April 30, 2015

May remedial penalties be endless?

Administrative Law
Professional Regulation

When a discipline hearing panel finds that a respondent must undergo remedial steps, but does not know what steps may be adequate to achieve the results it desires, a panel may feel inclined to reserve some discretion to make further orders. The power of a panel to make “fresh” orders has limits, however, due to the jurisdiction of a discipline committee ending once it makes a disciplinary order, e.g., under section 39(2) of BC’s Health Professions Act.

The limit of a discipline committee’s discretion is illustrated in the recent decision of the Alberta Court of Appeal, about an order of the Council of the College of Physical Therapists of Alberta. As a result of the Council finding a professional “guilty” of failing to maintain patient charts, and improperly seeking guidance from a patient’s lawyer, the Council ordered that the professional undergo inspection reviews, but also purported to allow the college’s registrar to refer further concerns to the Council for further penalty.

The Alberta Court of Appeal found that the Council was functus officio, meaning its jurisdiction had been exhausted: “[7] … The emphasized portion of the condition leaves open the prospect of the Discipline Committee and ultimately the Council revisiting the question of penalty in respect of the very same charges. The principle of finality would, in our opinion, be thereby breached.” The court recognized, however, that the college could address further concerns through additional charges, or take other remedial, non-punitive action.

Hearing panels attempting to create remedial programs should structure their orders so that all requirements are imposed at the outset, even if suspended in effect, as any attempt to later impose “new” restrictions risk a court finding that the measure infringes on the principle of finality.

Alberta College of Physical Therapists v. Fitzpatrick, 2015 ABCA 95

Michael Ng