancer, and that I have the option of receiving only comfort care (palliative care).[^123]

[105] By signing this form, these patients were rejecting palliative care, in favour of treatment of the disease. To the extent that Dr. Akbar Khan did not provide the service that OHIP remunerates, he should not have billed OHIP using the billing code in question. He was not entitled to substitute his own language and definitions for those provided in the Schedule of Benefits. In the Factum he filed, Dr Akbar Khan submits that the Tribunal erred in relying on its understanding that the treatment for which he sought payment was “aggressive” and thus could not be “palliative”. There are different levels of being aggressive. He points out that Dr. Tozer used the term “most aggressive palliative option” in respect of a treatment option (“FOLFIRINOX”) said to prolong life and to Dr. Tozer’s use of the phrase “aggressive palliative” suggesting, as Dr. Akbar Khan sees it, that there are varying definitions of “aggressive” when it comes to cancer therapy.[^124]

[106] This misses the point. The definition of “palliative” for the purpose of OHIP billing refers to “no aggressive treatment of the underlying disease.” In treating patients with “SAFE chemotherapy” Dr Akbar held out the goal of there being remission and a cure. It was not directed to comfort and the preparation for the imminent arrival (within a year) of death. It was directed at treating the underlying disease.

[107] While Dr. Akbar Khan did not see this treatment as “aggressive”, the evidence, as accepted by the Tribunal was that, in the absence of evidence or science that established the supposed quieting, by mesna, of the side effects of carboplatin, this treatment, quite apart from not demonstrating any additional beneficial effect, was, in fact, aggressive.

[108] Of the ten SAFE chemotherapy patients considered by the Tribunal, it was provided with the OHIP billing records for six. In each of these cases, the Tribunal found no documentation in the patient charts of Dr. Akbar Khan that he had provided palliative care. There was nothing in the records that showed he had conducted discussions about palliative care goals or plans around the provision of palliative or end-of-life care with any of these patients, either before he began to treat them with SAFE chemotherapy, or after.[^125]

[109] There is no basis for setting aside these findings of the Tribunal. To attempt to obtain compensation for treatment of the disease under the guise of it being palliative is disgraceful, dishonourable and unprofessional and would reasonably be regarded by members of the College of Physicians and Surgeons as such.

Conclusion

[110] The Decision made by the Ontario Physicians and Surgeons Discipline Tribunal is thorough and comprehensive. As to facts, there is no palpable and overriding error. As to the law, there is no error in principle. Dr. Akbar Khan engaged in conduct that, having regard to the circumstances, would reasonably be regarded by members of the College of Physicians and Surgeons as disgraceful, dishonourable and unprofessional. He failed to maintain the standard of practice of the medical profession, particularly in care for the twelve patients whose treatment was reviewed in the Decision and he was, by his actions, demonstrated to be incompetent.

[111] The appeal is dismissed.

Costs

[112] The cost outline filed on behalf of the College of Physicians and Surgeons seeks $10,000. This is eminently reasonable. Costs to the College of Physicians and Surgeons of Ontario payable by the Dr. Akbar Khan, $10,000.

Lederer, J.

I agree _______________________________

Corbett, J.

I agree _______________________________

Charney, J.

Released: April 6, 2023

CITATION: Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096

COURT FILE NO.: 445/22

DATE: 20230406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Corbett, Lederer, Charney JJ

BETWEEN:

DR. AKBAR KHAN

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and THE ONTARIO PHYSICIANS AND SURGEONS DISCIPLINE TRIBUNAL

Respondents

REASONS FOR JUDGMENT

Lederer, J.

Released: April 6, 2023

[^1]: College of Physicians and Surgeons v. Khan 2022 ONPSDT 5 at paras. 1254, 1255 and 1256

[^2]: Ibid at paras. 7-11

[^3]: College of Physicians and Surgeons of Ontario, Policy Statement #3-11 Complementary/Alternative Medicine, (Introduction) at p. 1 (Caselines A2)

[^4]: Ibid (Terminology) at p. 1 (Caselines A2)

[^5]: Factum of the Appellant at paras. 25 and 26 (Caselines A997)

[^6]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at paras. 42 and 47

[^7]: Ibid at para. 24

[^8]: Ibid at para. 31

[^9]: Ibid at para. 36

[^10]: Ibid at para. 38

[^11]: Ibid at para. 37

[^12]: Ibid at paras. 61 and 64

[^13]: College of Physicians and Surgeons of Ontario, Policy Statement #3-11 Complementary/Alternative Medicine, (Clinical Assessment and Diagnosis), (Diagnosis) and (Therapeutic Options) at p. 4 (Caselines A4)

[^14]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at paras. 243-252

[^15]: Ibid at paras. 254-261

[^16]: Ibid at paras. 262 and 265

[^17]: Ibid at paras. 267 and 268

[^18]: Ibid at para. 11: Primarily Phase 1 trials are conducted to establish safety, tolerance, toxicity and drug dosages. A Phase 1 trial will include patients with different types of cancers and in various stages of treatment.

