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Conducting a Discipline Hearing

Conducting a Discipline Hearing

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Conducting a Discipline Hearing

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  1. Conducting a Discipline Hearing Welcome

  2. Conducting a Discipline Hearing Date: October 1, 2012 Location: Osgoode Professional Development Centre 1 Dundas St W, 26th Floor Toronto, Ontario

  3. Curriculum Concepts Surrounding the Discipline Process Principles of Administrative Fairness Pre-hearing Procedures Roles of Participants Hearing Procedures Boundaries and Responsibilities of Panel Members

  4. Concepts Surrounding the Discipline Process Brian Gover

  5. 8 Concepts Surrounding the Discipline Process Legal Basis for Discipline Process Confidentiality Public Interest and Professional Regulation How are Cases Referred to Discipline?

  6. 8 Concepts Surrounding the Discipline Process (cont’d) Interim Restriction or Suspension of Certificate of Registration Disclosure of Evidence / Information Disciplinary Allegations and Available Penalties Costs Orders

  7. Legal Basis for Discipline Process Procedural rules for disciplinary proceedings come from: Rules of natural justice (judge-made or “common” law) Statutory Powers Procedure Act Regulated Health Professions Act (“RHPA”) Profession-specific statutes and the regulations made under those statutes The statutes specific to the 26 Colleges governed by the RHPA are examples of profession-specific statutes. Profession-specific statutes governing non-health professionals include the Ontario College of Teachers Act and the Law Society Act.

  8. Profession-Specific Statutes (1 of 3) The 21 profession-specific statutes relating to the 21 professions governed by the RHPA are: Audiology and Speech-Language Pathology Act, 1991 Chiropody Act, 1991 Chiropractic Act, 1991 Dental Hygiene Act, 1991 Dental Technology Act, 1991 Dentistry Act, 1991 Denturism Act, 1991

  9. Profession-Specific Statutes (2 of 3) Dietetics Act, 1991 Massage Therapy Act, 1991 Medical Laboratory Technology Act, 1991 Medical Radiation Technology Act, 1991 Medicine Act, 1991 Midwifery Act, 1991 Nursing Act, 1991 Occupational Therapy Act, 1991

  10. Profession-Specific Statutes (3 of 3) Opticianry Act, 1991 Optometry Act, 1991 Pharmacy Act, 1991 Physiotherapy Act, 1991 Psychology Act, 1991 Respiratory Therapy Act, 1991 The list of profession-specific statutes under the RHPA will soon grow to 26 with proclamation of the Traditional Chinese Medicine Act, 2006, Homeopathy Act, 2007, Kinesiology Act, 2007, Naturopathy Act, 2007, and Psychotherapy Act, 2007

  11. RHPA Applies to discipline hearings involving members of the professions governed by it Key procedural, definitional and penalty provisions are found in Schedule 2 to the RHPA, the Health Professions Procedural Code (“Code”) RHPA applies to all discipline and reinstatement hearings involving members of the health professions

  12. Confidentiality RHPA, s.36: Anyone appointed for the purposes of the RHPA or any health professions act (including committee members) “shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person” There are some exceptions

  13. Public Interest and Professional Regulation Public interest mandate: In carrying out its objects, including regulating the practice of the profession and governing its members, each College is under a duty to serve and protect the public interest Code, s. 3(2)

  14. How are Cases Referred to Discipline? Referrals to Discipline (1 of 5) A screening committee (the Inquiries, Complaints and Reports Committee or “ICRC”) decides whether to refer “specified allegations” of professional misconduct or incompetence to Discipline usually makes this decision on the basis of written material only

  15. Referrals to Discipline (2 of 5) After investigating a complaint or considering a report, the Inquiries, Complaints and Reports Committee (ICRC) may refer a “specified allegation” of professional misconduct or incompetence to Discipline if the allegation is related to the complaint or report – Code, s. 26(1)1.

