A recent B.C. Human Rights Tribunal ruling has revealed that a doctor worked at a Burnaby seniors home for years without the people in charge knowing he had been charged with sexual assault in the past and was under conditions not to treat female patients at a care home without a chaperone.
Dr. Jamuna Makhija filed a human rights complaint against CSH (Carlton Gardens) Limited Partnership, Pro Vita Care Management Inc. and the Burnaby Division of Family Practice after he was banned from treating patients at Carlton Gardens at the corner of Canada Way and Gilmore Avenue in Burnaby in 2019, according to a tribunal ruling last month.
Makhija alleged they had discriminated against him on the basis of sex, age, race, ancestry, place of origin and history of criminal charges.
Makhija had treated residents at the long-term care facility (owned by for-profit senior housing giant Chartwell Retirement Residences) from 1996 to 2019, according to the ruling.
In 2019, however, multiple staff accused him of inappropriate conduct, and he was banned from seeing patients there.
Practice restrictions
It was only after the 2019 allegations that Carlton Gardens' general manager became aware the College of Physicians and Surgeons of B.C. had put multiple restrictions on Makhija's licence years earlier – including prohibiting him from seeing female patients at care homes without a third party present – and that the college had disciplined Makhija multiple times since 2010.
The general manager discussed these findings with Carlton Gardens' director of care (an employee of a different company, Pro Vita Care Management, the facility's care contractor), but he hadn't been aware of the restrictions on Makhija's licence either, according to the ruling.
This, despite the college having put out four media releases between 2010 and 2015 about disciplinary actions taken against Makhija.
The Carlton Gardens general manager then asked Pro Vita's director of care to ask staff if a third party was always present when Makhija met with female patients.
"The general manager says that based on the information she received from the director of care in response to this request, she formed the opinion that Dr. Makhija had not complied with the restrictions," states the ruling.
Sexual assault charges
Until the 2019 misconduct allegations, the general manager had also been unaware of a 2007 news article reporting Makhija had been charged with criminal offences, including sexual assault and criminal harassment, at least one of which allegedly involved a patient.
The tribunal noted there was no information in the article about the outcome of the charges, and Makhija said he has never been prosecuted or found guilty of a criminal offence, according to the ruling.
Carlton Gardens told Makhija in July 2019 he wouldn't be allowed to return to the longterm care home.
Makhija told the tribunal the reason Carlton Gardens banned him was, in part, because of the criminal charges against him, and he claimed that was discrimination.
Carlton Gardens argued the criminal charges were not why it had made the decision but said, even if it had been, the criminal charges were related to the services he provided at the care home.
"(Carlton Gardens) says physicians providing medical care at the residence occupy a role of substantial power and trust in relation to vulnerable residents, and the behaviour for which Dr. Makhija was charged would pose an incalculable risk to residents and workers at the Residence…," states the tribunal ruling.
The tribunal noted Makhija had not gotten a chance to explain the circumstances of the charges before the seniors home banned him, but tribunal member Andrew Robb ultimately concluded the doctor had "no reasonable prospect" of proving the charges were unrelated to his duties – in part because Makhija had not provided evidence about the circumstances of the charges or the restrictions on his licence, or how he had rehabilitated himself.
'Lack of accountability'
As for the 2019 misconduct allegations, Makhija said they were not investigated, and the tribunal said the evidence supported him on that point.
"The evidence suggests confusion among the respondents about who should have investigated the complaints," states the ruling. "Both (Carlton Gardens) and Pro Vita had policies providing for investigations into harassment allegations, but there is no evidence that anyone considered those policies when the complaints were made."
Both businesses denied they had a duty to investigate – and so did the Burnaby Division of Family Practice.
The division had entered into a service agreement with Makhija in October 2016 under its Residential Care Initiative Program, which acts as an incentive system to support physicians to treat patients living at residential care facilities in Burnaby.
It terminated its agreement with Makhija in February 2019 after the allegations surfaced.
In response to Makhija's human rights complaint, all three organizations also denied they had an "employment relationship" with Makhija.
In his ruling, Robb said the "confusion and finger-pointing" between all three organizations appeared to stem from Carlton Gardens' decision to structure the care home as a "fissured workplace" – a phrase coined by U.S. professor David Weil to describe situations where large companies outsource work to smaller companies or hire contractors, freelancers and consultants.
"It appears to exemplify concerns about the lack of accountability in such workplaces," Robb wrote of Makhija's case.
Human rights complaint dismissed
Makhija's human rights complaint was ultimately dismissed without a hearing.
The tribunal said there was evidence he was treated unfairly and the three respondents "acted hastily, based on vague information" when it came to the 2019 misconduct complaints.
In the end, however, the tribunal ruled there was "no reasonable prospect" Makhija could prove those adverse impacts were related to his sex, age, race or other protected characteristics.
As for the criminal charges reported in the news stories, the Vancouver provincial court registry confirmed Makhija had been charged with four counts of sexual assault, one count of sexual interference and one count of touching a young person for a sexual purpose in relation to alleged incidents between April 30, 1994 and Dec. 17, 2005, but all of those charges were stayed in November 2007.
(The BC Prosecution Service does not give reasons for why charges are stayed in specific cases. According to its policy, however, charges must be dropped unless there is a "substantial likelihood" of conviction and the public interest requires prosecution.)
In a different court file, Makhija was charged with criminal harassment in relation to an incident in September 2006. That charge was stayed in April 2008 when Makhija entered a peace bond after admitting the complainant had reasonable grounds to fear him, according to the court registry.
No response from Chartwell, Pro Vita
Neither Chartwell nor Pro Vita responded to questions about why it took Carlton Gardens senior managers until 2019 to learn about restrictions on Makhija's licence or the previous criminal charges against him.
The Burnaby Division of Family Practice said that, although it offers "certain administrative support and financial incentives" for doctors working in long-term care, they are not the doctors' employer and do not have a role in assigning them to long-term care homes.
"It is up to the operator of the individual facility to determine which physician(s) provide services at their facility and hire them accordingly," read an emailed statement from the division.
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