by Written on behalf of Wise Health Law June 27, 2019 4 min read

Introduction

Subsection 51(2) of the Health Professions Procedural Code which forms Schedule 2 of the Regulated Health Professions Act (RHPA) reads as follows:

If a panel finds a member has committed an act of professional misconduct, it may make an order doing any one or more of the following:

1. Directing the Registrar to revoke the member’s certificate of registration.

2. Directing the Registrar to suspend the member’s certificate of registration for a specified period of time.

3. Directing the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration for a specified or indefinite period of time.

4. Requiring the member to appear before the panel to be reprimanded.

5. Requiring the member to pay a fine of not more than $35,000 to the Minister of Finance.

5.1. If the act of professional misconduct was the sexual abuse of a patient, requiring the member to reimburse the College for funding provided for the patient under the program required under section 85.7.

5.2 If the panel makes an order under paragraph 5.1, requiring the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under the order under paragraphs 5.1.

Item 3 above was recently an issue with respect to an Ontario pharmacist facing disciplinary proceedings. Did it provide the authority for a Discipline Panel to impose a three-year prohibition on a member health care professional from having any proprietary interest in a pharmacy and from acting as a director of a corporation that owns a pharmacy? The panel felt it had jurisdiction and that the penalty was needed to protect the public. The pharmacist took the position that there was no such authority granted by the RHPA. He appealed the decision to the Divisional Court of Ontario (ONSC).

Facts

An audit of the appellant’s pharmacy by the Ministry of Health and Long Term Care (Ministry) occurred in June of 2013. The result was the discovery of a number of unsubstantiated claims made for payment from the Ontario Drug Benefit Program (ODB). The pharmacy's ability to submit further claims was suspended and the pharmacist was required to make a payment to the Ministry for almost $89,000.00.

The pharmacist was then investigated by his College. In essence, it found the pharmacist had committed fraud against the Ministry through unsubstantiated claims for reimbursement from the ODB. The pharmacist admitted as much and he was found to have engaged in professional misconduct. A joint submission was made to which all terms of sanction were agreed to except for the two in dispute prohibiting any ownership or governing interest in a pharmacy for three years.

Standard of Review

The ONSC determined that the appropriate standard of review was reasonableness and not correctness as the pharmacist argued. The Panel had the authority to penalize so this was not a true question of jurisdiction.

The Result

The pharmacist was unsuccessful. The Court stated:

The words of s. 51(2) are very broad, conferring a discretion to impose terms and conditions on the certificate of registration of a pharmacist who has committed professional misconduct. There is no express limitation on this authority that would prohibit terms governing ownership of shares or acting as a director of a corporation that operates a pharmacy.

A broad reading of the provision is also consistent with the purposes of the Code. In its reasons for its decision, the Discipline Committee repeatedly mentioned the importance of the public interest and the responsibility of the College, as the regulator of the profession, to protect the public. It was proper for the Discipline Committee to describe its role in this way.

Panel’s Reasons for the Penalty

The Discipline Committee then explained why it imposed the conditions in the present case. It observed that the appellant “represents a risk to the public and to the public’s trust in the profession.” The conditions it imposed on the appellant’s certificate - the restrictions on corporate ownership and directorships – were reasonable, given the gravity of the misconduct. The appellant had knowingly filed false claims by the Pharmacy with a publicly funded drug benefit program. At the time of the penalty decision, he was a director and shareholder of four corporations that owned and operated pharmacies in Ontario. The Committee was concerned about the real risk of further false billing by those pharmacies should the appellant continue to be involved in the ownership or direction of those entities.

At Wise Health Law, we focus on health and administrative law, including appealing and seeking judicial review of disciplinary committees. Our lawyers have significant trial and appellate experience and are passionate about helping regulated health professionals and healthcare organizations understand and protect their legal rights. We will guide you through the process, help you understand potential risks and legal implications, and assist you with or skillfully represent you at the proceedings. To find out how we can assist, contact us online, or at 416-915-4234 for a consultation.

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