The doctor’s lawyer: The cost of your defence

Even an ultimate victory at the discipline tribunal does not undo the financial and reputational harm to the physician.

When a physician is prosecuted by the College of Physicians and Surgeons of Ontario (“College”) the physician pays, no matter what.

At a hearing, if the College wins, the physician must pay for their own legal costs as well as the College’s costs. If the physician wins, the College does not have to pay the physician’s costs. In other words, physicians pay for the privilege of defending themselves.

Under section 53 of the Health Professions Procedural Code, the College will only be required to pay all or part of the member’s legal costs if “the commencement of the proceedings was unwarranted.”

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For a discipline proceeding to be “unwarranted” is an enormously high legal burden. Since the College is mandated to protect the public, it can justify nearly anything it does, by relying on the “public interest.” Here’s how:

When the College receives a complaint, the matter first goes before the Inquires, Complaints, and Reports Committee (“ICRC”). The ICRC is a screening body. It has the power to dispose of complaints by taking actions such as ordering cautions, undertakings, or education plans. It also has the power to decide to take no action at all. But, case law has established that, the ICRC does not have the power to make findings of credibility.

A case where there were only two people in the room (the patient and the physician) is a classic case of credibility. This case will (almost always) be referred to the Discipline Tribunal because findings of credibility can only be determined at a hearing before the Tribunal, with witnesses and testimony.

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It is therefore relatively easy for the College to reasonably argue that the discipline proceeding was warranted. The argument goes something like: how could the College know the complaint was unwarranted until it was tried and tested at a Discipline Tribunal? After all, the ICRC can’t make findings of credibility!

This enables the College to refer physicians to the Discipline Tribunal without any fear of having to pay legal costs, even in cases where they have it wrong.

In the meantime, the physician is the subject of a referral to the Discipline Tribunal which is posted to their public register. This causes humiliation, stress, and very likely other professional consequences such as deferral or suspension of hospital privileges. Their ultimate victory at the Discipline Tribunal does not undo the harm that was caused to them, in the meantime.

What is seemingly missing from much of the analysis is that the public interest requirement includes fairness to the member. There is a case that was before the Law Society Tribunal, Appeal Division, in which the Chair articulated the following: “The public interest also includes considerations of fairness and justice to the licensee.(1)

The same principle applies to physicians: physicians are part of the public. They are entitled to procedural fairness and principles of natural justice when the College makes a decision that affects their lives. The problem is the cost.

Brooke Shekter is an associate with TTL Health Law.