May 20, 2013

Conduct unbecoming of a professional: loud, verbally aggressive, and egregiously profane outbursts

Administrative Law
Professional Regulation

A professional may be responsible for “unprofessional conduct” in his private life, such as where the professional engages in a loud, verbal exchange with other parents at a school concert, in the presence of children. This is illustrated in Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821, although notably, the charge of unprofessional “off-duty” conduct at the concert was arguably one of the lesser charges against the professional, which included sexual abuse of a patient.

The College made out six of seven allegations against Dr. R at a discipline hearing, including his having sexual intercourse with a patient, his assault a female driver during a “road rage” incident, and his engaging in a verbal altercation with a parent at a school concert. Dr. R brought an appeal only of the finding of sexual abuse, and of “conduct unbecoming a physician” at the school concert.

Findings relating to “conduct unbecoming”: The Discipline Committee found that Dr. R’s conduct at the school concert was a “loud, verbally aggressive, and egregiously profane outburst, while in a state of rage, at a school concert” where children and their families were present. [20] Dr. R asserted that, “there must be a limit to the extent to which the Discipline Committee can probe into a member’s private life, particularly here, where no patient was directly affected.” [21]

A majority of the court upheld the finding of “conduct unbecoming a physician,” stating that the conduct was not “purely private conduct or simply rude behaviour”. [24] The finding was reasonable, “given the primary school setting, with children present; the profane and demeaning language used against another parent; and the aggressive manner of the appellant described by the witnesses.” The physician’s conduct “resulted in a recognizance in which the appellant was ordered to keep the peace.” A penalty for the “conduct unbecoming” was not an issue, however, since Dr. R had his certificate of registration revoked based on the finding that he sexually abused a patient. [25]

One justice dissented, however, on the finding of conduct unbecoming. Lederer J. set out the limits of unprofessional conduct:

[30] It cannot be that a Discipline Committee of a professional college is free, under the auspices of reasonableness, to impose limits on the everyday social behaviour of its members. Not every act undertaken by a physician that would generally be understood to be unacceptable would fall within a “range of possible acceptable outcomes” that included conduct unbecoming a physician…. [citing the Dunsmuir case] In short, “…some but not all off-duty conduct can give rise to discipline for professional misconduct or conduct unbecoming…. [citing Fountain v. College of Teachers (British Columbia) 2007 BCSC 830 at para. 65)]

The dissenting justice pointed out that while three witnesses described Dr. R as “aggressive, confrontational and used thoroughly foul language,” [31] the Discipline Committee did not explain why this conduct, as opposed to other rude behaviour, “crosses the line,” [31] and did not explain why it reflected on Dr. R’s professional integrity, how his actions were relevant to the practice of medicine, or how it impaired his ability to function as a doctor. [37]

The division on the court emphasizes the need for a Discipline Committee to discern, and clearly articulate, how “off-duty” conduct impacts the profession, or the professional’s ability to carry out professional duties, when deciding if “off-duty” conduct is unprofessional or “unbecoming” a member of the profession.

Findings relating to sexual abuse: The court also drew other conclusions about how the Discipline Committee addressed the allegation of a sexual relationship with a patient:

Failure to sever the sexual abuse allegation from other allegations: Dr. R had applied to sever the sexual abuse allegations from the other allegations, but the Discipline Committee declined, on the basis Dr. R would suffer no unfairness if all matters were heard together. [11] On appeal, the court upheld this finding, as nothing in the reasons of the Discipline Committee suggested the finding on sexual abuse had been influenced by a view that Dr. R was an individual who was “out of control”. In other words, no evidence showed that the Discipline Committee engaged in “propensity reasoning” or improperly considered evidence from one allegation in deciding another allegation.

Credibility assessment: Relating to the allegation of sexual abuse, Dr. R challenged the Discipline Committee’s reliance on the evidence of a witness, M.T., due to her testimony being “filled with inconsistencies” and lacking corroboration. But the court upheld the finding of a sexual relationship, finding her account uncontradicted (as Dr. R did not testify), that hundreds of cell phone calls had occurred between M.T. and Dr. R, that Dr. R had co-signed a loan (and lied about her employment status) so that she could buy a car, and that Dr. R had left her a voice mail saying they should meet at their “usual place”. [17]

NAF Comment: A key part of the legal test for unprofessional conduct is the whether the conduct lowers the reputation of the profession in the eyes of a reasonable and informed person. A reasonable and informed person would be aware of the actor’s professional status.  In this case the Court did not expressly identify that the other parents at the school concert knew Dr. R was a physician, be we think it a fair assumption given he was a parent whom some of the other parents knew was a physician.

Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821