Disciplinary Action against
Benjamin Hardick, D.C.
Stephen Barrett, M.D.
In February 2018, the College of Chiropractors of Ontario (CCO) reprimanded Benjamin Hardick, D.C., suspended his registration for one month, ordered him to take a recordkeeping course, ordered him to complete CCO's Legislation and Ethics Examination, and assessed him CN$12,500 for CCO's administrative expenses. The CCO's decision document (shown below) indicates that the proceedings were triggered by a complaint from Terry Polevoy, M.D., which accused Hardick of improperly obtaining and interpreting blood and hormone tests in connection with nutritional seminars that he had conducted. Hardick and his father Cliff Hardick, D.C., operate the Hardick Chiropractic Centre in London, Ontario. The clinic's Web site now states that since 1971, its chiropractors "have helped over 30,000 patients naturally achieve optimal health."
DISCIPLINE COMMITTEE OF THE COLLEGE
OF CHIROPRACTORS OF ONTARIO
|PANEL:||Ms. Judith Mccutcheon (Chair)
Ms. Georgia Allan
Dr. Reginald Gates
Dr. Roberta Koch
Dr. Matthew Tribe
COLLEGE OF CHIROPRACTORS OF ONTARIO
- and -
DR. BENJAMIN J. HARDICK
Mr. Chris Paliare and
Ms. Marie Henein and
Heard: December 22, 2017
1Also in attendance at the hearing were: Mr. Brian Gover, Independent Legal Counsel to the Panel; Ms. Jo-Ann Willson, CCO Registrar, and General Counsel with her; and the Court Reporter, Ms. Lydia Pak.
DECISION AND REASONS
A hearing into allegations of professional misconduct against Dr. Benjamin J. Hardick ("Dr. Hardick" or the "Member") took place before a panel of the Discipline Committee (the "Panel") of the College of Chiropractors of Ontario (the "College" or "CCO") on December 22, 2017. The College has a mandate to regulate the practice of the chiropractic profession and to govern its members and, in so doing, serve and protect the public interest.
The Panel found that the Member engaged in professional misconduct by breaching subsections 51(1)(c) and (c) of the Health Professions Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21, as amended, and paragraphs 1(2), and 1(33) of Ontario Regulation 852193. Below we explain that decision.
The Member faced allegations as set out in two Notices of Hearing, one dated February 27, 2017 (filed as Exhibit 1, referred to during the hearing as the "Polevoy Notice of Hearing") and the other dated March 17, 2017 (filed as Exhibit 2). It was common ground that the two Notices of Hearing concerned the same conduct. Given that overlap, the CCO withdrew the March 17, 2017 Notice of Hearing (Exhibit 2) in its entirety. The College also withdrew two allegations contained in the Polevoy Notice of Hearing (Exhibit 1).2
2These withdrawn allegations (Allegations 2 and 3) alleged that the Member failed to advise patients to consult with another health professional when he knew or ought to have known that the patient's condition was beyond the Member's scope of practice, the patient required the care of another health professional or the patient would be most appropriately treated by another health professional; and that the Member provided diagnostic services, namely lab tests, that were not necessary to patients and/or clients,
Consequently, the hearing proceeded in relation to the two following allegations:
1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professionals Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21 as amended (the "Code")and paragraph 1(2) of Ontario Regulation 852193, in that during the period 2012 - 2015, you contravened a standard of practice of the profession or failed to maintain the standard of practice expected of members of the profession with respect to the obtaining and/or processing of human blood samples, and/or communicating results of lab tests to patients and/or clients.
4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Code and paragraph 1(33) of Ontario Regulation 852193, in that during the period 2012 - 2015, you engaged in conduct or performed an act, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to the obtaining and/or processing of human blood samples, and/or communicating results of lab tests to patients and/or clients.
An Agreed Statement of Facts was filed (Exhibit 3). It provided as follows:
1. Dr. B.J. Hardick ("Member") has been a member of the College of Chiropractors of Ontario ("CCO") since 2001. During the relevant time, he co-operated and practiced chiropractic at Hardick Chiropractic Centre in London, Ontario. The Member also owned and operated Hardick Seminars and Coaching Inc., which conducts nutrition seminars, sells products, and maintains a website regarding natural health.
