by Written on behalf of Wise Health Law November 01, 2019 2 min read

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.



Also in Blog

Health Care Professionals in Ontario Begin the Restart

by Valerie Wise May 28, 2020 3 min read

The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province. 

Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.

The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.

International Medical Graduates Reinforcing the Healthcare Frontlines

by Mina Karabit May 25, 2020 2 min read

In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.

Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.  

Pharmacists’ Time-Limited Change in Scope of Practice During COVID-19

by Mina Karabit May 05, 2020 4 min read

Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.

On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).