The Doctor’s Lawyer: Breaching privacy a cardinal offence

The Ontario Physicians and Surgeons Discipline Tribunal recently released its tribunal outcomes for June. Apart from revocation for sexual misconduct, the harshest penalty this month was a 14-month suspension for breaching patient privacy. What happened? In June 2018, a dermatologist received her certificate of registration authorizing independent practice from the College of Physicians and Surgeons of Ontario (CPSO). Only seven years later, she has had her certificate of registration suspended for 14 months for a serious lapse in judgment: texting pictures of patient records to her “close personal” friend. The “close personal” friend was also her patient. The physician entered into an agreed statement of facts and joint submission on penalty (a plea deal). Notably, the discipline tribunal acknowledged in its decision that a 14-month suspension was higher than previous suspensions in all similar cases. The tribunal explained that it would nonetheless accept this heavy-handed suspension (agreed to by the physician) because there were two types of disgraceful, dishonourable and unprofessional conduct: the relationship with the patient and the texting of the patient records. In its decision to accept the 14-month suspension, the tribunal specifically set out that previous penalties for treating friends/family members attracted suspensions ranging from five to 12 months, and suspensions related to privacy breaches ranged from four to five months. Hence, it concluded that 14 months was acceptable in this case. Read: Brooke Shekter: The Doctor’s Lawyer: Agreeing to a plea? What to knowWhat does this mean? It is important to understand that in cases where the physician enters into an agreed statement of facts and joint submission on penalty with the CPSO, it means that the two sides present to the tribunal an already-agreed upon penalty. In those cases, the tribunal can only reject the joint submission if the penalty is “so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning” of the college’s professional discipline process. This is the threshold established by the Supreme Court of Canada in R v Anthony Cook (2016) and which has been adopted by the tribunal. In other words: the penalty has to be “completely unacceptable, unusual or unconscionable” for the tribunal to reject a joint submission (CPSO v. Matheson (2022)). It is an onerous threshold and it is highly unusual for the tribunal to reject a joint submission on penalty. It is, however, unusual for the tribunal—albeit on a joint submission—to tally up the average suspensions of the two separate issues in order to justify accepting the 14 month suspension. Historically, the decisions of the discipline tribunal have imposed penalties based on the totality of the circumstances of the case—not a mathematical equation based on the number of specified acts of professional misconduct. Once the facts of a case are sufficient to attract a referral to the discipline tribunal, it is not difficult for the CPSO to charge a physician with multiple acts of professional misconduct as defined under the Medicine Act regulations. For example, a breach of any of the specified acts could also—hypothetically—attract simultaneous charges for failing to maintain the standard of practice of the profession (s.1(1)2), disgraceful, dishonourable or unprofessional conduct (s.1(1)33) and/or conduct unbecoming (s.1(1)(34). Tallying the months for a suspension in the manner in which the Ttribunal did in this particular case is relatively similar to the mechanics of a criminal sentence. However, the tribunal is an administrative body, not a court. The evidentiary threshold before the tribunal is a “balance of probabilities” based on “clear, cogent and convincing” evidence—not “beyond a reasonable doubt” as in the criminal context. Further—and apart from sexual abuse—there are not specified professional misconduct sentences in the same way there are pre-determined sentences under the criminal code. Surely, we ought not to be calculating professional sentences in a manner similar to the criminal context while using a distinctly lower threshold to convict before the tribunal. The bottom line? It is easy for physicians to feel pressured to accept joint submissions on penalty. This is particularly true in cases, such as this one, where the allegations of misconduct are nearly undisputable (i.e. in text message). At the same time, physicians have a right to a contested hearing—if they choose. If you find yourself in a similar situation, ask your lawyer not only to go over similar case law with you but to justify the penalty that is being proposed, so that you can properly evaluate your decision before agreeing to a plea. Brooke L. Shekter is the managing partner of Lloyd Shekter Health Law.

The Doctor’s Lawyer: Breaching privacy a cardinal offence

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