Intimate Partner Violence is a Regulatory Issue

Many regulators view Intimate Partner Violence as a serious matter in which they have a significant role to play. For the medical profession, at least, the legal basis for this scrutiny was upheld by the Divisional Court of Ontario.

In Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769 (CanLII), https://canlii.ca/t/jp0xr a physician was found guilty of criminal offences related to the assault of his girlfriend. The Court granted him an absolute discharge. The regulator disciplined him solely on the basis of the criminal findings (i.e., the regulator did not re-prove the allegations) and imposed a three-month suspension, reprimand and ordered him to pay significant costs. The physician challenged the authority of the regulator to discipline him on the basis that this outcome frustrated the purpose of the absolute discharge he received in the criminal process. He also challenged the findings and sanction on the merits.

In a very detailed analysis, the Court found that the paramountcy of federal law did not prevent a provincial regulatory body from relying on a criminal court finding in a discipline proceeding. The Court found that the scope and purposes of criminal law and the related provisions related to an automatic records suspension (previously called a “pardon”) did not preclude a provincial regulator from relying on the underlying finding. There may be practical difficulties in the regulator obtaining the court evidence related to any findings after one year (for absolute discharges), but that did not affect the authority of the regulator to rely upon them. The purpose of the provision in the regulator’s enabling statute specifying that a criminal finding relevant to a practitioner’s suitability to practise constitutes professional misconduct was designed to avoid forcing regulators to relitigate the same facts.

The Court also rejected the physician’s assertion that the conduct was part of his private life and was not relevant to his suitability to practise the profession (i.e., that the regulator had no role policing the private morality of the practitioner).

It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members….

Discipline committees of regulated health professions in this province have consistently found that criminal findings of guilt of assault in a domestic violence context are relevant to a member’s suitability to practise because such conduct displays “poor judgment, lack of self-control, and capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values” characteristic of health professions ….

Some of these decisions also find that the conduct is relevant to a member’s suitability to practise based on the fact that in some medical specialities, physicians will be called on to treat victims of domestic violence, and must be sensitive to issues related to domestic violence; and also on the need for the profession to demonstrate to the public that acts of domestic violence by physicians, who stand in a position of trust towards patients, are not condoned by the profession.

The Court upheld the sanction including the three-month suspension. It affirmed that while a Panel cannot treat the vigorous defence of the allegations as an aggravating factor, it can treat such a defence as the lack of a mitigating factor that an early admission to the allegations would have afforded. The Court found that the three-month suspension was not clearly unfit despite the evidence of rehabilitation, given some of the aggravating factors of gender-based violence and the relevant principles with respect to penalty, including denunciation, maintaining public confidence in the profession, general deterrence, rehabilitation, and protection of the public.

The Court also found that the hearing panel could award costs for the entire hearing including preliminary motions heard before a differently constituted panel.

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