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Dismissed charges not evidence of misconduct for health professionals

Health professionals with charges before the courts need the assistance of a criminal lawyer, but they should also access the legal services of counsel who handle regulatory matters to deal with disciplinary or other proceedings arising from such allegations, Toronto health lawyer Lonny Rosen tells AdvocateDaily.com.

Rosen, a partner with Rosen Sunshine LLP, says a case that went before the Health Professions Appeal and Review Board (HPARB) highlights the type of regulatory proceedings that can occur as a result of criminal charges being laid against a health professional — and that they don't always go away after an acquittal.

In this matter, the registration committee directed the Registrar of Ontario’s College of Physicians and Surgeons to refuse to issue a certificate to a physician after he was charged with drugging and sexually assaulting two women, says the HPARB decision. The certificate of registration was to authorize the physician to continue postgraduate education in Ontario, it says.  

After the criminal charges were dismissed, and allegations of professional misconduct — that were referred to the College’s discipline committee — were withdrawn, the doctor successfully challenged the determination by the registration committee that he did not meet the criteria for registration. HPARB found the registration committee’s conclusion to not register the doctor to be unreasonable, says its decision. 

Rosen says the matter is instructive and specifically shows that for an application for registration to be refused on the grounds that the applicant doesn’t meet the non-exemptible standard, there has to be more than just a suspicion of wrongdoing. 

“There has to be evidence or a finding that the health professional engaged in conduct that gives grounds to believe that he won’t practise medicine with decency, integrity and honesty, and in accordance with the law,” he says. 

The non-exemptible standard, as noted in the HPARB decision, refers to how: “an applicant’s past and present conduct afford reasonable grounds for belief that the applicant will practise medicine with decency, integrity and honesty and in accordance with the law; has sufficient knowledge, skill and judgment to engage in the kind of medical practice authorized by the certificate.”

Rosen explains that when an individual applies for registration and there’s no question of whether they meet the criteria, the registrar will approve their application and they will become a member of the College.

“And that’s what happens in the vast majority of cases,” he says.

But if there’s some question about whether they have the educational requirements or experience for someone to be a practising member, or whether they meet the non-exemptible standard, the application is referred to the registration committee, as it was in this matter.

The registrar, in this case, felt that the applicant’s criminal charges and pending disciplinary proceedings before the College afforded grounds to believe that the applicant didn’t meet the non-exemptible standard, Rosen says. 

“As a result, the application was referred to the registration committee, which noted that in College disciplinary proceedings, the standard of proof is on a balance of probabilities — unlike in criminal proceedings where’s it’s beyond a reasonable doubt,” he says.

“On a balance of probabilities, the committee found that despite the fact that the physician was acquitted in the criminal proceeding there was evidence that he had engaged in improper conduct, which gave grounds to believe that he wouldn’t practise medicine with decency, integrity, honesty and in accordance with the law.”

Rosen notes the disciplinary proceedings didn’t go forward because the complainants declined to testify.

“He was acquitted of the criminal charges and the allegations of professional misconduct were withdrawn at the discipline committee hearing. Therefore, the argument at HPARB was that there was no evidence to believe that he wouldn’t practise medicine with decency, integrity, honesty and in accordance with the law,” he says. 

Rosen also points to how the physician submitted evidence to support that he didn’t engage in any criminal professional misconduct.

"On that basis, the board overturned the decision of the registration committee and substituted its own, directing the registrar to issue a certificate of registration to the physician," he says. 

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