[^19]: Ibid at paras. 269 and 270

[^20]: Ibid at paras 271 and 272

[^21]: Ibid at para. 118: Phase 2 trials usually consist of a smaller number, typically 20, of therapy-naïve patients (meaning they have not been previously exposed to any therapy) who have one specific type of cancer (e.g., breast cancer or colon cancer). Phase 2 trials try to measure the efficacy of the drug.

[^22]: Ibid at para. 273

[^23]: Ibid at para. 274

[^24]: Ibid at para. 289

[^25]: Ibid at para. 259

[^26]: Ibid at para. 275

[^27]: Ibid at para. 290

[^28]: Ibid at para. 497

[^29]: Ibid at para. 499

[^30]: Ibid at para. 501

[^31]: Ibid at para. 502

[^32]: Ibid at para. 503

[^33]: Ibid at para. 504

[^34]: Ibid at para. 505

[^35]: Ibid at paras. 79, 81, 82 and 83

[^36]: Ibid at para. 508

[^37]: As will become clear later in these reasons, it was later determined by another physician, that Patient B did not have leukemia.

[^38]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 506

[^39]: Ibid at para. 38

[^40]: Ibid at para. 558

[^41]: Ibid at paras. 123-126 and 137

[^42]: Ibid at para. 128

[^43]: Ibid at para. 150

[^44]: Ibid at para. 152

[^46]: Ibid at paras. 153-154

[^47]: Ibid at para. 155

[^48]: Ibid at para. 160

[^49]: Ibid at paras. 162 and 163

[^50]: Ibid at para. 164

[^51]: Ibid at para. 185

[^52]: Ibid at para. 213

[^53]: S.O. 1991, Chapter 18, for the purposes of the legislation s. 1 defines "Code" as the Health Professions Procedural Code in Schedule 2 and s. 4 provides: "The Code shall be deemed to be part of each health profession Act."

[^54]: 2002 SCC 33

[^55]: 2019 SCC 65

[^56]: Housen v. Nikolaisen, supra (fn. 54) at paras. 8-15, 19, 20, 22, 23, 25, 28 and 36, and Vavilov, ibid at para. 37, see also Hanson v. College of Physicians 2021 ONSC 513 (DIV. Ct.) at a para. 35

[^57]: S.O. 1991, c. 30

[^58]: For example: "2. Failing to maintain the standard of practice of the profession", "9. Performing a professional service for which consent is required by law without consent", "13. Making a misrepresentation respecting a remedy, treatment or device", "14. Making a claim respecting the utility of a remedy, treatment, device or procedure other than a claim which can be supported as reasonable professional opinion", "30. Failing to respond appropriately or within a reasonable time to a written inquiry from the College", "33. An act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "34. Conduct unbecoming a physician."

[^59]: College of Physicians and Surgeons of Ontario, Policy Statement #3-11 Complementary/Alternative Medicine, (Scope) at p. 1 (Caselines A2)

[^60]: Factum of the Appellant at para. 62 (Caselines A1007)

[^61]: R.S.O., c. S.22

[^62]: Factum of the Appellant at para. 61

[^63]: College of Physicians and Surgeons of Ontario, Policy Statement #3-11 Complementary/Alternative Medicine, (Scope) at p. 2 (Caselines A3)

[^65]: Ibid at pp. 2-4 (Caselines (A3-A5)

[^66]: Transcript, Volume 3 at p.37 l. 9- l. 25, p.53 l. 11- p. 54 l. 5, p. 65 l. 14- p. 66 l. 5 (Evidence of Dr. Johnston) (Caselines B210, B219, 220); Factum of the Respondent at para. 9, Exhibit Book, Exhibit 16(1) at p. 741 (Caselines B703 (sealed)) and Exhibit 19 at p. 944 (Caselines (B708))

[^67]: Transcript, Volume 3 at p.39 l. 7- p. 40 l. 25, p. 43 l. 17- p.45 l. 10 (Evidence of Dr. Johnston) (Caselines B211, B215); Factum of the Respondent at para. 9, Exhibit Book, Exhibit 16(1) at p. 758 (Caselines B703 (sealed)) and College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 371

[^68]: Factum of the Respondent at para. 9, Exhibit Book, Exhibit 16(1) pp. 758-760 (Caselines B703(sealed))

[^69]: Factum of the Respondent at para. 10, Exhibit Book, Exhibit 16(2) at p. 920 (Caselines B703(sealed))

[^71]: Transcript, Volume 14 at p. 97 l. 18- p. 99 l. 25 (Evidence of Dr. Akbar Khan) (Caselines B581- B583) and Factum of the Respondent at para. 10, Exhibit Book, Exhibit 16(2) at p. 822 (Caselines B703 (sealed))

[^72]: Factum of the Respondent at para. 10, Exhibit Book, Exhibit 16(2) at p. 799 (Caselines B703 (sealed))

[^73]: Transcript, Volume 3 at p. 93 l.7- l.15 (Evidence of Dr. Johnston) (Caselines B222)

[^74]: Transcript, Volume 3 at p. 104, l. 14- l.23 l.7- l.15 (Evidence of Dr. Johnston) (Caselines B223)

[^75]: Transcript, Volume 14 at p. 102 l. 16- p. 108 l. 25 (Evidence of Dr. Akbar Khan) (Caselines B584) and Factum of the Respondent at para.11, Exhibit Book, Exhibit 16(2) at p. 927-928 (Caselines B703(sealed))

[^76]: Factum of the Respondent at para.11, Exhibit Book, Exhibit 16(2) at p. 927 (Caselines B703(sealed)): It is not clear but this appears to be a comment made by Dr. Akbar Khan. With the Exhibit having been sealed and no complete version provided it is not possible to confirm that this is so.

