Discipline Case Summary
The following is a summary of a discipline case heard by a five-member panel of the Discipline Committee of the College of Physiotherapists of Ontario on June 12, August 27, 28, 29, September 3, 5, 6, 10, 11, 12, 1996 and January 8, 9, 10 and 11, 1997.
Allegations
Following an investigation into the practice of Mr. XYZ, the College alleged that the member’s conduct constituted professional misconduct. To the extent that the conduct occurred before December 31, 1993, the misconduct related to paragraphs 2 (failing to maintain standards), 12 (sexual impropriety with a patient), 16 (misleading or improper documentation), 24 (conflict of interest) and 29 (unprofessional conduct) of Section 11 of Regulation 281, R.R.O. 1990. To the extent that the conduct occurred after December 31, 1993, the misconduct also related to clause 51 (1) (b. 1) (sexual abuse) of the Health Professions Procedural Code, which is Schedule 2 of the Regulated Health Professions Act and paragraphs 2 (failing to maintain standards), 8 (conflict of interest), 14 (falsifying a record), 16 (issuing a document containing a false or misleading statement), 17 (issuing an inaccurate document), 18 (false or misleading account), 25 (unprofessional conduct), 27 (failing to reply within 30 days), and 29 (failing to supervise an auxiliary appropriately) of Section I of Ontario Regulation 861/93.
Hearing Summary
Findings Relating to the Allegations of Improper Conduct Towards Patients
It was alleged that Mr. XYZ first entered into a personal relationship with one of his patients in 1992. The Committee found Mr. XYZ guilty of unprofessional conduct in pursuing a social relationship with Ms. P. while she was a patient and in commencing a sexual relationship after terminating the physiotherapist/patient relationship.
The Committee was not persuaded to the requisite burden of proof that sexual impropriety occurred during treatment, but was satisfied that a full sexual relationship commenced shortly (within approximately 10 days) after the termination of the physiotherapist/patient relationship. Mr. XYZ was, therefore, found guilty of unprofessional conduct for entering into a sexual relationship with Ms. P. so soon after the termination of his relationship with her as a patient.
Findings Relating to Allegations of Improper Supervision, Billing and Documentation
Mr. XYZ owns three clinics: The Jubilee Rehabilitation and Fitness Centre in Richmond Hill, The Ontario Sports and Acute Injury Centre in Stoney Creek, and The Brampton Rehabilitation and Injury Centre in Brampton.
It was established that from May 1995 to February 1996, Mr. XYZ was the only physiotherapist working at these clinics. In Mr. XYZ’s absence, service was rendered by support personnel and billed as physiotherapy service. Forms submitted to insurers contained Mr. XYZ’s signature and College registration number.
The Committee found that the clinics were presented to the public as physiotherapy clinics. Patients were under the impression that they were receiving treatment from a physiotherapist; therefore, the Committee determined that the public was misled. In addition, the Committee believes that the public consists not only of the patients who are served at the clinics, but also the payers of the service, such as insurance companies. The Committee believes that Mr. XYZ was aware of his responsibility to have a registered physiotherapist on the premises of his clinic.
The Committee found Mr. XYZ guilty of professional misconduct for practicing below the accepted standards of practice of the profession, for conduct that was misleading to clients and third-party payers, and for acting unprofessionally.
Practicing the Profession While in a Conflict of Interest
The evidence established that on or about December 22, 1992, Mr. XYZ was injured in a motor vehicle accident. He assessed and treated his own injury and submitted accounts to an insurer for these services. The Committee determined that it may be appropriate for a physiotherapist to treat him/herself; however, it is a conflict of interest to charge for these treatments
The Committee found Mr. XYZ guilty of practicing the profession while in a conflict of interest or alternatively found him guilty of engaging in conduct or performing an act that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonorable or unprofessional.
The Member’s Attitude Toward the College
This allegation related to false statements made by Mr. XYZ to College investigators. The panel found that Mr. XYZ made false statements to the investigators and, therefore, found him guilty of unprofessional conduct.
The Committee also alleged that Mr. XYZ had been inconsistent in his portrayal to the College of his physiotherapy education and training. Mr. XYZ received his education in Russia and had indicated on his College registration form that he had obtained a BSc degree in physiotherapy while pursuing his MD degree. The panel found great inconsistencies in the dates and hours of physiotherapy training presented by Mr. XYZ. They found no evidence that he ever graduated with a BSc degree. The panel found Mr. XYZ guilty of unprofessional conduct in this respect.
An additional allegation related to Mr. XYZ’s failure to respond on three separate occasions to written correspondence from the College. The panel heard evidence to suggest that there had been difficulties with mail receipt at Mr. XYZ’s address. As the letters were not sent by registered mail, the panel felt that the burden of proof was not met and the panel found Mr. XYZ not guilty of this allegation.
Penalty
The Discipline Committee ordered the following penalty:
- Mr. XYZ’s certificate of registration be suspended for a period of three years commencing on a date to be fixed by the Registrar.
- Two years of the suspension be suspended on the following conditions:
- Prior to completion of the first year of his suspension, Mr. XYZ completes, at his own expense, a course satisfactory to the Registrar of approximately 15 hours in length relating to professional ethics and an additional course of approximately 15 hours in length relating to sexual impropriety.
- Prior to completion of the first year of his suspension, Mr. XYZ will pay to the College the amount of costs awarded.
- During the first year of his suspension, Mr. XYZ shall have no involvement of any kind in the clinical aspects of the three clinics. He may attend the facilities for the purposes of management or administration of the clinics, but only during the hours that they are not in operation.
- Mr. XYZ shall be entitled to benefit financially from the operation of the clinics, though in no manner from his direct involvement in any clinical aspects of the operation of the clinics during the suspension.
- For the first three years of actual practice following completion of the suspension, the penalty requires that Mr. XYZ:
- Send reports to the Registrar, on a monthly basis, regarding the operation of his practice,
- Submit to and fully cooperate with a maximum of six unannounced inspections of his practice, and
- Pay all expenses within 30 days with respect to the monitoring of his practice to a maximum of $10,000.
Failure to comply with the above conditions, which are overseen by the Registrar, would result in suspension of the member’s registration for the remaining two years on a date to be determined by the Registrar or until the member brings himself into compliance with the conditions.
Costs
The Discipline Committee directed Mr. XYZ to pay the College the amount of $75,000 as a portion of the costs and expenses of the investigation and hearing. In addition, the Committee directs that, until the costs are paid in full, Mr. XYZ’s certificate of registration not be reinstated irrespective of the other terms of the order.