CPO File No.2015-0302 &2015-0310 DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO BETWEEN COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO -and- STEVEN BROWN, Registration Number 09752 NOTICE OF HEARING The lnquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario has referred specified allegations against Steven Brown to the Discipline Committee of the College. The allegations were referred in accordance with paragraph 26(1)1 of the Health Professions Procedural Code. The statement of allegations is attached to this notice of hearing. A discipline panel will hold a hearing under the authority of sections 38 to 56 of the Health Professions Procedural Code, as amended, for the purposes of deciding whether the allegations are true. A pre-hearing conference may be held at the offices of the College of Physiotherapists of Ontario at 375 University Avenue, Suite 800, Toronto, Ontario, at a date and time to be fixed by the Registrar. A discipline panel will subsequently convene at the offices of the College of Physiotherapists of Ontario at 375 University Avenue, Suite 800, Toronto, Ontario, also at a date and time to be fixed by the Registrar, for the purposes of conducting the hearing. IF YOU DO NOT ATTEND AT THE HEARING IN ACCORDANCE WITH THE PRECEDING PARAGRAPH, THE DISCIPLINE PANEL MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.
lf the discipline panel finds that you have engaged in professional misconduct, it may make one or more of the following orders: 1 2 3 4. 5. Direct the Registrar to revoke the member's certificate of registration. Direct the Registrar to suspend the member's certificate of registration for a specified period of time. Direct the Registrar to impose specified terms, conditions and limitations on the membe/s certificate of registration for a specified or indefinite period of time. Require the member to appear before the panel to be reprimanded. Require the member to pay a fine of not more than $35,000 to the Minister of Finance. The discipline panel may, in an appropriate case, make an order requiring you to pay all or part of the College's costs and expenses pursuant to section 53.1 of the Health Profession s Proced ural Code. You are entitled to disclosure of the evidence against you in accordance with section 42(1) of the Health Professions Procedural Code, as amended. You, or your representative, may contact the solicitor for the College, Joanna Birenbaum, in this matter at: Ursel Phillips Fellows Hopkinson LLP 555 Richmond St. West, Suite 1200 Toronto, ON MsV 381 Telephone: (416) 969-3504 Facsimile: (416) 968-0325 Email: jbirenbaum@upfhlaw.ca
You must also make disclosure in accordance with section 42.1 of the Health Professions Procedural Code, which states as follows: Evidence of an expert led by a person other than the College is not admissible unless the person gives the College, at least ten days before the hearing, the identity of the expert and a copy of the expert's written report or, if there is no written report, a written summary of the evidence. Date:St Registrar & CEO College of Physiotherapists of Ontario
Statement of Al legations 1. At all material times, Steven Brown was registered as a physiotherapist in the Province of Ontario. 2. Between October 1,2015 and December 31,2015, January 2015, Mr. Brown engaged in professional misconduct within the meaning of section 1, paragraphs 1, 18 and 25 of the Professional Misconduct Regulation,0. Reg. 388/08: Failing to maintain the standards of practice of the profession (para.1); Engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional (para.18); Advertising, unless the advertisement accurately and fairly presents verifiable information to assist a patient in choosing whether to engage the services of the member (para. 25).
