Steinecke Maciura LeBlanc Barristers & Solicitors


	Newsletters
	Grey Areas


	Public Interest Mandate of Discipline: A Quaint Notion or the Real Deal?
	by Richard Steinecke
	October 2006 - No. 104

	The above topic was discussed at an evening presentation sponsored by the Federation of Health Regulatory Colleges of Ontario on October 18, 2006. The presenters were The Honourable Justice John Evans, (of the Federal Court of Appeal) and Professor Joan Gilmour (of Osgoode Hall Law School). Lawyer Brian Gover moderated the discussion. Both speakers concurred that the only reason for professional self-regulation was as a means to achieve the public interest. Professor Gilmour stated that public interest discipline processes “better be the real deal”. Justice Evans asserted that it had to be “the only deal”. The public interest should permeate every aspect of professional self-regulation. As the discipline process was often the most visible face of professional regulation, it had to explicitly demonstrate the public interest was being served. Justice Evans identified two essential elements to a public interest discipline process: 1. Competence – in finding of facts, applying the law, exercising wise discretion and ensuring a timely process; and 2. Fair process – an orderly, public and fair hearing by an open-minded and impartial tribunal. Justice Evans reviewed the legislation that applies to most disciplinary processes noting that they establish an adversarial proceeding. The panel is passive (in that it does not obtain evidence by itself) and impartial. Panel members have no prior involvement in the investigation of the matter and are selected by the chair of the Committee, not the prosecution. Most panels have lay representation. Panel members were not to communicate about the issues outside of the hearing itself. He emphasized the need to adopt these sorts of safeguards scrupulously to counter the perception that the regulator is both the prosecutor and the judge. Professor Gilmour picked up on this theme reminding the audience that self-regulation was not the only option available for regulating a profession. For example, in New Zealand the discipline process is separated from the complaints and investigation process. Complaints are investigated by a government appointed official (a Commissioner). The Commissioner takes a “learning, not lynching” approach. Most concerns result in educational measures suggested by the Commissioner and implemented by the professional Council for each profession. In rare cases serious concerns are referred to the Director of Prosecutions who, if he or she believes there is sufficient evidence to prove the allegations, prosecutes the matter before the Discipline Committee. In addition, the professional Councils operate quality assurance programs. Professor Gilmour noted that, surprisingly, practitioners under the New Zealand system feel just as beleaguered as practitioners in Canada. The United Kingdom restructured its system for professional regulation when public confidence in self-regulation was lost after to a number of very public scandals. The professional regulator investigates major concerns. However, discipline hearings are heard by an independent tribunal. The tribunal consists of three people: a lawyer, a member of the profession and a layperson. In addition, other organizations with a public safety mandate and the health insurance system itself have a role in dealing with general practice concerns. Both Professor Gilmour and Justice Evans supported the concept of having lay representatives on discipline panels. While both professional and public panel members have the same public interest mandate, their differing perspectives assist in meeting these goals. Professional members have a valuable expertise, but this can sometimes lead to tunnel vision. Having public members may help the panel as a whole to see the broader picture. Public members may also counter the feeling that might sometimes creep in that “there, but for the grace of God, go I”. Public representation on panels also provides an important symbolic message that self-regulation is not a closed shop. Public members should not, however, view themselves as client advocates. Justice Evans saw the role of independent legal counsel (ILC) as helping panels meet their public interest mandate. They can foster the independence of the tribunal by their educational and advisory role. ILC can help ensure that a fair process is followed. In addition, due to the “rights revolution” in recent years, including the introduction of the Canadian Charter of Rights and Freedoms, ILC can assist panels in dealing with the very difficult legal issues they sometimes face. Professor Gilmour also commented on the “accountability revolution” that accompanied the “rights revolution”. Discipline tribunals need to hold practitioners accountable for their professional conduct. At the same time, the discipline tribunals are, themselves, accountable for how they conduct their processes. Providing written reasons is a key element in achieving the accountability of discipline panels. Justice Evans identified the following roles of reasons: ·Giving reasons, by itself, shows openness by providing a window into the only closed part of the hearing process, the panel’s deliberations. ·Reasons demonstrate that the panel thought through the issues. If reasons “don’t write”, that may be an indication that the decision is wrong. Reasons affect the quality of decisions. ·Reasons demonstrate fairness by proving that the panel heard and understood the evidence and arguments of the parties. ·Reasons ensure accountability as they form the basis upon which a court will review the panel’s decision. Professor Gilmour concluded by saying that self-regulation will only continue to exist if it generates public confidence. If the public no longer believes that self-regulation does the best job, the model will be changed. Public confidence requires that the process not only be fair, but that it be seen to be fair.



	Subscribe to this newsletter

	FOR MORE INFORMATION This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. If you are not receiving a copy and would like one, please contact: Richard Steinecke, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4, Telephone: 416-626-6897 Facsimile: 416-593-7867, E-Mail: rsteinecke@sml-law.com WANT TO REPRINT AN ARTICLE A number of readers have asked to reprint articles in their own newsletters. Our policy is that readers may reprint an article as long as credit is given to both the newsletter and the firm. Please send us a copy of the issue of the newsletter which contains a reprint from Grey Areas.