Use of Unconventional Procedures

Physician regulators have historically struggled with the question of whether to restrict or sanction non-traditional activities by their registrants. In fact, in Ontario, the enabling legislation for the physician regulator was amended in 2000 to state:

5.1 A member shall not be found guilty of professional misconduct or of incompetence… 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.

A recent decision provides some guidance on the issue: Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096 (CanLII). In that case the registrant, a physician, used several unconventional procedures to assess and treat cancer patients. After an 18-day hearing the registrant was found to have engaged in professional misconduct and to be incompetent. In dismissing the registrant’s appeal, the Court made the following points:

  1. Expert witnesses could be qualified to express opinions even if they did not use the procedures in issue. Being knowledgeable of conventional procedures, familiar with the unconventional ones, and having researched the unconventional ones was sufficient.
  2. A finding could be made that the registrant fell below the accepted standard of practice of the profession even though no specific standard was enacted in the regulations.
  3. On a related note, the Court viewed the regulator’s policy on Complementary/Alternative Medicine as “guidance as to the standard against which the actions of physicians will be assessed” even though it was not prescribed by law. Reliance on the policy in conjunction with the expert evidence was not an error in law.
  4. The Court supported the hearing panel’s discounting of anecdotal evidence, especially the registrant’s conversation with another physician who used some of the procedures, as an insufficient basis for using the procedures.
  5. There was no loss of jurisdiction or appearance of bias because two of the three physicians on the five-person panel were unable to complete the hearing.
  6. The Court also supported the hearing panel’s findings related to the registrant failing to obtain informed consent and the impropriety of billing of treatment services as palliative care.

In this case the Court found that there was a significant amount of evidence to support the findings of the discipline panel and that the panel’s 269-page decision adequately explained the basis of its findings. Undoubtedly the factual context, including the treatment of patients with diagnosed cancer and providing overly optimistic assurances to patients inconsistent with conventionally available test results, played a significant role in the outcome.

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