October 29, 2015

Specific discipline hearing issues: ungovernable registrants

Administrative Law
Professional Regulation

In September, we began to look at recent discipline committee decisions, to highlight how some panels have grappled with common hearing issues. This month, we continue by looking at decisions (here) published in August 2015 by the College of Optometrists of British Columbia, about a suspended registrant who continued to practice.

The registrant was originally disciplined in October 2013 in relation to a complaint that he failed to conduct a proper eye examination and failed to diagnose that the patient had serious cataracts. The panel found that the registrant created a fake referral note to cover up the fact he failed to refer the patient to a specialist, and altered his clinical records to falsely show he discussed a cataract with her. He provided the false note and altered records to the Inquiry Committee during an investigation. The panel found that the registrant faked the note and the records. In April 2014, the panel suspended the registrant for three years, and fined him $10,000, as well as imposing other conditions.

The registrant continued to practice despite his suspension. Furthermore, he engaged in a sexual relationship with a female patient.

In addition to the College pursuing an injunction against the registrant in court, the Discipline Committee cited him for, and found he committed professional misconduct and contravened College bylaws. Notably in dealing with the College, the registrant had threatened he would see the College bankrupted, told the registrar of the College to “stop bothering me”, left during his second hearing to play golf, and delayed his second penalty hearing by requesting an oral hearing without telling anyone he would not be appearing. The panel found him “ungovernable”, based on his conduct during his previous discipline hearing and based his conduct during the present hearing:

(a) the registrant’s extensive discipline history with the College and the former Board of Examiners of Optometry;
(b) the registrant’s disregard for the truth in an earlier discipline hearing by his being evasive, his lying about not receiving notice of a complaint despite proof of his signature on receipts, his blaming all errors on the complainant patient and his fabricating a referral note and altering records to falsely show that he discussed a cataract with the complainant when he had not;
(c) the registrant’s attempts to deceive the Inquiry Committee during an investigation;
(d) the registrant’s defiance in ignoring a three-year suspension imposed in an earlier discipline committee penalty decision and his continued unauthorized practice which necessitated an application to BC Supreme Court for an injunction;
(e) the registrant’s failure to dispose of patient files in accordance with the College bylaws following cancellation of his registration;
(f) the registrant’s failure to comply with other aspects of the penalty decision including his failure to pay a $10,000 fine and his failure to reimburse the complainant for her examination cost;
(g) the registrant’s continuing disrespectful conduct towards the College post-cancellation of his registration;
(h) the registrant’s failure to maintain professional boundaries by engaging in behaviour of a sexual nature towards another female patient by pressuring her into giving him a massage and engaging in a sexual relationship with her; and
(i) the registrant’s failure to demonstrate any remorse or any understanding that he did anything wrong.

The verdict and penalty decision in both matters are currently here. The second penalty decision is here.

The College of Optometrists of British Columbia v. Dr. Mackenzie, August 27, 2015

Lisa C. Fong and Michael Ng