PARTICULARS OF THE ALLEGATIONS 1. At all material times, Steven Brown was registered as a physiotherapist in the Province of Ontario and the owner and/or director and/or President/CEo, of Family Physiotherapy Centres ("Family Physio") in Ottawa, Ontario. 2. ln or about October 1,2015, Family Physio was providing physiotherapy care and services to approxim ately 225 residents of a health centre and long-term care facility in Ottawa, Ontario (the "the Long-Term Care Residence"), whose patient population included many war veterans. 3. ln or about October 2015, the Long-Term Care Residence notified Family Physio that it had contracted with a new physiotherapy care provider to deliver OHIP funded physiotherapy patient care to its residents, but that patients were entitled to choose to continue to receive privately funded physiotherapy care from Family Physio or other physiotherapy provider of the patient's choice. 4. Commencing in or about October 2015, Mr. Brown and/or employees or agents of Family Physio at Mr. Brown's direction, distributed pamphlets to employees, residents and substitute decision-makers of residents of the Long-Term Care Residence, promoting Family Physio's services as "Veteran Health Experts" (the "Pamphlet"). A two page letter ("the Lette/'), signed by Mr. Brown as President & CEO, was also distributed to the Long-Term Care Residence patients and/or their family members or substitute decision-makers. Advertising lncl uded Endorsements 5. The College of Physiotherapists of Ontario Standards for Professional Practice - Advertising (the "Advertising Standard") in effect at the material times, provided that: a physiotherapist demonstrates the standard of practice by ensuring that "advertisements
-6- do not contain any information that could be interpreted to be an endorsement of a physiotherapist or his or her practice from an individual or organization" (at para.7). The College of Physiotherapists of Ontario Guide to the Standards for Professional Practice: Advertising;Fees & Billing; Conflicts of lnterest (the "Advertising Guide") similarly states that endorsements of a physiotherapist or his/her practice should not be included in any advertising. 6. ln contravention of the Advertising Standard, the Pamphlet promoted Family Physio as being endorsed by various "organizations" and listed those organisations, along with their logos, including: o Ottawa Public Health o Community Care Access Centre o Bruyère Continuing Care o Province of Ontario (Champlain Local Health lntegration Network and the Ministry of Health and Long-Term Care) 7. The Member did not have the permission of any of the above entities to use their names or logos in the Pamphlet. 8. The Pamphlet also contained an image of the veterans' Poppy next to the words "Veteran Health Experts." The trademark copyright for the Poppy is held by the Royal Canadian Legion. The Poppy symbol on the front cover of the Pamphlet directly or indirectly communicated to the reader that Family Physio had been endorsed by the Royal Canadian Legion. 9. Family Physio and/or Mr. Brown did not have permission of the Royal Canadian Legion to use the Poppy symbol on the Pamphlet. 10. The information contained in the Pamphlet that Family Physio was endorsed by the above listed entities, was not accurate information. 11. The Pamphlet also listed other entities which endorsed Family Physio, specifically
-7- CTV and the Ottawa Senators. The Member states that the logos of these entities were used with their permission. Such endorsements nevertheless contravene the College standard on advertising. 12. Further, endorsements in advertising do not provide members of the public with verifiable information to assist a patient in choosing whether to engage the services of the Member, and thus contravene paragraph 25 of the Professional Misconduct Regulation. Member's Advertising lnctuded lnformation or Súatements that were: lnaccurate; ljnverifiabte; Contained Comparatives or Superlatives; and which may be Interpreted to Guaranúee Success of the Service 13. Paragraph 1 of the Advertising Standard requires that information contained in advertisements be "(a) accurate, (b) true (c)verifiable by the registrant, (d) not misleading by either omitting relevant information or including non-relevant information, and (e) professional." Further, pursuant to paragraphs 9(a), (b) and (d) of the Advertising Standard, advertisements must not contain any statement that may be interpreted to be a: (a) Guarantee as to the success of the service provided; (b) Comparative or superlative statement about service quality, products or people; or (d) Express or implied endorsement or recommendation for the exclusive use of a drug, product or brand of equipment used or sold in the practice. The Advertising Guide similarly prohibits comparative or superlative statements, guarantees of results, and endorsements for the exclusive use of products or services. 14. ln contravention of the Advertising Standard prohibiting statements that may be interpreted to be superlative and comparative, and/or to contain inaccurate, unverifiable and/or misleading information, the Pamphlet promoted Family Physio as having "Award Winning Physio Results", and being "Ottawa's Agent of Change in Healthcare", "and "Orlean's Best Physiotherapy Centre". 15. ln contravention of one or more of paragraphs 1(a), (b), (c), (d), (e), 7 and 9(a), (b) or (d) of the Advertising Standard prohibiting the inclusion of statements that contain
-8- an express or implied endorsement of an exclusive use of a product or brand of equipment; a guarantee as to the success of the service and/or a comparative or superlative statement; and that require information in advertising to be accurate, true, verifiable, not misleading and/or professional, the Pamphlet (bold in original; underlined emphasis added) included the following statements and/or information: Remembering instills confidence. Being able to get around is freedom. Being able to do both is wonderful and the way life should be! Family Physio's exclusive Mobility and Memory Program program utilizes advanced techniques and technology that help to strengthen your muscles and train your cognitive skills. Because it's no fun getting lost when going for a walk! a a a Why not put an end to cold feet and a wet bed - at the same time. Another exclusive. onlv available from Familv Phvsio. utilizes a Health Canada and FDA approved modality that not onlv reverses neuropathv. but puts an end to incontinence once and for all. So why wait to make those feet warm again and give you back the bladder control you deservel lmagine a Life o Free from aches and pains in muscles and joints. o With shorter post-surgery recovery times. o Where vou can oo for a walk anvwhere. o Not havinq to worrv about standing up after you sit. And the Letter contained statements that Family Physio offered (underlined emphasis added): o a Mobility & Memory: An exclusive Familv proqram that utilizes advanced techniques and technology that help to strengthen your muscles and train your cognitive skills; Circulation and Control: Put an end to cold feet and a wet bed - both at the same time. Another exclusive, onlv available from Familv Phvsio - reverses neuropathv and puts an end to incontinence once and for all. Pain Solutions: Chronic pain is debilitating on the best of days. And with FamilV Phvsio's exclusive assessment methodoloqv and process, We can identifying [sic] the very source of the discomfort. Then with our specialized equipment and treatment protocols that target the nervous System causing the pain - we can reduce and possiblv eliminate vour loved one's chronic pain.