  16. Referrals to Discipline (3 of 5) Investigation of a complaint: investigates complaints and reviews relevant records and other documents can request the Registrar to conduct an investigation, and the Registrar may appoint investigator(s) for that purpose Member is given notice of the complaint (within 14 days) and an opportunity to respond to the complaint (within 30 days)

  17. Referrals to Discipline (4 of 5) Decision is made by a panel of the ICRC (generally) within 150 days of complaint being filed A decision not to refer to discipline can be reviewed by the Health Professions Appeal and Review Board (“HPARB”) HPARB has authority to override the ICRC and may require the ICRC to refer matters to discipline

  18. Referrals to Discipline (5 of 5) ICRC ability to refer to Discipline is not dependent on a complaint – Code, s. 26(1)1. ICRC referral may be based on information reported to the College where a member’s employment is terminated for cause, or information voluntarily reported to the College

  19. Video on the Discipline Hearing Process

  20. Interim Restriction or Suspension of Member’s Certificate of Registration (1 of 3) Conditions: Member given (a) Notice of ICRC’s intention to make order; and (b) at least 14 days to make written submissions; and Allegation is / has been referred to Discipline

  21. Interim Restriction or Suspension of Member’s Certificate of Registration (2 of 3) ICRC is of the opinion that the member’s conduct: exposes, or is likely to expose his/her patients to harm or injury Without notice if, in addition, urgent intervention is needed – Code, s. 37

  22. Interim Restriction or Suspension of Member’s Certificate of Registration (3 of 3) If ICRC imposes interim suspension/restriction: College must prosecute matter expeditiously, and Discipline Committee must “give precedence to the matter” – Code, s. 37(2)

  23. Disclosure of Evidence / Information: Statute and Judge-Made Law (1 of 3) Distinction between production of evidence by a non-party, and disclosure of evidence/information by a party Member has no right to disclosure of evidence during investigative stage Production is usually achieved at the hearing through a summons issued under s. 12 of the Statutory Powers Procedure Act

  24. Disclosure of Evidence / Information: Statute and Judge-Made Law (2 of 3) Disclosure of evidence by College: written or documentary evidence identity of expert witness(es) and copy of expert report(s)summaries of expert evidence identity of witnesses – Code, s. 42

  25. Disclosure of Evidence / Information: Statute and Judge-Made Law (3 of 3) Disclosure by member: identity of expert witness(es) and copy of expert report(s)/summary of expert evidence – Code, s. 42.1 Member has broad right to disclosure of relevant information under the judge-made law entitled to all relevant and non-privileged information in College’s possession

  26. Disciplinary Allegations and Available Penalties - Disciplinary “Offences” Professional Misconduct (1 of 4) A Discipline panel shall find that a member has committed “professional misconduct” if the: member has been found guilty of an offence (crime) “that is relevant to the member’s suitability to practice” Code, s. 51(1)(a)

  27. Disciplinary Allegations and Available Penalties - Disciplinary “Offences” Professional Misconduct (2 of 4) A Discipline panel shall find that a member has committed “professional misconduct” if the: governing body of a health profession outside Ontario has found the member to have committed an act of professional misconduct that, if committed here, would be an act of professional misconduct as defined by the Code and the regulations Code, s. 51(1)(b)

  28. Disciplinary Allegations and Available Penalties - Disciplinary “Offences” Professional Misconduct (3 of 4) A Discipline panel shall find that a member has committed “professional misconduct” if the: The member has failed to co-operate with the Quality Assurance Committee or any assessor appointed by that Committee Code, s. 51(1)(b.0.1)

  29. Disciplinary Allegations and Available Penalties - Disciplinary “Offences” Professional Misconduct (4 of 4) A Discipline panel shall find that a member has committed “professional misconduct” if the: member has committed an act of professional misconduct as defined by the regulations made under the relevant profession-specific statute Code, s. 51(1)(c) member has sexually abused a patient, as defined by s. 1(3) or s. 1(4) of the Code Code, s. 51(1)(b.1)

