Ahluwalia v College of Physicians and Date:, 2017 MBCA 15

Citation: Ahluwalia v College of Physicians and Date: 20170126 Surgeons (Man), 2017 MBCA 15 Docket: AI16-30-08557 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN: RAJPAL SINGH AHLUWALIA ) D. G. Hill ) for the Appellant Appellant ) ) L. M. Arnason- and - ) for the Respondent ) ) Appeal heard:THE COLLEGE OF PHYSICIANS AND ) October 5, 2016SURGEONS OF MANITOBA ) ) Judgment delivered: Respondent ) January 26, 2017 CAMERON JA Introduction [1] This is a statutory appeal by the appellant (Dr.

Ahluwalia) from a Resolution and Order of an Inquiry Panel (the Panel)of the respondent (the College) which found him guilty of four counts of professional misconduct and one count of displaying a lack ofknowledge of or a lack of skill and judgment in the practice of medicine and/or an unfitness to practice medicine (an unfitness to practicemedicine). Among other things, the Panel cancelled his registration with the College and his licence to practice medicine.

For ease ofreference, both cancellations will be referred to as the cancellation of his licence to practice medicine. [2] He appeals the finding that he displayed an unfitness to practice medicine and the cancellation of his licence to practicemedicine. [3] For the reasons outlined below, I am of the view that Dr. Ahluwalia has not shown that the decisions of the Panelregarding either of the above findings were unreasonable.

The comprehensive reasons given by the Panel clearly indicate the line ofanalysis that, based on the evidence, led to its conclusions, each of which fall within “a range of possible, acceptable outcomes which aredefensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190). Therefore, I woulddismiss the appeal. The Fresh Evidence Motion [4] Prior to the hearing of this appeal, this Court considered and dismissed a motion to file fresh evidence made by Dr.Ahluwalia.

The evidence consisted of a number of documents relating to the computer system that he had been employing in his practiceand the changes that he made to it after he was investigated by the College in 2013. It is important to recognize that Dr. Ahluwalia wasin possession of these documents at the time of the hearing before the Panel. In fact, at the hearing before the Panel, counsel for Dr.Ahluwalia (not the same as in this appeal) requested that some of the documents at issue be excluded.

Applying the criteria in Palmer etal v The Queen, (SCC), [1980] 1 SCR 759 at 775, this Court held that, had due diligence been applied, the documentscould have been adduced at the hearing before the Panel and, thus, they should not be admitted as fresh evidence in this appeal. Inaddition, the Court expressed concern regarding the relevance of the documents. Background and Proceedings [5] For many years, Dr. Ahluwalia was a doctor licenced to practice medicine in Manitoba. He maintained a generalfamily practice. However, his practice was not without issues. [6] In the 1990s, the College cited Dr.

Ahluwalia for professional misconduct and for having demonstrated an unfitness topractice medicine. The facts regarding that citation are that, after having received complaints from a number of Dr. Ahluwalia’s patients,

the College made enquiries with him. In response to the enquiries, Dr. Ahluwalia rewrote the patients’ medical charts and submittedthem to the College on the pretence that they were the original charts. Further, he persisted in his misrepresentations until a professionalopinion showed that the charts that he submitted were not the original charts. Once the true situation was revealed, Dr. Ahluwaliablamed others (namely his former counsel) for the misrepresentations.

After having been found guilty of both counts, the ExecutiveCommittee of the College ordered erasure of his name from the register of the College and ordered him to pay costs of $49,515.71. [7] Dr. Ahluwalia appealed the convictions and the penalty imposed. In Ahluwalia v College of Physicans and Surgeons(Man) (1999), (MB CA), 134 ManR (2d) 152 (CA) (Ahluwalia 1999 #1), this Court upheld the conviction. InAhluwalia v College of Physicians and Surgeons (Man) (1999), (MB CA), 138 ManR (2d) 3 (CA) (Ahluwalia 1999#2), the Court set aside the order of erasure.