2. The Member has not been the subject of a previous Discipline Committee hearing.
The Two Notices of Hearing
3. On March 12, 2014, Dr. Terry Polevoy complained to the CCO regarding the Member's practice. His complaint ultimately resulted in the. referral of specified allegations of professional misconduct to the Discipline Committee and a Notice of Hearing dated February 27, 2017 (the "Polevoy Complaint NOH"). During the course of the investigation into Dr. Polevoy's complaint, he provided additional information to the CCO. The additional information led to a further investigation and a second referral of specified allegations to the Discipline Committee, which are contained in the Notice of Hearing dated March 17, 2017.
4. The CCO and the Member agree that the allegations in the March 17, 2017 Notice of Hearing concern the same conduct as the allegations in the Polevoy Complaint NOH. Given that overlap, there is no need to proceed with both notices of hearing. As a result, the CCO is withdrawing the Notice of Hearing dated March 17, 2017.
The Polevoy Complaint
5. In Ontario, the obtaining and testing of human blood samples is regulated under Regulations 682 and 683 of the Laboratory and Specimen Collection Centre Licensing Act. According to these regulations, the owner and operator of a laboratory must ensure that human specimens are only examined at the request of a legally qualified medical practitioner, a dentist, a midwife, a specially qualified registered nurse, or a naturopath. Test results can only be provided directly to the person who requested the test.
6. During the relevant period, the Member knew that medical laboratory tests had to be ordered and interpreted by a legally qualified medical practitioner or other regulated health professional authorized to do so by regulation. He admits he knew that, as a chiropractor, he could not order or interpret blood tests.
7. As part of his nutrition seminars, the Member offered his seminar clients the opportunity to have hormone and nutritional testing done. Seminar clients could go to Hardick Chiropractic Centre on specified dates. Staff from Gamma-Dynacare Medical Laboratories would attend at the Hardick Chiropractic Centre and take blood samples from seminar clients. The blood samples would then be analysed by Gamma-Dynacare Medical Laboratories.
8. Prior to 2014, the blood sampling and laboratory tests conducted on the Member's seminar clients were done pursuant to laboratory requisitions that listed a physician known as "Dr. A" on the requisition. Gamma-Dynacare had contracted with Dr. A. to review the results of blood samples submitted to Gamma-Dynacare by clients who were not medical physicians, such as naturopathic doctors.
9. In 2009, Dr. Polevoy complained to the CCO regarding the Member's practice. Part of the complaint dealt with the blood sampling that was taking place at Hardick Chiropractic Centre and the subsequent lab analysis. The investigation into the complaint was reviewed by the CCO's Inquiries, Complaints and Reports Committee ("ICRC"). In its Decision and Reasons dated March 27, 2012, the ICRC noted that as of January 12, 2011, Dr. A.'s certificate of registration with the College of Physicians and Surgeons of Ontario ("College") was restricted so that he could only:
- teach naturopathic students, medical students and/or residents;
- review laboratory results for laboratory testing requested by naturopaths for no more than an hour per day;
- perform other laboratory work approved by the College in its sole discretion; and
- act as a physician on duty during stress testing undertaken by a technician under very specific conditions.
10. The ICRC noted that the Member had been entitled to assume that Gamma-Dynacare Medical Laboratories had satisfied itself regarding Dr. A.'s scope of practice. It also noted that the restrictions on Dr. A.'s certificate of registration came into effect after Dr. Polevoy's 2009 complaint. However, on a going forward basis, the ICRC drew the Member's attention to restrictions on Dr. A.'s certificate of registration.
11. The Member received a copy of the ICRC Decision and Reasons dated March 27, 2012.
12. Despite the information contained in the ICRC Decision and Reasons dated March 27, 2012 regarding the restrictions on Dr. A's certificate of registration, the Member took inadequate steps to satisfy himself that Dr. A. 's scope of practise included ordering and interpreting blood sample test analysis. In fact, given the restrictions on his certificate of registration, Dr. A. was not legally permitted to order blood sample tests and could only review laboratory results for laboratory testing requested by naturopaths or other laboratory work approved by the College in its sole discretion.