-9- Professionalism 16. The Advertising Standard requires that information in advertisements be professional. 17. The Pamphlet and Letter were distributed to residents and/or family members of the Long-Term Care Residence at a time when the residents or their substitute decisionmakers were being asked to choose between a new physiotherapy provider contracted by the Long-Term Care Residence and Family Physio (or other private physiotherapy provider). ln this context, the Letter fell below the Advertising Standard of professionalism in stating the following (underline emphasis added): lf you feel that one of the current providers treating your loved one is not providing the level of care you believe they deserve - call us now for a second opinion. Your and your loved one, collectively 'our patient'- is the only boss we have and listen to. And we have the inteqrity, experience. and intelliqence - to fill their pockets. The care our your [sic] loved one and improving their quality of life is our first priority and only concern - not profits. 18. The above paragraph in the Letter directly or indirectly suggests that other physiotherapy care providers may be providing substandard care and/or influenced by improper motives and/or provide healthcare with a "primary concern" of profit. The direct or indirect denigration of other physiotherapy and/or healthcare providers falls below the Advertising Standard's requirement of professionalism and contravenes section 1, paragraph 18 of the Professional Misconduct Regulation. Written Caution in 2013 Requiring Member to Review Advertising Standard and Guide 19. When the Pamphlet and Letter were developed by Mr. Brown and were distributed by him and/or his employees or agents in the fall and winter of 2O15, Mr. Brown knew or ought to have known the professional expectations for advertising by physiotherapists as set out in the College's Advertising Standard and Guide.
-10-20. ln November 2014, Mr. Brown received a written caution from the lnquiries Complaints and Reports Committee (ICRC). The written caution stated that: "you will receive a written caution about your professional obligations to adhere to the College's Standard for Professional Practice regarding Advertising." The ICRC further expressed its concerns about Mr. Brown's "commitment to following College standards." The ICRC also referred to prior history of Mr. Brown with the College in relation to advertising and noted that Mr. Brown "had been contacted by the College to discuss a deal-of-theday promotion and at that time [Mr. Brown was] advised of [his] professional obligations related to advertising." 21. ln the context of Mr. Brown's prior history with the College with respect to advertising, the Letter and Pamphlet represent a disregard by Mr. Brown for College standards of practice in advertising and professionalism. 22. ln respect of the allegations set out at paragraphs 1-21 above, Mr. Brown contravened s.1(25) of Professional Misconduct Regulation O. Reg. 388/08 by advertising, when that advertising did not accurately and fairly present verifiable information to assist a patient in choosing whether to engage Family Physio's services 23. ln respect of the allegations set out at paragraphs 1-21 above, Mr. Brown contravened the College's Advertising Standard and Guide and thus failed to maintain the standards of practice of the profession, contrary to s.1 (paragraph 1) of Professional Misconduct Regulation O. Reg. 388/08. 24. ln respect of the allegations set out in paragraphs 1 to 21 above, Mr. Brown engaged in professional misconduct within the meaning of s.1 (paragraph 18) of the Professional Misconduct Regulation O. Reg. 388/08.
-11 - APPENDIX 1. Take notice that the documents that have been and will later be disclosed to you will be tendered as business documents pursuant to the Evidence Act of Ontario. 2. All documents that are disclosed to you in this matter are disclosed on the basis that they are to be used solely for the purpose of this proceeding and for no other purpose.