It substituted the erasure with a six-month suspension, subject to the conditions that

a) Dr.Ahluwalia undergo a psychological assessment and program of treatment;

b) that he post a notice visible to all of his patients at hispractice location that they may request on each visit a complete copy of the notes that he enters into their medical records; and

c) that heinstall software in his computer system which complies with the College’s “Statement 104” on which he shall enter his notes to everypatient’s medical record at the time of each attendance on him by each patient. [8] Briefly, Statement 104 provides the minimum guidelines for security of medical computer systems and the requirementto keep information derived from patients, and information from colleagues regarding patients, confidential and secure. [9] Against this background, in 2013, the College caused a chart audit to be conducted with respect to Dr. Ahluwalia’smedical practice (the audit).

The resulting audit report (the audit report) was not favourable. It stated that it could not be determinedwhich electronic medical record system Dr. Ahluwalia was using. It said that Dr. Ahluwalia appeared to be billing for a number ofpsychotherapy sessions which were not evident in his records. As well, he was not keeping records in patients’ files regardingmedications that he had prescribed. It concluded that, for the files examined, there was poor record keeping, poor patient follow up andinadequate investigation of patients. [10] On July 12, 2013, the College caused the audit report to be sent to Dr.

Ahluwalia. He was directed to respond to theaudit report in writing within thirty days. [11] On August 11, 2013, Dr. Ahluwalia responded by sending a largely unresponsive letter to the College. In that letter, heindicated that he had presented the audit report to his “esteemed patients and colleagues” and “[p]eer groups of ethicist[s],psychiatrist[s], psychologist[s], general practitioners, surgeons, para medicals etc”. He stated that the conclusion of the group was thatthere was “no lack of knowledge or exemplary care.” [12] A series of letters between the College and Dr. Ahluwalia ensued.

Notably, on September 6, 2013, Dr. Ahluwalia sent adocument entitled “PEER GROUP STATEMENT AND ANALYSIS OF THE PRACTICE OF DR AHLUWALIA” (the peer analysis)to the College. The peer analysis was highly critical of the audit report and the auditor. It implied that the auditor had an agenda againstDr. Ahluwalia. Conversely, the peer analysis praised Dr. Ahluwalia and his practice. [13] Following the receipt of the peer analysis, the College requested the names of the persons who were consulted andinvolved in its preparation. An interview was also set with the Investigation Chair of the College. Dr.

Ahluwalia said he was unable toprovide the names of the persons who conducted the peer analysis on the basis that they were anonymous. [14] On November 27, 2013, Dr. Ahluwalia was interviewed by the Investigation Chair. During that interview, he continuedto misrepresent who he consulted about the audit report and what information had been provided to them. He also misrepresented howthe peer analysis was prepared and who provided the opinions contained in it. It was not until July 3, 2014, that Dr.

Ahluwalia admittedthat no one was consulted regarding the audit report or the peer analysis and that he was the sole author of the peer analysis. [15] It is undisputed that the peer analysis was a false document created by Dr. Ahluwalia with the intent to mislead theCollege. [16] As a result of the audit and the subsequent investigation, the College initiated several counts of professional misconductas well as a count of displaying an unfitness to practice medicine. The Hearing Before the Panel [17] On December 1, 2015, the date of the hearing before the Panel, Dr.

Ahluwalia, through his counsel, agreed to anamended notice of inquiry that contained several counts which I have summarized below: 1. that he made false and misleading statements in his written correspondence to the College when he described one or moreindividuals as having reviewed the audit report and/or having participated in the preparation of the peer analysis; 2. that, during his interview on November 27, 2013 with the Investigation Chair, he attempted to mislead the College about theinvolvement of others in reviewing the audit report and/or having participated in the preparation of the peer analysis; 3. that, after having installed the appropriate computer software in compliance with Statement 104 in November 2000, asrequired by the Manitoba Court of Appeal, he failed to maintain and/or update and/or use that software or his medical system in a mannerthat complied with Statement 104 and/or in a manner that complied with the requirements of trustees of personal health information asset out in The Personal Health Information Act, CCSM c P33.5; 4. in respect to 14 patients, he failed to create and maintain adequate clinical records and/or did not create an accurate orcomplete medical record regarding one or more prescriptions thereby breaching record keeping requirements and/or committing acts ofprofessional misconduct; 5.

