Discipline committees can appoint counsel to assist in certain cases

By Staff

Self-represented parties are a fact of life for most regulatory tribunals, but there are circumstances where legal counsel can be appointed to assist, to the benefit of everyone involved, Toronto health lawyer Lonny Rosen tells

Rosen, partner with Rosen Sunshine LLP, says there are about 30 self-regulating health-care professional bodies and dozens of other regulators, all of which have disciplinary functions. He says that while registrants alleged to have engaged in professional misconduct are always better off being represented by experienced counsel, the reality is that individuals facing discipline proceedings are often self-represented.

"Some professionals may not be able to afford or want to pay for a lawyer for the entire tribunal hearing. And this can make the hearing more challenging for all involved – the registrant, obviously, but also the prosecutor, and the members of the discipline committee adjudicating the hearing," Rosen says.

"But, there are other ways a lawyer can assist the registrant, with benefits flowing to all participants.”

One such way is by requesting that the panel appoint a lawyer as amicus curiae — literally a friend of the court. This is becoming an increasingly utilized option because a growing number of regulated professionals are facing discipline proceedings without legal representation, choosing instead to self-represent, he says.

Should a panel decide to appoint an amicus, it's at their discretion as to what role that lawyer will play. They can be asked to — among other things —cross-examine witnesses, make submissions on particular issues, or help the panel communicate with the registrant, Rosen adds.

Amicus are most frequently appointed in cases where a registrant (or member) of a regulatory body is facing allegations of sexual abuse, and is not represented by counsel, he says.

"Though the registrant has the right to cross-examine all witnesses called by the regulator, including the complainant, regulators are loath to permit complainants to be cross-examined by the very individual whom they allege has sexually abused them, and in some situations the legislation or procedural rules actively prohibit this," Rosen says.

He says that the appointment of amicus prevents the complainant from having to experience being cross-examined by their alleged abuser, and permits the registrant the assistance of counsel in challenging the regulator’s evidence.

“This helps everyone because the complainant’s testimony has to be tested by cross-examination. But, it’s very problematic, and in most cases inappropriate, for the registrant to conduct the cross. It helps the tribunal and the witness, and the evidence is better tested by cross-examination from a friend of the court,” Rosen says. “Counsel can even be appointed to assist the registrant in order to prevent delays and to ensure the registrant receives a fair hearing.”

Counsel is not hired by the individual facing allegations of misconduct and has no responsibility other than to assist the panel as it sees fit. They are compensated by the regulator, he says.

A tribunal panel can also decide to provide counsel for a witness, to assist them for matters such as interviews, in responding to a motion, or to provide them with advice prior to a hearing, especially in cases of alleged sexual abuse, Rosen adds.

It’s something that's been discussed in the criminal court system, but thus far Ontario programs only provide legal support prior to trial, he says, adding that several health colleges have recently provided counsel for witnesses in hearings dealing with sexual abuse allegations.

"In these cases, even if the regulator facilitates the witness’ engagement of counsel and covers the cost of same, the solicitor-client relationship is between counsel and the witness, and all of their communications are protected by privilege," Rosen says.

“This kind of engagement is particularly valuable in connection with matters like a third-party records motion,” he says.

“If the witness has received some kind of counselling or treatment, the registrant may seek to access the records. Courts and tribunals have imposed a strict regime such that the witness’s personal health information cannot be accessed lightly. There has to be a compelling evidentiary reason,” Rosen says.

There are many scenarios where a lawyer, other than one hired by the registrant, can be of assistance in a discipline proceeding, he says.

"The decision to appoint amicus curiae is made by the tribunal — such as the discipline committee — often on the recommendation of the parties or their counsel, and it is for the tribunal to determine the scope of amicus’ role," Rosen says. "Determining whether to appoint counsel to assist a witness, and for what purposes, is within the discretion of the regulator, which will seek to balance the competing interests of cost, support to complainant and fairness to member."

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