13. During the period March 27, 2012 to March 2014, nutrition seminar clients continued to attend at Hardick Chiropractic Centre to have blood samples taken and to have testing done on the blood samples pursuant to laboratory requisitions that listed "Dr. A." on the requisition. No other physician or other health care professional who was authorized by regulation to order blood tests and to receive the results of such testing was involved in the obtaining of blood samples, ordering laboratory tests, interpreting blood sample analysis, or advising clients of the results of the testing.
14. Since 2016, the Member has not offered his nutrition seminar clients with the option of having blood samples taken for hormone and nutritional testing.
15. The Member admits that he failed to take sufficient steps to ensure that blood sample test ordering, analysis, and communication of test results for his nutrition seminar clients was being done in accordance with Ontario law.
16. The Member further admits this failure constitutes professional misconduct, and in particular, with respect to the Polevoy Complaint NOH:
- is a contravention of a standard of practice of the profession or failure to maintain the standard of practice expected of members of the profession as set out in Allegation 1; and
- would reasonably be regarded by members as unprofessional as set out in Allegation 4.
17. The CCO withdraws Allegations 2 and 3 in the Polevoy Complaint NOH. As set out above, it also withdraws the Notice of Hearing dated March 17, 2017.
18. The Member agrees that he obtained independent legal advice from his lawyer, Marie Henein, prior to signing this Agreed Statement of Facts, and that is signing the Agreed Statement of Facts freely and voluntarily.
FINDINGS OF PROFESSIONAL MISCONDUCT
The Panel accepted the facts as set out in the Agreed Statement of Facts (Exhibit 3). Taking account of it and especially the Member's express admissions of professional misconduct as set out in paragraph 16, the Panel found that the Member engaged in the forms of professional misconduct described in allegations 1 and 4 (limiting the finding in relation to the latter to unprofessional conduct) of the Polevoy Notice of Hearing. The Panel was satisfied that the Member's admissions of professional misconduct were voluntary, informed and unequivocal.
PENALTY AND COSTS SUBMISSIONS
The parties presented the Panel with a Joint Submission as to Penalty and Costs (the "Joint Submission"; Exhibit 4) which invited the Panel to make the following Order:
1. Requiring the Member to appear before the panel to be reprimanded;
2. Directing the Registrar to suspend the Member's certificate of registration for a period of three months ("Suspension") with the Suspension to take effect on December 22, 2017;
3. Directing the Registrar to impose the following terms, conditions and limitations ("Conditions") on the Member's certificate of registration:
a. By March 21, 2018, the Member must:
i. successfully complete the Legislation and Ethics Examination and CCO's Record Keeping Workshop at his own expense and provide evidence of successful completion to the Registrar; and
ii. review, and agree in writing to comply with, all CCO regulations, standards of practice and guidelines, including but not limited to S-001: Chiropractic Scope of Practice.
b. Requiring the Member to be peer assessed at his expense within 6 months after he returns to practice following the lifting of the Suspension.
4. Directing the Registrar to suspend two months of the Suspension if the Member complies with the Conditions set out in paragraph 3a, above, such that the suspension will be lifted as of January 21, 2018.
5. If the Member fails to complete the Conditions set out in paragraph 3a, above, by March 21, 2018, the remaining two months of the suspension will be served from March 22, 2018 to May 21, 2018.
6. Requiring the Member to pay the CCO a portion of its costs and expenses related to the investigation and prosecution of these matters in the amount of $12,500.00 by December 31, 2017, to be paid by way of a postdated cheque to be provided at the hearing.
7. Requiring that the results of the proceeding be recorded in the public portion of the Register and published in the Annual Report or other CCO publications at the discretion of the CCO.
8. The Member agrees that he obtained independent legal advice from his lawyer, Marie Henein, prior to signing this Joint Submission on Penalty and Costs, and that he is entering into this Resolution Agreement freely and voluntarily.
