Determining an Appropriate Penalty in Disciplinary Proceedings

Introduction

When a healthcare professional is engaged in disciplinary proceedings and found to have been at fault, the issue of the appropriate penalty or sanction arises. In a recent decision of the Ontario Divisional Court (ONSC) a rheumatologist was successful in appealing the penalty imposed by the Discipline Committee (DC) of the College of Physicians and Surgeons (CPSO). The finding below was that he had engaged in both sexual abuse of two female patients and in disgraceful, dishonourable and unprofessional conduct. The findings were such that there was no automatic call for a revocation of his certificate of registration. Using its discretion, the DC imposed a lifetime revocation anyway.

The behaviour found to have occurred was as follows:

• remarks of a sexual nature;
• asking medically irrelevant questions regarding the sex lives of the patients;
• using sexually explicit language;
• rubbing his groin against the hip of a patient while administering an injection.

Discipline Committee's Assessment

In determining the penalty, the Committee had used the following five factors:

1. Public protection;
2. Maintaining the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest;
3. Specific deterrence of the member;
4. General deterrence of the profession; and
5. Opportunity for the rehabilitation of the member.

Judicial Review

The ONSC agreed with the DC that the five criteria used were appropriate but also found that the DC had made several errors in applying the criteria, as follows:

1. The DC had failed to balance the evidence with respect to each of the five criteria, focusing on criterion two and three, sometimes to the exclusion of the other criteria;
2. The DC had failed to consider proportionality by not considering the differences in the conduct, and the impact of said conduct, as experienced by the two patients.;
3. The DC had failed to apply the principle of consistency and precedent in imposing their penalty by refusing to consider a list of prior decisions raised by the member. Those authorities clearly show in past cases where there was more serious conduct with a greater negative impact on the patients, that the DC had only determined that a suspension and not a revocation was appropriate.

The ONSC held that a penalty determination will only be overturned where there is an error in principle or the penalty administered is unfit. Here, there were multiple errors making the penalty unreasonable. The matter was referred back to the DC for a proper determination of the appropriate penalty.

At Wise Health Law, we focus on health and administrative law, including appealing and seeking judicial review of disciplinary committees. Our lawyers have significant trial and appellate experience and are passionate about helping regulated health professionals and healthcare organizations understand and protect their legal rights. We will guide you through the process, help you understand potential risks and legal implications, and assist you with or skillfully represent you at the proceedings. To find out how we can assist, contact us online, or at 416-915-4234 for a consultation.

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