That by reason of one or more of the forgoing he displayed a lack of knowledge of or a lack of skill and judgment in the

practice of medicine and/or an unfitness to practice medicine. [18] Dr. Ahluwalia entered guilty pleas to the first four counts of professional misconduct. He disputed the count of havingdisplayed an unfitness to practice medicine. Numerous documents were filed by agreement for the Panel’s consideration. Neither partypresented oral testimony. The Decision of the Panel [19] In comprehensive reasons, the Panel reviewed the false and misleading statements made, including the peer analysis,and the extent of Dr. Ahluwalia’s misrepresentations.

It was “dismayed” by the number of misrepresentations and “deeply troubled” bythe motive behind them insofar as they were designed to cause the College to cease, or fundamentally change, its investigation. [20] Regarding the failure to maintain adequate software, the Panel recognized that Dr. Ahluwalia had initially installedsoftware in compliance with this Court’s order made in 1999. The Panel acknowledged his position that, over time, the system haddegraded and that he was not sufficiently adept to properly deal with or rectify the situation. It recognized that, when the Collegeintervened, Dr.

Ahluwalia promptly took steps to install new software and/or a new medical computer system in order to comply withStatement 104. Nonetheless, it found that his non-compliance reflected a seriously inadequate understanding of the reasons underlyingthose requirements and the importance of complying with them on a continuous basis. [21] Regarding Dr. Ahluwalia’s failure to maintain adequate records, the Panel noted that his records disclosed “insufficientdetail, poor follow up and inadequate documentation of the investigations which had been undertaken.” It said that there were instanceswhere Dr.

Ahluwalia “failed to create any clinical record of his assessment, plan and management of various complaints and diagnoses”. [22] Regarding the count that alleged that Dr.

Ahluwalia displayed an unfitness to practice medicine, the Panel concludedthat all of the counts to which he entered guilty pleas, and in particular his failure to maintain adequate medical records and his failure tomaintain an adequate computer system, reflected “problems which are serious and which relate to proper medical practice and patientcare, and not merely managerial or administrative functions.” [23] In considering penalty, the Panel concluded that Dr. Ahluwalia was ungovernable.

While recognizing his argument thatthere was no evidence of an “offended patient”, the Panel concluded that the seriousness of his behaviour as well as his prior disciplinaryrecord, combined with a lack of evidence as to his rehabilitative potential, militated against allowing him to practice medicine subject toconditions. Further, it would not provide “an adequate assurance of patient safety” nor “enhance the public’s faith in the medicalprofession’s ability to regulate itself.” [24] In the result, it issued an order reprimanding Dr.

Ahluwalia, cancelling his registration with the College and his licenceto practice medicine in Manitoba and requiring him to pay costs of $35,000 (which had already been paid at the time of the Panel’sdecision). The Grounds of Appeal and Standard of Review [25] Dr. Ahluwalia raises two grounds of appeal. First, he asserts that the finding of the Panel that he was guilty ofdisplaying an unfitness to practice medicine was unreasonable.

Second, that the decision to cancel his registration with the College andhis licence to practice medicine was unreasonable. [26] The parties agree, as do I, that, in this case, the standard of review applicable to the decisions of the Panel, with respectto both the finding of Dr. Ahluwalia having displayed unfitness to practice medicine and its decision regarding the penalty, is one ofdeference. That is, the reviewing court will not interfere unless the finding or the decision is shown to be unreasonable.

See Coffey vCollege of Licensed Practical Nurses (Man), 2008 MBCA 33 at paras 36-41, 228 ManR (2d) 64, leave to appeal to the SCC refused,. [27] As noted by Freedman JA in Coffey, the Supreme Court of Canada has enunciated certain principles regarding theconcept of reasonableness.

