CPSO v. Lee: Court Provides Guidance to Discipline Committees on Setting Reasonable Penalties for Members

In a recent decision, the Divisional Court (the “Court”) provided guidance regarding the criteria and principles of interpretation that should be considered when determining the appropriate penalty for professional misconduct.

Three female patients made allegations of sexual abuse and disgraceful, dishonourable and unprofessional conduct against their rheumatologist (the “member”), a member of the College of Physicians and Surgeons of Ontario (the “CPSO”). The alleged conduct included making remarks of a sexual nature, asking medically irrelevant questions regarding the sex lives of the patients, using sexually explicit language, and in one instance, rubbing his groin against the hip of a patient while administering an injection. The conduct occurred several times between 2008 and 2012 and took place in a clinical setting. The member denied the allegations.

The CPSO Disciplinary Committee (the “Committee”) found the member had engaged in the misconduct and ordered, among other things, the revocation of his certificate of registration. The physician sought an appeal of the Committee’s decision before the Court. The Court dismissed the appeal regarding liability (that the physician had engaged in the misconduct) but allowed the appeal regarding penalty.In determining the appropriate penalty, the Committee had considered the following five criteria:

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 rehabilitation of the member.

The Court confirmed that the five criteria applied by the Committee were appropriate, but stated that the Committee had made several errors in principle when applying the criteria. First, the Court held that Committee 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.

Second, the Court determined that the Committee failed to consider proportionality in its analysis by not considering the differences in the conduct, and impact of said conduct, experienced by the patients. For example, the only patient who experienced physical abuse did not report it having any negative impact, but another patient who experienced less serious conduct experienced a negative impact and required counselling.

Third, the Court found that the Committee failed to apply the principle of consistency in penalty by refusing to consider a list of prior decisions raised by the member. The decisions listed demonstrated that for similar or more serious conduct with greater negative impact on the patients, the Discipline Committee had consistently determined that suspension and not revocation was the appropriate penalty.

The Court stated that a penalty determination will be overturned where there is an error in principle or the penalty administered is unfit. In this instance, the Court found that the Committee had made multiple errors in principle and that the penalty of revocation was unfit. The decision of the Committee on penalty was quashed and referred back to the Committee for rehearing.

Takeaway: When determining an appropriate penalty, a Discipline Committee should consider:

1. The Five Criteria of:

   • Public protection;

   • Maintaining the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest;

   • Specific deterrence of the member;

   • General deterrence of the profession; and

   • The opportunity for rehabilitation of the member;

2. How the evidence with respect to each individual criterion is balanced with all of the other criteria;

3. The principle that the penalty must be proportionate to the nature of the conduct and the impact on the patient(s); and

4. The principle of consistency in penalty.

Failure to apply these criteria and principles could result in a decision being quashed on appeal.If you have any questions about this decision or regulatory proceedings in general, please contact us.