What to know about the Discipline Tribunal and Criminal Proceedings

What happened?

Imagine: A physician receives a compliant before the College of Physicians and Surgeons of Ontario (“CPSO”). The allegations are bad and the doctor does not have a good defence. He’s told: “if you fight this and lose, your licence to practice will be revoked. But if you make a deal with the CPSO you’re only looking at a suspension.” The doctor is concerned about a plea deal – what if the patient also files a lawsuit? He is advised that what he admits to before the Discipline Tribunal cannot be used against him in civil court. The doctor is persuaded and he enters into a plea deal – otherwise referred to as an Agreed Statement of Facts and a Joint Submission on Penalty.

But then the unthinkable happens: criminal charges are subsequently laid. Everything the doctor admitted to before the Discipline Tribunal is admissible in the criminal proceeding.

What does this mean?

Generally, the record of a discipline hearing is not admissible in civil court – although there have been some exceptions (an article for another time). This is provided for under section 36(3) of the Regulated Health Professions Act (“RHPA”):

Evidence in civil proceedings

36 (3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

However, this provision does not apply to criminal proceedings. Why? Because this provision is contained within the RHPA – which is provincial legislation.

The Criminal Code, under which all criminal proceedings are brought, is federal. A criminal proceeding is not bound by the legislation of Ontario. In other words: the admissibility of evidence in a criminal case is not bound by the RHPA.

When your license to practice is on the line, you might feel compelled to enter a plea if it means facing a shorter suspension or avoiding revocation. However, if the allegations could be captured under the Criminal Code – such as sexual assault or fraud, to name only a few –  losing your license to practice will no longer be your worst nightmare. Your own admission before the Discipline Tribunal could then be used against you in the criminal proceeding.

The bottom line

Physicians are often advised that if they agree to a plea deal with the CPSO the penalty will be less than what it would be if they fought the charges at the Discipline Tribunal.  That can be true in some cases – it largely depends on the facts of the case and the available evidence. However, if the facts could potentially amount to criminal charges, you must weigh your options very carefully – and dissect the language of any proposed plea – before agreeing to a deal with the CPSO. Even if you are prepared to enter a plea to relinquish your licence to practice, there is an important distinction between admitting and pleading “no contest”.

Brooke L. Shekter is the managing partner of Lloyd Shekter Health Law.