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How should a regulator respond when fresh concerns arise about a registrant’s conduct that are quite similar to misconduct that has already resulted in disciplinary action? Two regulators took quite different approaches that reviewing courts found to be appropriate, albeit in the differing circumstances.

In Dr Vu v College of Physicians & Surgeons of Alberta, 2023 ABCA 377 (CanLII), a physician was appealing a finding that they had sexually abused their client. An allegation of sexual abuse of another patient was coming up for a hearing. In the meantime, the physician’s registration was suspended. The physician sought to stay (i.e., pause) the second hearing until the first appeal was resolved, indicating that if the first finding was upheld, they might not contest the second allegation as their registration would already be revoked. The Court declined to stay the second hearing, in part on jurisdictional grounds, but also said:

While it is true that risk to the public is mitigated during his suspension, the public has a strong interest in the CPSA’s investigation and adjudication of patient complaints. Where a stay seeks to stop statutory actors from carrying out their duties, a very important public interest weighs heavily in favour of allowing those actors to carry out their statutory mandates…. Complainants also have a strong interest in the timely adjudication of their complaints.

In contrast, a different approach was taken in El Raheb v. Ontario College of Pharmacists, 2023 ONSC 7065 (CanLII). A pharmacist’s registration was suspended for 18 months and had long-term restrictions on their practice after having been found to engage in false and misleading billing and record keeping. New concerns of a similar nature arose, but at different pharmacies, for larger amounts of money, and at different periods of time. The screening committee chose to take no further action, other than to issue a caution that would appear on the public register, given the result of the earlier discipline hearing. The pharmacist challenged the caution as being punitive given the screening committee’s acceptance of the previous discipline decision as addressing the concerns.

Again, the Court upheld the regulator’s decision. It said: “The purpose of a caution is to protect the public by taking steps to ensure that the conduct that gave rise to the caution does not occur again.” Given the differences between the two cases, the Court said: “In the face of this reality the ICRC decided that, while the penalty imposed in the first proceeding was sufficient punishment, the public interest demanded that the Applicant be cautioned about the seriousness of the conduct at issue in this proceeding.”

The difference in approaches by the two regulators likely reflects the circumstances of each case including the existence of a specific complainant in Dr. Vu’s case. Other regulatory approaches would also be conceivable, including taking no action, restitution agreements, or seeking an acknowledgement and undertaking from the registrant that includes admission of facts, an apology, additional monitoring/ supervision, and publication.

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