BC court affirms regulator's finding of prima facie case of unprofessional conduct, risk of harm
The Supreme Court of British Columbia upheld an interim order prohibiting a naturopathic doctor from producing, manufacturing, advertising, promoting, selling, or shipping certain materials to the public. The court found judicial review of the regulatory investigations premature.
The petitioner in a recent case was a naturopathic doctor focusing on digestive health issues. He owned businesses manufacturing and exporting digestive health products, including fecal microbiota transplant (FMT) materials.
After finding out about the petitioner’s manufacture and export of FMT materials to Mexico for use in treating children with autism, the College of Naturopathic Physicians of British Columbia began an investigation under s. 33 of B.C.’s Health Professions Act, 1996.
Later investigations suggested that the petitioner did not take steps to separate his FMT involvement from his naturopathic practice as he told the college he would. He continued promoting FMT on his websites in connection with his status as a naturopathic doctor.
A former laboratory employee of the petitioner filed with the college a complaint making allegations about the quality of the petitioner’s FMT manufacturing processes. The college began a second investigation and notified the petitioner that it would take interim extraordinary action under s. 35 of the Health Professions Act.
The college then issued an interim order prohibiting the petitioner from producing, manufacturing, advertising, promoting, selling, or shipping FMT materials to the public. This prompted the petitioner to file two petitions.
Both petitions of doctor fail
In Klop v College of Naturopathic Physicians of British Columbia, 2022 BCSC 2086, the B.C. Supreme Court dismissed the two petitions. First, the court dismissed petition S240451 in which the petitioner brought a statutory appeal seeking an order to quash the interim order.
The court found the interim order was justified since the panel of the college’s inquiry committee had basis to conclude that the petitioner’s manufacture and export of FMT materials to Mexico and his involvement in using FMT for treating children with autism in Mexico amounted to a prima facie case of unprofessional conduct and presented a real risk of harm to the public.
The petitioner continued using his credentials to market and promote FMT on his websites despite assuring the college that he would stop, the court noted.
The court ruled that the panel correctly interpreted “professional misconduct” and “unprofessional conduct” within the applicable regulatory framework as including off-duty conduct and as not being limited by the definition of “naturopathic medicine” in the Naturopathic Physicians Regulation, B.C. Reg. 282/2008.
The panel properly understood that it did not have to determine whether the petitioner’s laboratories had standard operating procedures, whether staff had adequate training, or whether the petitioner’s conduct in fact amounted to professional misconduct or unprofessional conduct, the court said.
The panel did not err by relying on Health Canada’s FMT guidance to infer risk of harm to the public arising from the petitioner’s involvement with FMT, the court added.
Next, the court dismissed petition S241376, which asked for judicial review of the investigations, as premature. The petitioner failed to identify jurisdictional defects in the college’s pursuit of these investigations, which fell within its jurisdiction under ss. 33(1) and 33(4) of the Health Professions Act, the court concluded.
The petitioner also failed to meet his burden to show special circumstances justifying the court’s intervention before the inquiry committee’s process could run its course and before the investigations could conclude, the court said.