Those principles indicate that a decision may be reasonable even if it is unlikely that the court would havereasoned or decided as the tribunal did (at para 44 quoting Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 46, [2003] 1SCR 247), that there may be more than one reasonable outcome (at para 46) and that (at para 47): The appellant has the burden of persuading us that “there is no line of analysis within the … reasons that could reasonably lead thetribunal from the evidence before it to the conclusion at which it arrived” (Ryan, at para 55).

Analysis The Finding of Having Displayed Unfitness to Practice Medicine [28] In support of his argument that it was unreasonable for the Panel to have found him guilty of demonstrating unfitness topractice medicine, Dr. Ahluwalia argues that the Panel wrongly conflated the counts of professional misconduct to which he enteredguilty pleas in concluding that he had displayed an unfitness to practice medicine.

He maintains that the matters to which he enteredpleas involved “administrative non medicine related issues [which] did not impact patient care.” He contrasts this with the finding ofhaving demonstrated an unfitness to practice medicine, which he says is essentially an allegation of incompetence. [29] Conversely, the College maintains that there was ample evidence and legal authority supporting the Panel’s finding thatDr. Ahluwalia was guilty of displaying an unfitness to practice medicine. It notes that, in the earlier case of Ahluwalia 1999 #1, this

Court did not overturn the previous finding that he displayed an unfitness to practice medicine based on the misrepresentations that hemade to the College and his failure to take responsibility for his conduct. [30] Regarding Dr. Ahluwalia’s argument that the charge of failing to maintain adequate medical records was administrativein nature and did not impact patient care, I agree that, in a number of cases involving similar allegations, findings of professionalmisconduct as opposed to unfitness have been made.

See for example, Artinian v College of Physicians and Surgeons (Ont) (1990), 40OAC 51 (Div Ct); Ontario (College of Physicians and Surgeons of Ontario) v Gleeson, 2008 ONCPSD 22 ; Ontario (College ofPhysicians and Surgeons of Ontario) v Alexander, 2012 ONCPSD 18 ; and Visconti v College of Physicians and Surgeons(Alta), 2012 ABCA 46, 522 AR 366. [31] Nonetheless, a number of cases have found demonstrated unfitness where the circumstances included a lack of properdocumentation by the physician when combined with other allegations.

For example see Porter v College of Physicians and Surgeons(Ont) (2003), (ON SCDC), 174 OAC 126 (Div Ct) (failure to keep adequate records as well as failing to protectpatients from self harm and inappropriately discussing the doctor’s personal life with patients who had serious psychiatric illnesses);Markman v College of Physicians and Surgeons (Ont) (2003), (ON SCDC), 178 OAC 8 (Div Ct) (failure to maintaingood clinical notes, failure to document findings, failure to conduct physical examinations and failure to formulate a diagnosis ortreatment plan while prescribing large doses of addictive drugs to patients); and Ontario (College of Physicians and Surgeons ofOntario) v Deep, 2008 ONCPSD 8 (where it was difficult to find pertinent information and impossible to get a timely orreasonable view of the patient’s medical status). [32] The Panel found that the charts and records of Dr.

Ahluwalia “were of limited or no value to Dr. Ahluwalia or any othertreating physician”. It said that, “Creating and maintaining adequate records is an essential element of providing competent medicalcare.” It held that his records: [W]ere found to have insufficient detail, poor follow up and inadequate documentation of the investigations which had been undertaken. In addition, there were five instances in which Dr.

Ahluwalia failed to create any clinical record of his assessment, plan and managementof various complaints and diagnoses. [33] The Panel found that a lack of record keeping in this case directly concerned “proper medical practice and patient care,and not merely managerial or administrative functions.” For other cases wherein such a finding was made see Artinian; Markman; Deep;Ontario (College of Physicians and Surgeons of Ontario) v Hanson, 2009 ONCPSD 19 ; and Ontario (College of Physiciansand Surgeons of Ontario) v Jain, 2012 ONCPSD 29 . [34] In my view, the same comments apply to the failure to maintain computer software.

