Happy New Year! Have you made any resolutions? Maybe it’s finally going to be your year to run that marathon, build a meditation habit, or learn a new language. Whatever it is, the odds are good that you will fail within the first month – but that’s okay! Even if January isn’t a perfect month, there will still be plenty of time left in the year that to try for another streak at success. Second chances are important – for yourself, and for professionals who make an honest mistake. But how should regulators deal with “repeat offenders” who build a discipline history?
The principle of progressive discipline states that, where possible, it is preferable to treat successive instances of problematic conduct as being progressively more serious. Professionals should be given opportunity to remediate problematic conduct before the regulator turns to more onerous, restrictive, or punitive measures. Where a registrant shows unwillingness to change, it is then reasonable for the regulator to impose a stricter penalty. However, this is not an unbreakable rule, and must be balanced against the principle that every matter must be considered on the particular facts of each case. Regulators are given authority and responsibility for crafting consequences that fit the circumstances.
Sometimes, repeated misconduct does not necessarily result in more severe consequences. In Complainants v. College of Naturopathic Physicians of British Columbia (No. 1), 2022 BCHPRB 93, a registrant was the subject of a complaint about misrepresenting herself as a physician or doctor during a campaign for election as a municipal councillor in 2019 without clarifying that she was a naturopathic doctor. The matter was resolved by consent agreement, which included an undertaking not to repeat the conduct, as well as a reprimand, 3-day suspension, and $500 fine. The registrant then became the subject of a second complaint alleging that she had again failed to include the initials “ND” after her name on her clinic website and in advertising, on the website of a municipal political party, and while participating in a public virtual meeting of the municipal council in 2021. This complaint was again resolved by consent agreement, which included another undertaking not to repeat the conduct, as well as a reprimand, $500 fine for contravention of the terms of the previous consent order, and payment of $1,250 towards investigation costs. The Inquiry Committee was of the view that the registrant’s improper use of titles leading to the first consent order happened during a political campaign, which made it a “serious matter” necessitating publication as those incidents were highly likely to confuse or mislead the public, and evidence that at least one person had indeed been misled. The consent order signed in the second complaint was not published or deemed a “serious matter” as there was no evidence of intent to mislead the public, and no evidence that anyone had actually been mislead. On review, the Health Professions Review Board upheld the Committee’s disposition, finding it reasonable to conclude that the underlying circumstances in each complaint were different, despite both orders being concerned with the same impugned conduct.
The existence of a Professional Conduct Record (“PCR”) was regarded as a “highly aggravating factor” in Palmer (Re), 2024 LSBC 2. The citation alleged that the registrant lawyer had failed to provide the expected quality of service, including keeping the client reasonably informed about the status of their matter, answering reasonable requests for information, and ensuring that their matter was attended to in a timely manner. The registrant had a lengthy PCR, including a recent finding of professional misconduct and one-month suspension following a citation for similar conduct. The regulator found that the PRC demonstrated a “pattern of delay and non-responsiveness”, and that persistence of such conduct over years despite repeated warnings and disciplinary action led to expectation of progressive discipline and a longer suspension. The registrant was suspended from practice for three months and ordered to pay $2,000 in costs.
In 2023, the Law Society of British Columbia (“LSBC”) made three separate decisions resulting in disbarment of a lawyer due to ungovernability. The lawyer similarly had a substantial PCR which had resulted in numerous practice reviews, conduct reviews, undertakings, an administrative suspension, and multiple citations. The first of the disbarment decisions (Law Society of BC v. Guo, 2023 LSBC 46) was in relation to a finding of professional misconduct by acting in a conflict of interest and making false or misleading statements to the LSBC. The second (Law Society of BC v. Guo, 2024 LSBC 11) was with respect to again acting in a conflict of interest, breaching trust accounting rules, and making misrepresentations to the LSBC during an investigation. The third (Law Society of BC v. Guo, 2024 LSBC 39) was also with respect to acting in a conflict, failing to cooperate in an investigation, and breaching her duty to provide competent service. In examining her conduct, the hearing panel found that it revealed “the inability to rehabilitate” and found that “her lack of insight and failure to acknowledge her wrongful conduct shows she will not even make a serious attempt to reform”. The decisions also documented difficulties encountered while she was subject to a practice supervision agreement, which was aimed toward assisting her to rehabilitate her practice. The panel noted that ungovernability can be found in instances of pervasive, extremely serious misconduct, or repeated less serious conduct – in this way, it is closely tied to the principle of progressive discipline and recognizes that sometimes, progressive sanctions will reach the point of determination that a registrant will not accept the authority of the regulator and therefore cannot continue as a professional.
Regulators are entitled to look to past behaviour when considering whether a registrant may be rehabilitated, or needs to be deterred by more significant disciplinary action. As in many decisions, there is discretion to consider the totality of the circumstances, and what is required to fulfil the regulator’s obligation to protect the public.
Complainants v. College of Naturopathic Physicians of British Columbia (No. 1), 2022 BCHPRB 93
Palmer (Re), 2024 LSBC 2
Law Society of BC v. Guo, 2023 LSBC 46, 2024 LSBC 11, 2024 LSBC 39
Sabrina Zhu