  30. Possible Penalty Orders for Professional Misconduct (1 of 2) Revocation (mandatory for certain acts of sexual abuse) Suspension Suspended suspension Imposition of terms, conditions or limitations on certificate of registration

  31. Possible Penalty Orders for Professional Misconduct (2 of 2) Reprimand (mandatory for sexual abuse) Fine of up to $35,000 If sexual abuse, reimburse College fund for patient therapy and counseling up to $16,060 per patient and post security to guarantee reimbursement Code, s. 51(2) to (4)

  32. Incompetence (1 of 2) Incompetence is a status or condition A Discipline panel shall find a member to be “incompetent” “if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted” Code, s. 52(1)

  33. Incompetence (2 of 2) Incompetence differs from incapacity Incapacity is dealt with by the Fitness to Practice Committee according to the procedures set out in sections 57 through 69 of the Code.

  34. Possible Penalty Orders for Incompetence Revocation Suspension Imposition of terms, conditions or limitations on certificate of registration Code, s. 52(2)

  35. Costs Orders (1 of 2) College may be ordered to pay all or part of the member’s legal costs if the Discipline panel “is of the opinion that the commencement of proceedings was unwarranted” Code, s. 53

  36. Costs Orders (2 of 2) Member found to have committed professional misconduct or to have been incompetent may be ordered to pay all or part of the College’s legal costs and expenses investigative costs and expenses costs and expenses incurred in conducting the hearing Code, s. 53.1

  37. Conceptual Overview Richard Steinecke

  38. Principles Guiding the Hearing Itself 1. Understanding the Nature of a Hearing 2. Natural Justice A Right to Be Heard By an impartial, unbiased decision maker 3. Openness and Transparency 4. Burden of Proof 5. Accountability

  39. 1. What is a hearing? A hearing is not: a meeting to resolve differences a consensus-building exercise an investigation a roundtable discussion a research symposium

  40. A hearing is: adversarial presided over by a neutral, impartial adjudicator dispassionate formal legal results in a decision based on the evidence alone involves the application of known criteria to a particular set of facts

  41. 2. What is natural justice? Natural justice is: court developed set of procedural principles imposed on the “state” to protect individual rights from arbitrary government action

  42. Components of Natural Justice A) a right to be heard B) by an impartial person / tribunal

  43. A. A right to be heard, which includes: notice an opportunity to respond and to have the response considered

  44. a. Notice of the factual allegations of the legal conclusions to be drawn of the legal authority, process and possible consequences disclosure (in discipline cases) discussed by Brian

  45. b. An opportunity to respond in discipline cases, this involves the right to: counsel be present when evidence is presented cross-examine on the evidence call evidence make submissions Case decided solely on evidence before Panel

  46. c. And to have the response considered Means no decision made until hearing completed Must avoid deliberations before then Or even appearance that have made up mind Only those who hear can decide Leads to second principle of natural justice

  47. B. By an impartial person/tribunal has no personal interest in the outcome is not tainted by prior involvement no close connection with other participants is not actually partial Those that hear, decide (revisited) Role of Independent Legal Counsel (ILC)

  48. 3. Openness and Transparency “Secrecy is the badge of fraud.” — Sir John Chadwick (b. 1941), British judge. The price of justice is eternal publicity. — Arnold Bennett (1867 - 1931) Southam v. RCMP As a general rule, discipline hearings must be open to the public

  49. 3. Openness and Transparency (cont’d) Problem: how do people find out about hearings? Have to ask? Posting List? Publication in newspapers? Access to notice of hearing and exhibits Access to transcripts Access to results

  50. 3. Openness and Transparency (cont’d) Exceptions for closing a hearing Public security Financial or personal interest outweighs access Prejudice to criminal or civil proceeding Safety of a person can be jeopardized Alternative of banning publication Must ban for witness of sexual misconduct