Do We Need Reprimands?
Reprimands are one way that a panel of a Discipline Committee can take disciplinary action against a registrant. Reprimands are formal declarations imposed at the conclusion of the discipline hearing, stating that the registrant’s conduct was unprofessional or improper. Reprimands are issued every time a registrant is found guilty of professional misconduct or incompetence. This past year, the Ontario Physicians and Surgeons Tribunal (“Tribunal”) reconsidered whether reprimands are effective or necessary in every circumstance.
The Tribunal and Practice Direction
The Tribunal is the independent administrative body that adjudicates allegations of professional misconduct or incompetence of physicians in Ontario. The Tribunal’s practice has been to issue a reprimand in almost every discipline case where a registrant has been found guilty of professional misconduct or incompetence. Recent case law questioned whether this practice should continue.
In January 2024 the Tribunal issued an Interim Practice Direction on Reprimands (the “Practice Direction”), limiting the use of reprimands. The Practice Direction asked that parties make submissions about the desirability and purpose of the reprimand and to root their submissions in the specific circumstances of their case. In doing so, the parties were also expected to consider all regulatory tools that were available to the Tribunal to discipline the registrant. [1]
The Practice Direction was in effect from January to June 2024. Tribunal cases in that time referenced the Practice Direction [2] and invited parties to consider the facts of the case and make submissions about whether a reprimand should be issued, and the reasons for issuing it. In one case, [3] a physician failed to report on his annual renewal that he had been charged with a criminal offense. The penalty for his unprofessional conduct included a suspension and completing instruction on ethics. The Tribunal considered the Practice Direction and whether a reprimand would promote public protection. Ultimately, the Tribunal believed the reprimand would allow the Tribunal to speak directly to the physician to emphasize their concerns about the many times the registrant appeared before the College and to warn him that if he continued his unprofessional conduct, the consequences would become more severe.
Even though the Practice Direction made reprimands discretionary the Tribunal noted in July of 2024 that the jurisprudence since January 2024 “demonstrated that reprimands remain an important regulatory tool in nearly all cases.” Every joint submission since the Practice Direction was issued included a reprimand and, in every case, the panel of the Tribunal accepted the parties’ submissions that the reprimand was necessary and served regulatory goals. [4] The decision stated that reprimands are effective and should continue to be a common penalty. [5]
The Future of Reprimands
While the Tribunal discontinued the Practice Direction in June 2024, the Tribunal provided the following guidance regarding the purpose of reprimands and the main principles that should be considered when preparing a reprimand for a registrant. Reprimands should:
Not be intended to scold, shame, or humiliate the registrant.
Explain what the registrant did wrong, why it was wrong, the seriousness of the conduct, and the impact of the conduct on others.
Be forward-looking, and should note, where appropriate, the importance of rehabilitation and of avoiding further findings of misconduct. [6]
The Tribunal noted that reprimands are also important in that they inform complainants, affected patients, and other members of the profession and the public of the Tribunal’s concerns about the misconduct, and that this is particularly the case when the reprimand is delivered on the day of the hearing before formal reasons have been prepared. [7]
The legal world is increasingly focusing on implementing a trauma-informed, right-touch approach to litigation and professional regulation. The questions of how best to regulate registrants, and how to ensure that regulatory intervention is proportional to the risk posed by the registrant’s conduct, are fundamental and useful questions. Whether reprimands truly serve their intended purpose, and whether reprimands should continue to be used by regulatory bodies, are likely questions that will continue to be raised in the professional regulation context. Shifting the tone of reprimands from that of shame or humiliation to instead one of rehabilitation and prevention may strike an appropriate balance of prioritizing public interest and safety, and minimizing harm to the registrant.
[1] College of Physicians and Surgeons of Ontario v. Thomas, 2024 OPSDT 8, para 17 [Thomas], about which we reported here.
[2] See for example: College of Physicians and Surgeons of Ontario v. Mercado, 2024 ONPSDT 7; College of Physicians and Surgeons of Ontario v. Bahrami, 2024 ONPSDT 10; and College of Physicians and Surgeons of Ontario v. Kozerawski, 2024 ONPSDT 13.
[3] Thomas, at para 17.
[4] Hadwen, at para. 24.
[5] Ibid. at para. 25.
[6] Ibid. at para. 27.
[7] Ibid. at para. 27.