College responds to inquiries concerning recent discipline case
The College of Veterinarians of Ontario has received several requests for further information concerning the discipline proceedings involving Dr. Mahavir Rekhi. The information presented on this page is intended to be helpful in enabling the public to understand the College’s responsibilities in overseeing the conduct of veterinarians in Ontario; the College’s mandate to protect the public; the College’s obligation to fairness; the College’s legislative capabilities; and how the College works in cooperation with the OSPCA.
A Report on Council’s Commitment to a Fair and Robust Disciplinary Process
At its March 2017 meeting, the Council of the College of Veterinarians of Ontario discussed opportunities for policy and legislative change to continue to strengthen its public protection mandate and provide increased education on the disciplinary process to veterinarians and the public. It was felt that while the current processes are strong, opportunities do exist to continue to improve clarity and compliance.
The Council identified several projects to pursue. Each initiative is outlined below.
Council has directed that the use of remitted suspensions in discipline penalties be eliminated. Suspensions are generally remitted when an individual completes the remedial requirements of a discipline order in a timely manner.
Policy on Referrals to Law Enforcement
It is not common for regulators to have policies outlining when a matter that comes to their attention will be referred to external law enforcement agencies. These matters are usually handled on a case-by-case basis in discussion with legal counsel. Despite common practice, the Council has directed that a policy outlining when a matter is referred to law enforcement be developed.
Educational Materials for the Public and Veterinarians
Disciplinary and investigative processes are not well understood by veterinarians and the public. The College has a number of educational resources about the investigations and resolutions and disciplinary processes available on the College’s website. To augment existing resources, several new tools will be developed to enhance the amount of information currently available. Videos, graphs and other visual resources are scheduled for development.
Discipline Panel Member Education
The existing educational materials for panel members are very good. They contain valuable information and are available when needed. There is an opportunity to enhance the process with the implementation of panel debriefs after a hearing to evaluate whether there are things to be learned from each individual process. The addition of a Discipline Committee newsletter will ensure that panel members are kept up to date with the current philosophy of Council and emerging case law. Opportunities for further changes will be explored as evaluation of the experience of panels continues.
Philosophy on Animal Abuse
The College’s position statements on Reporting Animal Abuse and Neglect and Animal Welfare will be reviewed to ensure that they reflect the College’s philosophy on the zero tolerance of animal abuse by a veterinarian.
Legislative Reform Initiatives
The College’s existing legislative reform initiatives include work that is focused on the discipline area of the College. Improvements to the Investigations and Resolutions processes at the College, an increase in the transparency of matters referred to Discipline and an opportunity to use an interim suspension for individuals who pose a risk to the public due to lack of competency (this is used before a disciplinary finding can be made in very serious cases) are all under consideration.
Work is well underway on all of these projects and changes will be implemented over the coming months and as regulatory reform permits.
Why was there a delay in releasing a decision on Dr. Mahavir Rekhi’s case?
The College took immediate action with a Registrar’s investigation when the conduct of Dr. Mahavir Rekhi was brought the College’s attention in March 2015. Following a thorough investigation which included review of the video evidence, the matter was addressed in a pre-hearing and then in a discipline hearing which took place on July 21, 2016.
Why did the College not suspend Dr. Mahavir Rekhi immediately after viewing the videos?
The College does not have the legislative authority to impose an interim suspension prior to a discipline panel delivering an order on a conduct matter.
Why was revocation not ordered in this case?
A discipline panel has the obligation to provide balanced and fair decisions on challenging and sensitive matters. During its deliberations, the panel examines the evidence, hears from experts presented by the College and the member, and considers existing case law that is relevant to the matter.
Case law is one of the panel’s considerations when determining a penalty. If the case law says the particular conduct merits a sanction between point A and point C then it would be considered unfair for the College to seek a penalty beyond that range, particularly where the prosecutor and discipline panel are certain the penalty would not withstand an appeal. Such a position by the College would be perceived as being an abuse of authority in forcing the member to appeal to a court to obtain the appropriate sanction.
Although public protection is the College’s central mandate, the obligation to fairness cannot be disregarded.
