Conduct Unbecoming

What do the following scenarios have in common? A physician has a meltdown at a school concert and acts in a hostile and aggressive manner towards other attendees, including in front of children. A teacher has a dispute with their own children and fires a gun over their heads. A psychologist posts demeaning and degrading comments about individuals and groups on social media. A nurse posts criticisms on social media about the insensitive treatment of an elderly relative at a facility. See: Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821 (CanLII),; Fountain v. British Columbia College of Teachers, 2013 BCSC 773 (CanLII),; Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 (CanLII),; Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112 (CanLII),

In two of those cases the regulators’ actions (discipline proceedings in Rathe, remedial training in Peterson) was upheld by the courts. In the other two matters the courts set aside the regulators’ decision. The Saskatchewan Court of Appeal has offered further guidance as to when private conduct can attract regulatory scrutiny in The College of Physicians and Surgeons of Saskatchewan v Leontowicz, 2023 SKCA 110 (CanLII), The facts, accepted by the Court, were that a fourth-year medical student engaged in sexual intercourse with a woman without a condom, against her expressed wishes, and hit her several times, again without her consent, so as to leave bruises. He had just met the woman through a dating app and she was not his patient. The primary issue was whether this behaviour constituted conduct unbecoming so as to support the discipline finding made against him.

The lower Court set aside the finding for three reasons. The detailed description of sexual abuse in the regulator’s by-laws referred to sexual behaviour with patients, not others. The Court was also concerned about the criminal language used by the discipline tribunal. In addition, the Court found no evidence that the conduct “would generate reputational concerns for either him or the medical profession at large”.

The Court of Appeal characterized this analysis as a legal error. The statutory ability for the regulator to discipline its members for conduct unbecoming was not limited to the descriptions of professional misconduct in the by-laws. The use of language such as “sexual assault” is not restricted to the criminal sphere and the discipline tribunal did not make a finding of criminal liability. In addition, the Court of Appeal stated that in these circumstances it was open to the discipline tribunal to make inferences of reputational harm.

The Court of Appeal focussed on whether there was a nexus between the physician’s conduct in his private life and the practice of the profession. Quoting Strom, the Court said:

As clarified in Strom, off-duty conduct may be professional misconduct “if there is a sufficient nexus or relationship of the appropriate kind between the personal conduct and the profession to engage the regulator’s obligation to promote and protect the public interest” (at para 89). The test is whether the impugned conduct was such that it would have a “sufficiently negative impact on the ability of the professional to carry out their professional duties or on the profession to constitute misconduct” (at para 89)….

Strom went on to identify three competing interests at stake in connection with fair and effective self-governance: those of the public, those of the profession at large and those of the member. Balancing these interests requires a professional disciplinary body to examine the circumstances and have regard for the “full panoply of contextual factors particular to an individual case before making that determination” ….

The Court of Appeal stated that the contextual analysis should include the following:

  • The nature of the profession,
  • The nature of the private misconduct,
  • The relationship between the private misconduct to the work of the profession and the characteristics necessary to practise the profession (e.g., whether the misconduct impaired the person’s ability to practise the profession),
  • Whether the person is identified as a member of the profession in engaging in the misconduct, and
  • The degree of controversy created by the conduct.

The Court of Appeal concluded that it was reasonable for the discipline tribunal to decide that the private misconduct affected the physician’s ability to practise the profession. The Court agreed that a core concept of the medical profession was to first do no harm, which required patients, including women who might have to disrobe, to trust the physician to place their health before the physician’s personal wishes. The Court was also concerned that the physician might not have a strong sense of the need to obtain informed consent in the medical context in light of his misconduct. Interestingly, the Court did not mention the impact of the conduct on the physician’s ability to treat women who had experienced sexual violence.

However, the Court returned the matter to the regulator to re-address sanction. It noted that the indefinite suspension ordered by the discipline tribunal did not take into account the lengthy disruption of the physician’s career resulting from these events. The Court also noted that the discipline tribunal had improperly treated the physician’s decision to defend the allegations and failure to acknowledge the allegations as an aggravating factor on sanction. In addition, the Court said there was a failure to recognize the remedial efforts that had already been made by the physician.

The role of regulators in scrutinizing the private lives of registrants will undoubtedly continue to be difficult to define. However, examining all of the circumstances surrounding the conduct and assessing how it influences the practice of the profession (or the reputation of the profession) will make such determinations more consistent and defensible.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.



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