In Dr. Ahluwalia’s case, not onlydid this failure potentially place his patients at risk, there was also a very real concern that his patients’ privacy could be compromised. Iagree with the comments of the Panel when it stated: The requirements of Statement 104 are set forth as minimum standards relating to the use of computerized records. The creation andmaintenance of medical records are essential features of providing competent medical care. [35] The Panel also considered the misrepresentations made by Dr. Ahluwalia in its determination that he had displayed anincompetence to practice medicine.

I agree that such dishonesty often leads to a finding of professional misconduct, as opposed to one ofhaving displayed an unfitness to practice medicine.

See Ontario (College of Physicians and Surgeons of Ontario) v Tesher, 2002ONCPSD 47 ; Adamo v College of Physicians and Surgeons (Ont) (2007), (ON SCDC), 223 OAC 175 (DivCt); Dhaliwal (Re), [2012] OCPSD No 45 (QL); and Ontario (College of Physicians and Surgeons of Ontario) v Clowater, 2016ONCPSD 19 . [36] However, these cases all originate in Ontario and it is important to recognize that the applicable legislation in Ontarioindicates that, to be incompetent, the physician must display a lack of knowledge, skill or judgment in the “professional care of a patient”(emphasis added) (Regulated Health Professions Act, 1991, SO 1991, c 18 at section 52(1)).

Manitoba’s legislation, however, simplyrequires “a lack of knowledge of or lack of skill or judgment in the practice of medicine” or an “unfitness to practise medicine”(emphasis added) (The Medical Act, CCSM c M90, at subsections 59.5(

d) and (e)). Thus, in Manitoba, the alleged lack of knowledge,skill or judgment, or unfitness, does not have to relate to the care of a patient, but only to the practice of medicine. [37] In this regard, as the College points out, in Ahluwalia 1999 #1, this Court previously upheld a finding by the DisciplinePanel that, in falsifying patient charts and displaying a lack of truthfulness in his testimony, Dr. Ahluwalia had demonstrated an unfitnessto practice medicine.

Also see Lawrance v The General Medical Council, [2016] EWHC 215 (BAILII) (Admin). [38] Regardless, the Panel clearly emphasized that the failure to maintain records and the failure to maintain the minimumstandards and software required for a medical computer system were the primary reasons underlying its finding that Dr. Ahluwalia haddisplayed an unfitness to practice medicine. It did not err in also considering his repeated and prolonged dishonesty and attempts tomislead the College. In my view, contrary to Dr.

Ahluwalia’s argument that the Panel wrongly conflated the counts to which he enteredguilty pleas in reaching its conclusion that he had displayed an unfitness to practice medicine, the Panel properly considered all of theallegations in a contextual manner. [39] Based on the above, I cannot say that the decision of the Panel, that Dr. Ahluwalia had displayed an unfitness to practice

medicine, was unreasonable. Penalty [40] Regarding penalty, Dr. Ahluwalia submits that there were other penalties that the Panel could have chosen, all of whichwere of lesser magnitude. He argues that cancellation of a licence to practice medicine should be reserved for only the most seriouscases. He maintains that the Panel did not give appropriate weight to the fact that there were no patients harmed and no one complained.He asserts that the Panel also failed to give appropriate weight to his guilty pleas, his willingness to comply with technologicalrequirements and his apology for his actions.

He maintains that the penalty imposed in his case was significantly different from othercases where less severe penalties were imposed in circumstances more egregious than his. [41] The College submits that the Panel properly considered all of the facts in reaching its determination on penalty,including Dr. Ahluwalia’s repeated disregard for its ethical requirements and standards of practice. [42] I do not disagree that the penalty of cancelling a doctor’s licence to practice medicine is significant.