In making submissions in support of the Joint Submission, Mr. Paliare referred to the proposed penalty as indicating to the public and the profession that this conduct would not be tolerated. While protection of patients must be the paramount concern, Mr. Paliare submitted that the proposed penalty order provides for general deterrence, specific deterrence, and remediation. He drew the Panel's attention to paragraph 14 of the Agreed Statement of Facts (Exhibit 3) where Dr. Hardick states that since 2016, he has not offered his nutrition seminar clients with the option of having blood samples taken for hormone and nutritional testing. Mr. Paliare acknowledged that the Member had no previous discipline history, he has admitted his misconduct, he is unlikely to re-offend, and he cooperated with the College. Dr. Hardick had already reimbursed the College the amount set out in the costs award portion of the Order (paragraph 6). Ms Henein similarly invited the Panel to accept the Joint Submission. In doing so, Ms. Henein pointed out that Dr. Hardick did not have any prior discipline history and engaged in a family practice with his father. Since 2010, Dr. Hardick has been giving back to the community in the promotion of health and wellness. As evidence that he understands the seriousness of his conduct, Ms. Henein pointed to the fact that Dr. Hardick has self-audited his behaviour and reviewed his website and social media presence. Ms. Henein reinforced Dr. Hardick's acceptance of the serious consequences of his conduct.
The Panel sought and obtained the advice of its independent legal counsel. In his advice to us, Mr. Gover referred to the process by which a joint submission on penalty is formulated, stressing that it should give the Panel confidence that the proposed penalty order is appropriate. That process was one of give and take, of compromise, and involved College counsel and the Member's counsel, both of whom are experienced lawyers. In approaching this task, the College's mandate of public protection and the Member's interests were taken into account. Mr. Gover also explained to us that the Panel should accept the Joint Submission unless by accepting it, the Panel would bring the discipline process into disrepute or otherwise be acting contrary to the public interest. It was his advice to us that the proposed penalty order was within the appropriate range of penalty for the professional misconduct found in this case, and that the Panel should accept the Joint Submission.
DECISION AS TO PENALTY AND COSTS
After deliberation, the Panel accepted the Joint Submission and ordered that its terms be implemented. The Panel did so after carefully considering the need for protection of the public, specific and general deterrence, and remediation of the Member.
The Panel agreed with both the College and Dr. Hardick's counsel that protection of the public would be satisfied with the Joint Submission. Dr. Hardick no longer offers blood testing to his nutritional clients. Dr. Hardick will need to demonstrate his understanding of and compliance with the all CCO regulations, standards of practice and guidelines by passing the Legislation and Ethics examination, reviewing and agreeing in writing to comply with the above and being peer assessed. These requirements, combined with a suspension, will protect the public.
The penalty provided a clear message to the profession in general and to Dr. Hardick in particular that it is each member's clear duty to govern his or her behaviour to protect patients who are relying on their expertise.
The Panel also accepted that it is appropriate to provide an opportunity for remediation of the Member. If the Member completes the conditions outlined in subparagraph 3(a) above, the suspension may be reduced by two months. These conditions are designed to both protect the public and assist the member in reinforcing desirable behaviour. Dr. Hardick signed an undertaking which should give the public confidence that he will abide by the terms of this agreement. These factors, combined with a peer assessment within six months of the resumption of practice, give the Panel confidence that the penalty jointly agreed upon by the parties is in the public interest and the Joint Submission is therefore accepted.
ADMINISTRATION OF REPRIMAND
It was noted on the record that in paragraph 4 of his undertaking, Dr. Hardick waived his right to appeal; therefore, at the conclusion of the hearing, the Panel administered the reprimand required by paragraph 1 of the penalty order.
I, Judith Mccutcheon, sign this decision and reasons for the decision as Chair of this Discipline panel and on behalf of the members of the Discipline panel as listed below.
Ms. Judith Mccutcheon, Chair
Ms. Judith Mccutcheon
Ms. Georgia Allan
Dr. Reginald Gates
Dr. Roberta Koch
Dr. Matthew Tribe
Date: January 13, 2018
This page was posted on March 17, 2018.