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The Regulation of Professional Penalties for Physicians & Surgeons in Ontario

Authored By: Brooke Shekter on April 28, 2017

Introduction

In January 2015, the Minister of Health and Long-Term Care (the ‘Minister’), Dr. Eric Hoskins, appointed a Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991 (the ‘Task Force’). The goal of the Task Force was, among other efforts, to assess the effectiveness of the zero-tolerance policy under the Regulated Health  Professions Act,  1991  (RHPA)1  regarding  the  sexual  abuse  of  patients  by healthcare professionals. In response, the Task Force created a report which proposed several changes to the RHPA. Following the release of the Task Force’s report, the Minister introduced Bill 872 in December 2016. Bill 87, if passed, would amend the RHPA to capture more sexual acts which would trigger the mandatory revocation of physician’s license to practice medicine.

This  paper  will  be  guided  by  the  question:  how  does  Bill  87  impact  the  degree of procedural fairness owed to physicians in professional discipline cases involving allegations of sexual abuse? Moreover, since the new amendments will empower the legislature to revoke a physician’s licence in more instances, are physicians entitled to a heightened degree of procedural fairness when facing discipline proceedings in a case involving sexual abuse, than is currently owed to them? To answer this question, the paper will discuss the statutory history of the regulation of physicians, explain the current status of the regulations regarding sexual abuse and explain the proposed changes in Bill 87. This paper will provide a case study of the College Discipline Committee’s penalty decisions in order to evaluate the effectiveness of the Committee in disciplining physicians in cases of sexual abuse. The physician discipline case study will be contrasted with a case study on the effectiveness of the Law Society of Upper Canada in disciplining lawyers in cases involving an analogous abuse of power. This comparison will aid the analysis of whether it is necessary or appropriate for the legislature to be involved in regulating what is regarded as a self-regulating profession. The case studies will be followed by a critique of the Task Force’s report which incited Bill 87. This critique will demonstrate that there is a reasonable apprehension of bias in the report which has subsequently leaked into the proposed changes in Bill 87. This reasonable apprehension of bias demonstrates a lack of procedural fairness to physicians. Issues of procedural fairness are at the centre of the study of Bill 87 because the discipline of physicians is an “administrative decision that affects the rights, privileges or interests of an individuals [which] is sufficient to trigger the application of the duty of fairness.”3 This paper will discuss the impact that Bill 87 will have on physicians alongside an analysis of the principles of procedural fairness in the professional discipline arena.

This paper will conclude that because the proposed changes to the RHPA under Bill 87, if passed, enhance the legislature’s control over the discipline of physicians, the Bill triggers a higher duty of procedural fairness than is currently accorded to physicians facing discipline proceedings in cases involving allegations of sexual abuse. Although physicians are currently granted the application of the duty of fairness under the current disciplinary regime, Bill 87 will expand the Minister’s impact on the “rights privileges or interests of an individual”3 and thus the application of the duty of fairness should also be expanded to strike a fair and just balance between state control and individual rights. Further, if Bill 87 is passed, the standard of proof beyond a reasonable doubt is required in this disciplinary context in order to provide physicians with adequate procedural fairness in cases where the punishment is professional capital punishment.

Regulated Health Professions Act, SO 1991, c 18 [RHPA].

Bill 87, An Act to implement health measures and measures relating to seniors by enacting, amending or repealing various statutes, 2nd Sess, 41st Leg, Ontario, 2016 (first reading 8 December 2016) [Bill 87]

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 ¶ 20 [Baker]; citing Cardinal v. Director of Kent Institution, [1985] 2 SCR 643, at 653.



Testimonials

Several years ago I was fortunate enough to have been selected as a Tremayne-Lloyd Fellow here at Western Law. I used the funds to finish a book and to begin work on a new one. It dawned on me far too late that I had never thanked you for that splendid gift. The new book is to be published by Harvard Press in 2010. The TTL Fellowships provided ritual seed capital for this project, which required me to spend a good deal of time and money at The National Archive in Washington. Again, with many thanks.

R. W. Kostal Professor of Law and History

Tracey Tremayne-Lloyd Health Law