Withdrawing an Undertaking to a Regulator

Can a practitioner withdraw a formal undertaking made to a regulator? That issue arose in Al-Naami v College of Physicians and Surgeons of Alberta, 2021 ABQB 549 (CanLII), https://canlii.ca/t/jh0tv. In that case, a pediatrician was charged with possession and transmission of child pornography. The regulator sought and obtained a formal undertaking from the practitioner to withdraw from practice until certain criteria had been met. The regulator’s investigation was put on hold pending the outcome of the criminal charges. Time passed. The practitioner experienced financial distress. The practitioner sought a revision to the undertaking permitting practice in the presence of chaperones. The regulator refused, in part because the practitioner would not consent to disclosure of the Crown’s evidence brief. The practitioner initiated steps to withdraw the undertaking and resume practice. The matter went to court.

The Court held that the undertaking is a formal promise to the regulator and could not be withdrawn unilaterally. However, the regulator was required to reconsider the ongoing appropriateness of the undertaking upon request:

As I suggested, reconsideration complements the use of undertakings. In my opinion, an entitlement to request reconsideration in light of changed circumstances is a reasonable adjunct to the undertaking procedure. The possibility of reconsideration based on changed circumstances or the changed appreciation of circumstances prevents an undertaking from becoming a “trap” and avoids deterring physicians from entering undertakings for fear of being trapped. Just as it makes practical sense from a disciplinary process perspective for physicians to accept interim resolutions by way of undertaking, so it makes sense for the College to reconsider interim resolutions. Without reconsideration, physicians would be better off to invite suspension or the imposition of conditions and to seek relief in the courts through a stay application.

The reconsideration should contain three components:

First, is the complaint supported by credible evidence or by a prima facie case? Second, do the circumstances of the complaint show that the physician represents a risk to the public? Third, given the risk of harm, what interim restrictions or conditions would be required to abate, manage, or mitigate that risk?

The Court found that the regulator had not conducted a proper reconsideration. While the first two components were supported in the circumstances, the regulator had not adequately considered whether a revision of the undertaking, short of a complete withdrawal from practice, would adequately protect the public.

The Court also found that the regulator could not take into account the practitioner’s failure to provide consent for disclosure of the Crown’s evidence brief because it was not directly related to the reconsideration criteria and that it was otherwise inappropriate.

The Court referred the matter back to the regulator to properly consider whether the undertaking should be modified and, if so, to determine the content of the replacement restrictions.

This case suggests that a regulator may have an obligation to consider a request to modify an undertaking. This case related to an interim undertaking. However, should this duty also apply to permanent undertakings, additional considerations might apply including ensuring that the regulator has sufficient evidence to assess risk should such a request be made.

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