Adding Allegations Mid-Hearing

It is a fundamental principle that a practitioner should know the allegations (and case) they will meet before their discipline hearing starts. Some exceptions exist to permit the regulator to amend the allegations where new information arises during the hearing (e.g., slight discrepancies about the date of events), so long as no unfairness is created. The goal is to address the substance of the concerns without becoming overly technical.

In Alsaadi v Alberta College of Pharmacy, 2021 ABCA 313 (CanLII), https://canlii.ca/t/jj4bh, a pharmacist was disciplined for accessing confidential electronic records for no health care reason; he viewed some 700 patient records out of “curiosity”. There was another allegation about failing to cooperate fully and honestly with the investigation. During the hearing the practitioner gave evidence that may have been inconsistent with both statements he had made during the investigation and in his earlier testimony. For example, the practitioner suggested during the hearing that a friend may have accessed his computer without his knowledge, which had not been disclosed in statements made during the investigation and may have conflicted with admissions made during the hearing itself. The regulator then provided further “particulars” of the allegation to cooperate fully and honestly related to the statements made during the hearing.

The majority of the Court found that the new allegations were not additional particulars but, rather, amounted to entirely new allegations. Permitting the new allegations to be added during the hearing was unfair:

First, doing so treats the new misconduct as aggravations of the initial allegations. There is no logic to doing so. They are discrete events, on their face. Second, such an approach conscripts the defending professional into immediately justifying the conduct which, as said, may have a non-inculpatory explanation. The approach turns the hearing process and the burden of proof completely around. Third, such an approach in effect makes the hearing tribunal, which should be acting as an impartial adjudicator, both a prosecutor and an eyewitness.

The Court also found the sanction, including a three-year suspension, over-emphasized general deterrence and denunciation and was disproportionate to both the conduct and the outcome of other cases. The Court also noted that discipline panels should consider the collateral consequences experienced by the practitioner. In this case he had been subjected to a period of house arrest for related offence charges, had lost employment, and had already ceased practising for three years. The Court also found that a condition of direct supervision for 500 hours was unrelated to the conduct as there was no concern about the competence of the practitioner; indirect supervision of his access to computerized records adequately protected the public. The sanction was reduced to a suspension of six months, indirect supervision, and a reduced fine of just over $10,000 among other things. The Court also reduced the costs payable by the practitioner to the regulator.

While amending the allegations mid-hearing is permissible in some circumstances, fairness to the practitioner must always be considered.

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