Steinecke Maciura LeBlanc Barristers & Solicitors


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	Public Reprimands
	by Richard Steinecke
	December 2008 - No. 130

	In late October the Federation of Health Regulatory Colleges of Ontario hosted a panel discussion entitled: “Reprimands: Private Peer Process or Public Spectacle” that considered the move by some regulators to conduct their reprimands in public. Reprimands are a disciplinary sanction. They are not purely educational action administered by many complaints and investigation programs, like cautions, advice or even admonishments. Rather, they occur only after a disciplinary hearing has concluded that the member has engaged in professional misconduct. The purpose of a reprimand includes the education of the member about their conduct and about professional and public expectations. As such there is generally a strong “peer to peer” component to them (which can vary from the encouraging and supportive to the denunciatory and reproving). Some view reprimands as having an educational value for the profession as a whole. Often the reprimand is the first point in the discipline process where the tribunal can candidly offer its own views of the matter. Reprimands have traditionally come in a number of forms. Occasionally the chair of the tribunal simply states “you are hereby reprimanded”. More typically, the reprimand has involved the presentation of the tribunal’s views of the member’s conduct, its seriousness and consequences to the public and the profession, sometimes some tips for avoiding such conduct in the future and an expression of confidence that the member will not repeat the conduct (or a threat of what will happen if the conduct is repeated where the tribunal is not so confident). Rarely is the member given an extensive opportunity to respond to the reprimand. Traditionally, reprimands have been administered in private. In fact most tribunals likely still administer private reprimands. Only the tribunal and the member are present. Even the member’s lawyer, the tribunal’s lawyer and the regulator’s lawyer are excluded. Generally no record is kept of the content of the reprimand and the public record usually only shows the fact that a reprimand has been administered. Under this view of reprimands, they are not part of the hearing process but rather are part of the sanction itself. More recently some regulators have made the reprimand process public. Usually that means that the public is entitled to observe while the reprimand is administered. Sometimes it means that a transcript of the reprimand is available publicly as well. A few regulators go so far as to make the text of the reprimand part of the public decision of the tribunal. One of the panellists, Dr. Marc Gabel, is the co-chair of the Discipline Committee of the College of Physicians and Surgeons of Ontario. He described the challenging process for that tribunal as it first considered the idea with trepidation to the point where it is now routinely implementing public reprimands. The main reason for the change was the recognition of the need for openness and transparency throughout the entire disciplinary process in order to promote public confidence in it. Even today many tribunal members sense the loss of the ability to provide confidential peer views to the member. Reprimands at the CPSO have become more formal. However, reprimands can now achieve broader purposes. Paul Cavalluzzo, the second panellist, is a senior lawyer who frequently represents members facing discipline. In his experience, members facing discipline often find the experience traumatizing and humiliating. Administering reprimands in public only amplifies those emotions. In fact, some members undergoing a reprimand simply endure it or even become almost catatonic. As such, the public administration of reprimands may impair one of its goals, the education of the member. However, Mr. Cavalluzzo believes that most defence counsel accept the important transparency function of public reprimands. One question that garnered significant interest in the audience was whether defence counsel would use inappropriate statements administered in the course of a reprimand on appeal. Mr. Cavalluzzo indicated that defence counsel have an obligation to use all available information to support their grounds of appeal. The implication is that tribunals should take care in crafting the content of reprimands and should, likely, receive independent legal advice on it. The third presenter was Kirk Makin, the legal reporter for the Globe and Mail. Mr. Makin discussed the kinds of issues that are of interest to the media in regulatory proceedings (e.g., any lack of openness, the fairness of the process, curious allegations, high profile individuals, and sometimes even persistent and articulate inquirers). He also outlined some of the basic steps regulators could take to assist the media (e.g., provide a contact person to respond to inquiries, offer background information about the process). Mr. Makin suggested that public interest institutions like regulatory bodies need to be as transparent as possible in their processes. Private reprimands tend to invite suspicion. There was some discussion as to how far the trend toward openness would continue. Would television cameras be required in the hearing room? Is disclosure of the handling of complaints that did not result in disciplinary action the next target for openness? No consensus was reached as to where the trend would end beyond the view that both of those initiatives would only occur in rare circumstances in the foreseeable future.



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