Investigative Powers of Regulators

A recent case further illustrates the trend by courts to give a generous scope to the investigative powers of regulators. In Fagbemigun v College of Physicians and Surgeons of Ontario, 2023 ONSC 2642 (CanLII), a physician’s registration was revoked for systematic and extensive false billings, including to the public health care system.

In that case, the regulator appointed an investigator into the registrant’s billing. The appointment of investigator was based on information from a private insurer that raised concerns that the registrant billed for services that were either not rendered or were not medically necessary and had falsified records to support the billings. The investigators conducted an unannounced visit and copied records, including imaging all of the computers in the clinic and one in the registrant’s private office. The investigators also obtained records from the public health funder for services and procedures billed.

At the hearing there was expert testimony that the medical records did not support the medical necessity of the billings. In addition, there was evidence that the registrant did not order sufficient medical supplies that would have been necessary for the number of procedures and tests billed for. There was also significant statistical evidence that the procedures and tests were unusually frequent for the registrant’s type of practice. The discipline panel also relied upon several admissions by the registrant during the investigation including that the registrant received payments for referrals of patients for testing or procedures.

The registrant raised arguments related to the investigators and said that the regulator relied on the evidence obtained through “warrantless searches”. In response to these arguments, the Court made the following points:

  • There is “an established line of authority providing that statutory investigative powers given to regulated health colleges must be interpreted in a broad and purposive manner, consistent with their obligation to regulate professions in the public interest”.
  • Without determining upon whom the onus rests to justify whether there were reasonable and probable grounds to appoint an investigator, there was ample evidence to support the appointment in this case.
  • Where the scope of the investigation is not clearly defined in the appointment itself, recourse can be had to the information supporting the appointment. In this case, the scope of the investigation included whether the services billed were medically necessary. That issue would encompass the investigation of kickbacks for referrals of patients to third parties for testing and procedures. The Court did not express concern about the investigation of billing to the public health funder when the initial complaint was about billing to a private health insurer.
  • The discipline panel was correct to exclude evidence obtained from the registrant’s computer containing personal correspondence and personal financial information.
  • Even if the “seized” non-personal records had been excluded, the subsequent admissions by the registrant, including about paying for patient referrals, could be reasonably viewed as not being causally connected to the seizure.
  • Even if the “seized” non-personal records had been obtained in breach of the Canadian Charter of Rights and Freedoms, their admission would not bring the administration of justice into disrepute. The Court said:

… even if there was a breach in this case, it was not serious. Further, the impact on the Appellant was minimal. As a regulated health professional, he does not enjoy a high expectation of privacy in his business records. Finally, there is strong public interest in the adjudication of a hearing on its merits in the regulatory context, where the purpose is protection of the public. The Tribunal’s findings are owed deference and should not be interfered with in this case.

The Court also supported the finding that the regulator’s expert had sufficient expertise to testify about procedures she did not typically use because she researched them and regularly dealt with the conditions for which they were ordered. It was also appropriate for the expert to review the charts selected because they related to the procedures in issue and were not obtained completely at random.

The Court was also unconcerned about the amount of assistance offered to the registrant at the discipline hearing, where he was self-represented. In particular, there was no concern in all of the circumstances about the hearing panel failing to suggest that the registrant summons a witness whose hearsay evidence was later discounted.

The Court ultimately found that revocation of the registrant’s registration was an “unquestionably fit” sanction.

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