Off-Duty Defence Is Off-Side

Registrants cannot avoid professional accountability by trying to separate questionable conduct from their professional practice. That is the message one can take from the decision in Klop v College of Naturopathic Physicians of British Columbia, 2022 BCSC 2086 (CanLII).

In that case, the registrant, a Naturopathic Doctor, used various businesses to manufacture and promote the use of fecal microbiota transplant (“FMT”) materials especially for use for children with autism. “FMT involves the transfer of bacteria and natural antibacterials obtained from the feces of a healthy individual into the gut of a patient through enema, colonoscopy or other means, with the aim of re-establishing a healthy microbial community in the recipient.” Health Canada published a guideline stating that FMT was a new biologic drug with very limited indication (i.e., to treat clostridium difficile (“CDI”)) and for which significant safeguards were necessary in order to prevent harm to recipients. The registrant facilitated the administration of FMT in Mexico including, for a time, to Canadian patients.

The regulator investigated the conduct and eventually imposed an interim order prohibiting the registrant from producing or promoting FTM. The registrant appealed the interim order and also sought judicial review to halt the investigations. The registrant initially asserted, but then withdrew, his argument that the regulator had no jurisdiction to regulate his conduct related to Mexico.

The registrant also argued that this was off-duty conduct outside of the jurisdiction of the regulator since FMT was not a recognized form of naturopathic treatment. The Court said that “it is well settled that off-duty conduct can give rise to discipline when it has a negative impact on the individual’s ability to carry out their professional obligations or where the conduct has a negative impact on, or conflicts with the core values of, the profession”. In addition, there was ample evidence that the registrant used his professional designation in his promotional activities and that he advocated FMT as a treatment for a health condition (despite denials to the contrary). The Court also rejected the argument that the regulator was not allowed to use its processes to enforce another statute (i.e., the federal Food and Drugs Act).

In terms of the interim order, the Court supported the regulator’s inference of risk of harm (BC uses a different test for interim orders for health professions than Ontario) from the Health Canada guidelines. The Court also rejected the need for expert evidence at this stage indicating “that to import a requirement for expert evidence at this stage of the administrative process would have the effect of conflating the investigatory stage of the process with the disciplinary stage”. Also, it was no barrier to imposing an interim order that the regulator had not directly prohibited the use of FMT: “restricting inferences of harm to being made only where conduct is specifically prohibited by the College would unduly tie the College’s hands in its oversight of registrants, and negatively impact—rather than promote—the public interest and confidence in the profession.”

The Court also concluded that it was premature to consider the challenge to the investigation by the regulator:

Some of the reasons why judicial review will only be entertained in exceptional circumstances during an ongoing administrative process include:

a) judicial intervention may fragment the tribunal’s proceedings;

b) the tribunal may resolve the dispute to the parties’ satisfaction;

c) the court’s decision may be rendered moot because of the tribunal’s decision on some other aspect of the proceedings;

d) it is helpful for the court to have an evidentiary record and the tribunal’s analysis of the dispute, especially in areas where the tribunal has special expertise; and

e) courts are to avoid deciding constitutional and Charter issues on hypothetical facts or in a factual vacuum.

The Court found that there were no exceptional circumstances.

This attempt to separate the registrant’s conduct from his professional practice was unsuccessful.

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