Unless and until Dr.Ahluwalia applies for, and is granted, reinstatement of his licence, he is unable to practice the profession that has constituted a significantpart of his life for many years. [43] On the other hand, an important factor leading to the decision made by the Panel was its finding that Dr. Ahluwalia wasungovernable. Although the concept of ungovernability originated with the legal profession, it has expanded in its application to thepoint that it is now an appropriate consideration in the penalty stage of discipline proceedings relating to the medical profession.

Forsome recent examples see Ontario (College of Physicians and Surgeons of Ontario) v Deep, 2011 ONCPSD 19 ; Dhaliwal; andOntario (College of Physicians and Surgeons of Ontario) v Porter, 2016 ONCPSD 3 . [44] In considering what constitutes ungovernability, the Panel stated: The Ontario Superior Court of Justice’s decision in Mundulai v The Law Society of Upper Canada 2014 OMSC 7208 provides guidanceas to the meaning of the concept of “ungovernability”.

A professional person will be considered “ungovernable” if the nature, durationand repetitive character of the person’s misconduct demonstrates an inability on the part of that person to respond appropriately to theauthorities who are authorized to regulate the individual’s professional activities. [45] The Panel held that at least three factors strongly suggested that Dr. Ahluwalia was ungovernable. They included:

i) that he “engaged in several different types of serious misconduct involving multiple written and oral misrepresentations tothe College”; ii) that the misrepresentations indicated that he was prepared to lie to his governing body to avoid its exercise of its regulatoryjurisdiction and that his failure to comply with the appropriate regulations for medical charting, computer software and maintenanceshowed that he was prepared to break the rules—this led the Panel to conclude that he would not respond truthfully or practice medicinein accordance with the required standards in the future; and iii) that he had committed similar transgressions in the 1990s, which indicated to the Panel that he had a lack of insight into theseriousness of his misconduct and the importance of adhering to professional standards. [46] In my view, there was evidence on which the Panel properly relied to justify the conclusions that it reached. [47] The finding of ungovernability is a distinguishing factor from the cases that Dr.

Ahluwalia relies on to support hisargument that the penalty imposed in this instance is more severe than lesser penalties that have been applied in other cases similar, oreven more egregious, than his. In none of the cases cited by Dr. Ahluwalia did the governing body make a finding of ungovernability. [48] There are cases wherein findings of previous dishonesty and a lack of insight into proper professional behaviour, inconjunction with a finding of ungovernability, have resulted in the cancellation of a physician’s license.

See Ontario (College ofPhysicians and Surgeons of Ontario) v Bhardwaj, 2006 ONCPSD 20 ; Ontario (College of Physicians and Surgeons of Ontario)v Derenda, 2008 ONCPSD 3 ; and Ontario (College of Physicians and Surgeons of Ontario) v Tadros, 2015 ONCPSD 27. In Tadros, the revocation was mandatory due to the nature of the transgressions that the doctor committed. Nonetheless, theDiscipline Committee held that cancellation would have been appropriate based on his ungovernability. [49] Regarding Dr.

Ahluwalia’s argument that only the most serious of infractions should result in cancellation of his licence,a similar issue was canvassed by Freedman JA in Smith v Law Society of Manitoba, 2011 MBCA 81, 270 ManR (2d) 156, leave to appealto the SCC refused, . In that case, a lawyer was found guilty of seven counts of professional misconduct. The mostserious concern arose when, while acting as an executor of an estate, he sold real property to his wife at a much reduced value withoutadvising the beneficiaries of his wife’s interest.

He also inappropriately dealt with estate monies from other clients and with his trustaccount. Regarding the Law Society’s decision to disbar him, he argued that there was no case in this province where a lawyer had beendisbarred absent the misappropriation of funds in a manner which would be considered criminal. He maintained that his conduct did notamount to that. In dismissing his appeal, Freedman JA observed (at para 51): The Law Society argued that the penalty of disbarment is not reserved for cases of misappropriation.

