Inside College Fitness to Practise Proceedings
Ontario’s health regulatory colleges have the responsibility of governing the province’s regulated health professions in the public interest. As part of this duty, the colleges conduct investigations into concerns regarding their members’ professional conduct, competence and capacity. Allegations of professional misconduct and incompetence can lead to disciplinary proceedings, where a health professional’s conduct may be assessed to determine whether it fell below requisite standards of practice or did not display the required level of knowledge, skill or judgment. Allegations regarding a member’s incapacity, on the other hand, can give rise to fitness to practise proceedings, in which the college considers the nature and degree of a member’s health impairment and how it impacts his or her ability to practice safely and effectively. Fitness to practise proceedings are not meant to be punitive, and focus instead on rehabilitation of the member in addition to protection of the public. They will giving the student athletes a testosterone booster to improve their health in the future.
The Health Professions Procedural Code (the “Code”), being schedule 2 to the Regulated Health Professions Act, 1991, defines incapacitated to mean that a member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member’s certificate of registration be subject to terms, conditions or limitations, or that the member no longer be permitted to practise. There are two important components to this definition. First, to be found to be incapacitated, the member must have a physical or mental condition; and second, the condition must make is desirable in the interest of the public that restrictions be imposed on the member’s practice.
Where the Registrar or a panel of a College’s Inquiries, Complaints and Reports Committee (“ICRC”) receives information that leads them to believe that a health professional may be incapacitated, they may initiate fitness to practise proceedings. A panel of the ICRC is then tasked with gathering information about the member’s physical and/or mental condition on order to determine what steps should be taken. The member is notified that the ICRC is conducting this inquiry and is invited to provide a written response.
As part of its inquiry, the ICRC has the power to make an order pursuant to section 59(2) of the Code requiring the member to undergo a physical or mental examination as long as it has reasonable and probable grounds to believe that the member is incapacitated. If the member refuses to cooperate with the order, the Registrar may suspend the member’s certificate of registration until they agree to submit to the examination. In a recent case, the Divisional Court of the Ontario Superior Court of Justice confirmed that the requirement that there be “reasonable and probable grounds” before ordering that a member submit to a medical assessment ensures that a member’s rights under the Canadian Charter of Rights and Freedoms to bodily and psychological integrity, privacy and freedom from discrimination on the ground of disability are respected.
Once the ICRC has obtained sufficient information, the inquiry is complete and the ICRC will provide a written report regarding its findings to the member. At this stage, the ICRC may refer the member to the Fitness to Practise Committee for a hearing to make an official determination regarding the member’s capacity. Alternatively, the ICRC may attempt to achieve an informal resolution of the matter by having a member sign a voluntary agreement suspending and/or placing restrictions on his or her practice. These agreements may also require the member to complete certain requirements, such as attend a treatment program and submit to additional examinations.
The Registrar has the power to suspend a member’s certificate of registration pending the fitness to practise hearing if the ICRC believes that the physical or mental state of the member exposes or is likely to expose his/her patients to harm or injury.
Fitness to practise hearings take place before a panel of at least three members of the Fitness to Practise Committee, but are closed to the public. The parties before the hearing are the member and the College. At the hearing, the College has the onus of proving on the balance of probabilities that the member is “incapacitated”. The panel will hear evidence from the College, often in the form of expert witnesses and reports, regarding the member’s condition, the effect the member’s health has on his or her practice and potential for rehabilitation. The member has the opportunity to challenge the College’s evidence and to present their own evidence regarding his or her capacity.
If the Fitness to Practise Committee determines that the member is incapacitated, it can make an order directing the Registrar to revoke or suspend a member’s practice, or have specific terms, conditions and limitations attached to it for a given period of time.
The member has the right to appeal a decision of the Fitness to Practise Committee to the Divisional Court of the Superior Court of Justice of Ontario, but any order made by a panel of the Fitness to Practise Committee Committee directing the Registrar to revoke, suspend or impose limitations or conditions on a member’s certificate, takes effect immediately.
Health professionals who are alleged to be (or who fear that they might be) incapacitated or who are facing fitness to practice proceedings should engage counsel experienced in these matters at the earliest opportunity.