[^77]: Factum of the Respondent at para.11, Exhibit Book, Exhibit 16(2) at pp. 895-896 (Caselines B703(sealed))

[^78]: Factum of the Respondent at para.11, Exhibit Book, Exhibit 16(2) at pp. 894 (Caselines B703(sealed))

[^79]: Transcript, Volume 10 at p 129 l. 2- p.132 l. 7 (Evidence of Mr. S.) (Caselines B424)

[^80]: Transcript, Volume 14 at p. 112 l. 2- p. 114 l. 11 (Evidence of Dr. Akbar Khan) (Caselines B591); Factum of the Respondent at para. 12, Exhibit Book, Exhibit 160 pp. 4157-4148 (Caselines B1781(sealed)) and Exhibit 130 pp. 3629-3630 (Caselines 1687(sealed)).

[^81]: Transcript, Volume 10 at p. 129 l. 2-p.132 l. 7 (Evidence of Mr. S.) (Caselines B424) and at p 193 l. 17- p.195 l. 5 (Evidence of Mrs. S.) (Caselines B430)

[^82]: Transcript, Volume 10 at p. 17 l. 15- l. 17 (Evidence of Mr. S.) (Caselines B423)

[^83]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 465

[^84]: Ibid at para. 467

[^85]: Ibid at paras. 469-470

[^86]: Ibid at para. 471

[^87]: Ibid at para. 478

[^88]: Ibid at para. 481

[^89]: Ibid at para. 511

[^90]: Ibid at paras. 520 and 522; Transcript, Volume 1at p. 177 l. 3- l. 5 (Evidence of Dr. J. Younus) (Caselines B131)

[^91]: Ibid at para. 521

[^92]: Ibid at para. 521

[^93]: Ibid at para. 523-524

[^94]: Ibid at para. 525

[^95]: Ibid at para. 526

[^96]: Ibid at para.527

[^97]: Ibid at 528

[^99]: Ibid at paras. 530-531.

[^100]: Ibid at paras. 211-215

[^101]: Ibid at para. 648

[^102]: Ibid at para. 695

[^103]: Ibid at para. 788

[^104]: Ibid at paras. 1144-1150 and 1162-1163

[^105]: Transcript, Volume 4 at p. 102, l. 19- p. 103 l. 11 (Evidence of Dr. Tozer) (Caselines B303) and Factum of the Respondent at para. 40 (bullet 4), Exhibit Book Exhibit 35(15), p. 1125 (Caselines B736 (sealed))

[^106]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at paras. 1102-1103, Transcript Volume 5 at p. 25, l. 4- p.29, l.9 (Evidence of Dr. Tozer) (Caselines B334), Factum of the Respondent at para. 40 (bullet 4), Exhibit Book, Exhibit 45 (13), p. 1401, Exhibit 48, p. 1413(Caselines B746 (sealed), B748),

[^107]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 922

[^108]: Transcript, Volume 12 at p. 105 l. 1- p. 106 l. 16 and p. 123 l. 11- l. 21 (Evidence of Dr. Akbar Khan) (Caselines B500-B501and B508)

[^109]: Ibid at para. 864

[^110]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 702

[^111]: Ibid at para.1066

[^112]: Transcript, Volume 12 at p. 48 l. 19- p.49 l. 18 (Evidence of Dr. Akbar Khan) (Caselines B493-B494)

[^113]: Ibid at p. 56 l. 6- l. 23 and 122 l. 14- p. 125 l. 24 (Evidence of Dr. Akbar Khan) (Caselines B495 and B507-B510)

[^114]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 627

[^115]: Ibid at paras. 776 and 777

[^116]: College of Physicians and Surgeons v. Khan 2022 ONPSDT 26 (Penalty Reasons) at para. 48 (bullet 3)

[^117]: O. Reg. 856/93 (Professional Misconduct) at s. 1(1) para. 33

[^118]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 1254

[^119]: Ibid at paras. 318 and 1167

[^120]: Ibid at paras. 314, 318 and 1168

[^121]: Ibid at paras. 1169 and 1170

[^122]: Ibid at para. 1172

[^123]: Ibid at para. 1175

[^124]: Factum of the Appellant at para. 65 referring to Transcript, Volume 4 at p. 37 l. 8-9 and p. 180 l. 24- p. 181 l. 3 (Evidence of Dr. Tozer) (Not included in Caselines).

[^125]: College of Physicians and Surgeons v. Khan, supra (fn. 1) at para. 1177