Undertakings and Discipline: penalties and proportionality for multiple acts

Where a regulator seeks to address a complaint involving multiple wrongs, and the complaint involves conduct partially addressed by the outcome of a previous, related complaint, how is an inquiry committee or a discipline committee (e.g., one seeking to offer a consensual penalty, or to make a penalty order) to decide an appropriate penalty?

In both cases, the penalty offered or ordered should be a reasonable penalty, meaning one proportional to the overall culpability of the offending professional. In the case of a penalty order by a discipline panel, proportionality is required by law. In the case of a consensual penalty offered by an inquiry committee, proportionality is highly desirable because a disproportionate offer is pointless, and simply ensures a hearing by foreclosing any prospect of settlement.

Proportionality means a panel should be wary of finding individual wrongs and imposing consecutive sentences for each wrong (e.g., a three-month suspension for each event X, Y and Z, for a total of nine months). Such a sentence may offend the principle of totality or proportionality if, for example, the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences.

An example of a disproportionate sentence (e.g., of 42 months) being reduced on appeal (e.g., to a suspended sentence of 18 months) is illustrated in Matheson v. College of Physicians and Surgeons of P.E.I., 2010 PECA 5 (for a link, click here).

In that case, a physician was over-prescribing pain medications for multiple patients, through multiple pharmacies, and picking them up on behalf of those patients. As it turns out, the physician was addicted to narcotic pain medication. In fact, he was prescribing excess pain medication to two patients, Mr. C and Mr. K, and acquiring portions of those medications from the patients for his own use, and for the use of another addict.

In 2003, the Prince Edward Island Pharmacy Board contacted the College about the physician’s practice of prescribing large quantities of narcotic pain medication from multiple pharmacies, which the physician would pick up on behalf of patients whom the pharmacies could not reach. An investigation revealed that the physician’s prescription practice fell below standards in 30 different instances. The physician was ordered to cease prescribing pain medications until he received further education on prescribing pain medications, and fined $10,000.

In 2005, Dr. B made a complaint relating to a former patient of the physician, Mr. C, concerning the physician getting Mr. C to have previous pain medication prescriptions filled, and giving some tablets to the physician. During the investigation, the physician admitted an addiction. A committee recommended, and the College’s Council ordered, the physician be suspended indefinitely due to his addiction. In early 2006, the Board found the physician guilty of professional misconduct, and suspended him for a further six months, and fined him $7,000, with the suspension to continue until the physician satisfied the Council he was no longer addicted, and with his practice to be monitored upon his return [29-30]. In late 2006 the physician returned to practice.

In early 2007, Mr. K filed a complaint in writing. Mr. K had previously advised the College orally, in 2005, that the physician prescribed medications for Mr. K and then purchased some of those medications back from Mr. K, for himself and for Witness B. After the physician lost is prescribing powers, Mr. K obtained pain medications from other physicians, and continued to supply the physician.

The Committee made six separate findings of professional misconduct:

(1) Engaging in the practice of medicine while impaired by drugs and alcohol.

(2) Diverting narcotics for his personal use.

(3) Diverting narcotics to witness B.

(4) Failing to practice to the standard of appropriate medical care.

(5) The violation of professional patient-physician boundaries.

(6) The provision of non-narcotic prescriptions to witness B.

The Committee recommended, and the Council imposed, consecutive sentences for each finding of 12 months, 12 months, 12 months, 6 months, a reprimand, and a fine of $15,000, for a total of 42 months of suspension.

According to the judgment of the majority (per Justice McQuaid, Justice Murphy concurring), although the College could order additional sanctions, the penalty was unreasonable.

Firstly, the Committee erred by treating each particular of professional misconduct as a separate offence and imposing suspensions accordingly. Although the different acts could each constitute professional misconduct, the specific acts were not separate offences. “[123] There is only one offence provided for in the Medical Act.  It is ‘professional misconduct.’ […] [125] The correct procedure is to make one finding of professional misconduct having regard to the particulars which were proven and then consider the imposition of sanctions…. […]While the nature and scope of the particulars of professional misconduct would have an impact on the overall extent of the sanctions, to consider each particular as a separate offence and then impose consecutive suspensions as part of the sanctions could result in a total sanction which was out of proportion to the particulars of the conduct.”

Secondly, even if the Committee did not err in treating each particular as a separate offence, the Committee erred in imposing sanctions:

[130] “As in criminal law, sanctions imposed for acts of professional misconduct, particularly a sanction which deprives the professional of the right to engage in the practice of his or her profession, must be proportional to the overall culpability of the offending professional.” (emphasis added)

[131] “When sentences, or in this case suspensions, are imposed, the principle of proportionality is honored by the application of the totality principle.  Applied to the context of this appeal, this principle requires that the disciplinary body that imposes consecutive suspensions must ensure that the cumulative effect of those suspensions, combined with other sanctions do not exceed the overall culpability of the offending professional.  Also in R. v. M. (C.A.), supra [(1995), 105 C.C.C. (3d) 327 (SCC)] at para. 42, Lamer C.J.C. stated:

[42]        In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the ‘totality principle’. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

[…]

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate ‘just and appropriate’. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects. (emphasis added)

The court found the 42 month suspension to be disproportionate [134]. In particular, the court found that a 3.5 year suspension “[147] … is more severe than an outright revocation of the member’s licence because, pursuant to s-s.38(2) of the Medical Act, a member whose licence has been revoked may apply to be reinstated one year after the revocation.  No such remedy is available to a member whose licence has been suspended. … [148] …Viewed from this perspective alone, the suspensions imposed on Dr. Matheson are disproportionate to his misconduct.”

Furthermore, with respect to mitigating factors, the physician had returned to a monitored practice, through a rehabilitation process making additional sanction unnecessary to address specific deterrence: “[154] … A lengthy suspension from practice taking effect immediately would not, therefore, appear to be necessary to address specific deterrence.”

Accordingly, to give effect to the public interest in general deterrence, the Court of Appeal ordered a suspension of 18 months, but suspended the effective date of the suspension for the entire 18 month period, provided the physician continued to comply with certain conditions, as well as additional orders including a fine of $15,000 (payable by monthly instalments of $1,000), monitoring, and random drug testing.

Matheson v. College of Physicians and Surgeons of Prince Edward Island, 2010 PECA 5 (March 5, 2010).