Judicial oversight serves to protect an individual from government (and quasi-government entities like the College) acting arbitrarily and seeking a penalty that the regulator knows, or ought to have known, is not within the range of what courts have said is appropriate for the conduct.
Revocation is generally restricted to cases where there have been multiple prior findings of similar kinds of misconduct against a member (or repeat offenders), cases of premeditation, exploitation (i.e., drugs for sex) and dishonesty, and an absence of evidence of potential rehabilitation, all of which are lacking in this case. As well, two leading Canadian experts, were of the view that Dr. Rekhi was amenable to remediation. Those experts also agreed to provide extensive rehabilitation to Dr. Rekhi.
Moreover, similar conduct in the veterinary and human health professions rarely results in revocation and the proposed penalty, as described above, fell within the range of penalties sanctioned by the courts and other regulators. The fact that video recordings were available did not make the conduct any worse than in a case where, for example, a nurse or physician abuses vulnerable patients on a deserted hospital ward and it is not recorded; it is all clearly grossly inappropriate. In this case the conduct was clearly reprehensible but the discipline panel also had to consider that Dr. Rekhi is a reasonably experienced practitioner with no prior findings, amenable to rehabilitation and he demonstrated remorse by pleading guilty, all of which are significant mitigating factors. Finally, revocation is not necessarily permanent as former members can reapply for a licence in any event.
How does a Discipline panel come to its decision?
The discipline panel’s discussions during their deliberations are not public. However, where the parties involved (being the College as the prosecutor and the member as the defendant) enter into an Agreed Statement of Facts and a Joint Submission as to Penalty and Costs, the law is clear that such agreements must be accepted by the discipline panel unless the proposed disposition falls well outside the range of similar cases.
The panel’s function is to “screen” the proposal and ask itself if what is being proposed falls within a range of outcomes supported by prior decisions. The proposed penalty in this case fell well within decided cases across a number of professions.
Why does the College say this is a serious penalty?
That is how the leading authorities refer to suspensions of this length.
A leading text on regulatory law in Ontario - A Complete Guide to the Regulated Health Professions Act – states that: “Courts view a suspension of six months or longer as quite severe…”. In Dr. Rekhi’s case, the minimum period of suspension is six months; the maximum is ten months.
Further, the Divisional Court in Re Golomb and College of Physicians and Surgeons of Ontario, 1976 CanLII 752 (ON SC) said that lengthy suspensions can be tantamount to revocation. In that case a physician was found guilty of professional misconduct in relation to his billing practices and was suspended for six months. On appeal, the Divisional Court stated the following regarding a six-month suspension:
"turn now to determine what penalty ought to be imposed. The penalty imposed by the Discipline Committee of six months' suspension from practice is one that would be virtually ruinous, particularly to a doctor engaged in a family practice. That penalty amounts to a very serious monetary loss because of the loss of income and because of his on-going overhead obligations. A suspension of such a period would likely cause the almost total loss of his practice. At least some of the members of the families who are his patients would probably require medical care during that period and would seek it elsewhere. It is not likely that if they were satisfied by their treatment by other physicians that they would return once the six-month suspension ended. That suspension could amount to the destruction of his practice."
It is therefore clear that the courts view a suspension of 6 months as severe.
How does the College of Veterinarians of Ontario work with the OSPCA?
The Ontario SPCA (OSPCA) is seen as the recognized Ontario authority on animal welfare issues and making a measurable difference for animals. The mission of the Ontario SPCA is to facilitate and provide for province-wide leadership on matters relating to the prevention of cruelty to animals and the promotion of animal welfare.
The government of Ontario is responsible for the administration of statutes and regulations that provide the legislative framework for organizations like the CVO and OSPCA to fulfill their respective mandates. While the respective roles are different, and each organization has different means and different measures, all have complimentary outcomes regarding the treatment of animals.
OSCPA inspectors and agents have the authority to enforce the provisions under the OSPCA Act and any other law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals. In this regard OSPCA inspectors may exercise any of the powers of a police officer.
The College does cooperate with the OSPCA in its investigations and has a long history of a strong, cooperative working relationship with the OSPCA.