It referred to Gavin MacKenzie,Lawyers & Ethics: Professional Responsibility and Discipline, Looseleaf (Toronto: Thomson Reuters Canada Limited, 1993), ch. 26

(at p. 26-46): “ It would be a mistake, however, to assume that disbarment is a penalty reserved for cases that combine the worst imaginable offence with the worst imaginable offender. In cases involving fraud or theft, in spite of evidence of prior good character and financial or other pressures, lawyers are almost certain to be disbarred.

In one such case, a discipline hearing panel held that ‘disbarment is as much required for the lawyer who throws away a hard-earned reputation for integrity as it is for the scoundrel who caps a disreputable career with more of the same.’ Thus the profession sends an unequivocal message in the interest of maintaining public trust and the reputation of the profession .” [emphasis added] [ 50 ] More recently, in Doolan v Law Society of Manitoba , 2016 MBCA 57 , 330 ManR (2d) 68 , Hamilton JA, writing for the Court, dismissed an appeal by a lawyer from a decision of the Law Society disbarring him on the basis of a non-criminal misappropriation of money as well as misrepresentations that he made to the Law Society during its investigations into the matter.

In that case, the lawyer did not have a previous history of non-compliance and the amount of money involved was not substantial. Nonetheless, this Court upheld the decision to disbar, accepting that it was not unreasonable for the Disciplinary Committee to find that any lesser penalty “would not be sufficient to reflect the seriousness of the offences” or to deter others from similar actions, and to “preserve public confidence in the legal profession and its ability and willingness to govern itself” (at paras 39, 93). [ 51 ] In this case, the Panel considered Dr.

Ahluwalia’s argument that the cancellation of a licence to practice medicine should only be reserved for the most serious cases and that other lesser sanctions should first be considered. It stated that implicit to his position was the proposition that Dr. Ahluwalia had significant rehabilitative potential and that, with proper training and adequate supervision, he would be able to safely and competently practice medicine. However, the Panel found that it could not accept that proposition for the following reasons: i.

Rehabilitation requires insight into the underlying causes of the problem and the counts for which he was convicted indicated that he had no such insight. ii. Recognizing that, while in certain circumstances conditions can be effective, they will be less so when the root problems include issues relating to integrity and honesty. It further noted that the imposition of conditions imposed on him in the 1990s, including changes to his computer system and a program of psychological assessment and treatment, failed to produce the desired results. iii. There was no evidence introduced relating to Dr.

Ahluwalia’s rehabilitative potential, or a plan of supervision, in light of his past history. [ 52 ] After considering all of the appropriate factors, the Panel recognized that it had to balance the public’s right to protection with the private rights of Dr. Ahluwalia.

It stated: As noted by James Casey in his text The Regulation of Professions in Canada : “Given that the primary purpose of the legislation governing professionals is the protection of the public, it follows that the fundamental purpose of sentencing for professional misconduct is also to ensure that the public is protected from acts of professional misconduct.” [ 53 ] Considering the seriousness of Dr.

Ahluwalia’s conduct—his multiple misrepresentations intended to mislead the College; that the deficiencies in his records showed an “alarming disregard of fundamentally important elements for proper medical practice and patient care”; his failure to maintain a computer system in compliance with the regulation; his prior disciplinary record; and the absence of any evidence with respect to his rehabilitation—the Panel held that the mitigating factors in this case did not counterbalance his misconduct. [ 54 ] In the end, it concluded that to allow Dr.

Ahluwalia to continue to practice medicine, even with conditions, would not protect the public interest nor would it enhance the public’s faith in the medical profession’s ability to regulate itself. [ 55 ] In my view, Dr. Ahluwalia has failed to demonstrate that the decision of the Panel to cancel his registration with the College and his licence to practice medicine was unreasonable. The Panel gave thorough reasons showing the line of analysis that it undertook and justifying each of its conclusions.

The penalty imposed fell within the range of outcomes that was defensible on the facts and law and is therefore entitled to deference from this Court. [ 56 ] In the result, I would dismiss the appeal with costs, including costs for the failed motion to introduce fresh evidence. JA

I agree: JA I agree: JA